Mukesh Kumar & Anr v. the Union of India & Ors.

PAMIDIGHANTAM SRI NARASIMHA, J. 1. Leave granted. 2. The short issue arising for consideration, in this case, is whether the condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is legally sustainable. Having considered the matter, we have agreed with the counsel for the appellant that the issue is covered by the judgment of this Court in Union of India v. V.R. Tripathi.1 We have allowed the appeal on this ground. We have also held that such a denial is discriminatory, being only on the ground of descent under Article 16(2) of the Constitution of India. We shall first refer to the facts of the case before applying the law for disposal of this appeal. Facts: 3. The facts, in brief, are that Jagdish Harijan was an employee of the Indian Railways appointed on 16.11.1977. In his lifetime, S hri Jagdish Harijan had two wives, appellant No.2, Gayatri Devi, w as his first wife and Konika Devi, since deceased, was his second wi fe. The appellant No.1 Mukesh Kumar is his son through his second wife. Shri Jagdish Harijan died in service on 24.02.2014. Shortly after that, th e appellant No.2 made a representation dated 17.05.2014 seeking the appointment of her step-son/appellant No.1 under the scheme for appointments on compassionate grounds. The Respondent-Union rejected the representation on 24.06.2014 because appellant No.1, being t he second wife’s son, is not entitled to such an appoi ntment. The departmental appeal came to be dismissed on 30.12.2015. The appellants 1 Union of India v. V.R. Tripathi, (2019) 14 SCC 646. 647 filed an original application before the Central Administrative Tribunal, Patna, which was dismissed on 19.07.2017. A writ petition was fi led before the High Court of Patna questioning the correctness of the decision of the Tribunal by relying on two decisions of the Madras High Court, which followed the Calcutta High Court decision in the case of Namita Goldar and Anr. v. Union of India and Ors.(2010) 1 Cal. LJ 464under which the very same circular of the railways dated 02.01.19 92 was quashed. The Division Bench of the High Court, however, by the impugned order, dismissed the writ petition. Arguments of Counsel: 4. The learned Counsel for the Appellants, Shri Manish Kumar Saran, submitted that the issue is covered by the decision of this Court in Union of India v. V.R. Tripathi (supra) wherein, in the context of this very circular and policy of the railways, it held that a child of a second wife of an employee could not be denied compassionate appointment on that ground alone. He also relied on the judgment of the High Court of Calcutta in Namita Goldar (supra), which has been approved by this Court in V.R. Tripathi. 5. The learned Counsel for the Respondents, Smt. Meera Patel, representing the Union submitted based on the statement in the counter affidavit. The counter refers to Circular No. E(NG) II/2018/RC-1/5 dated 21.03.2018 issued in supersession of Circular dated 02.01.1992, which provides that if a legally wedded surviving widow does not want herself to be considered, she cannot nominate the illegitimate sons/daughters of her husband for compassionate appointment. She further submitted that the judgment of this Court relied on by the appellants does not direct appointment but merely provides for consideration of the a pplication. Therefore, there cannot be a direction for appointment as prayed by the appellant. Analysis: 6. It is true that the matter is no more res integra. This Court in V.R. Tripathiconsidered the very same policy and circular that arise for the consideration in the present case. The judgment covers the issue, as is evident from the following passages: “14. The real issue in the present case, however, is whether the condition which has been imposed by the circular of th e Railway Board under which compassionate appointment MUKESH KUMAR & ANR v. THE UNION OF INDIA & ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.] cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage w as permitted by the administration taking into account persona l law, etc.) accords with basic notions of fairness a nd equal treatment, so as to be consistent with Article 14 o f the Constitution…. 16. The issue essentially is whether it is open to an empl oyer, who is amenable to Part III of the Constitution to d eny the benefit of compassionate appointment which is avail able to other legitimate children. Undoubtedly, while desig ning a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay dow n a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointme nt is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage o f a deceased employee may face, compassionate appointmen t is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsis ting to be legitimate, it would not be open to the State, consis tent with Article 14 to exclude such a child from seeking the bene fit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires. 17. Even if the narrow classification test is adopt ed, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarde d a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is al one made entitled to the benefit of compassionate appoi ntment. The salutary purpose underlying the grant of compassion ate appointment, which is to prevent destitution and pe nury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned 649 Additional Solicitor General has urged that it is open t o the State, as part of its policy of discouraging bigamy to res trict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the sp ouse of a subsequent marriage and the children. We are h ere concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have be en deemed legitimate by the operation of law, the cond ition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object o f a scheme of compassionate appointment, once the law h as treated such children as legitimate, it would be impermissibl e to exclude them from being considered for compassio nate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a ch ild of a void marriage as legitimate is deeply offensive t o their dignity and is offensive to the constitutional guarantee agains t discrimination. 18. …The exclusion of one class of legitimate childr en from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceas ed employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be of fensive to and defeat the whole object of ensuring the dignity of t he family of a deceased employee who has died in harnes s. It brings about unconstitutional discrimination betwee n one class of legitimate beneficiaries — legitimate children .” 7. This Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is sub sisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children wou ld fail to meet the test of nexus with the object, and it would defeat the purpose MUKESH KUMAR & ANR v. THE UNION OF INDIA & ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.] of ensuring the dignity of the family of the deceased employe e. This judgment has now been followed by a number of High Courts as well.2 8. Apart from the discrimination ensuing from treating equal s unequally, which is writ large as demonstrated in the judgment of this Court referred to above, there is also discrimination on th e ground of descent, which is expressly prohibited under Article 16(2). In V. Sivamurthy v. State of A.P. 3, this Court observed that appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognized exceptio n to the general rule if they are carved out in the interest of justice to meet public policy considerations.4 It lends justification only that far and no further. 2 See, K. Santhosha v. Karnataka Power Transmission Corp Ltd. 2022(1) Kant LJ 154 (Decided on 24.06.2021 by The High Court of Karnata ka); Yuvraj DajeeKhadake v. Union of India : 2019 SCC OnLine Bom 299 (Decided on 21.02.2019 by The High Court of Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decided on 24.01.2020 by The High Court of Delhi) 3 V. Sivamurthy v. State of A.P. and Ors., (2008) 13 SCC 730: “18. The principles relating to compassionate appoin tments may be summarised thus; (a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regar d to Articles 14 and 16 of the Constitution of India. Though no other mode of appo intment is permissible, appointments on compassionate grounds are a well-re cognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies. (b) Two well-recognised contingencies which are car ved out as exceptions to the general rule are: (i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service. (ii) appointment on compassionate ground to meet th e crisis in a family on account of medical invalidation of the breadwinner. Another contingency, though less recognised, is whe re landholders lose their entire land for a public project, the scheme provid es for compassionate appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation). (c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing su ch appointments and against existing vacancies. (d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, tha t is, spouse, son or daughter and not other relatives. Such appointments should b e only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Clas s I or II posts.” 651 9. While compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compas sionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, whic h has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. In this regard, ‘descent’ must be understood to encompass the familial origins of a person. 5 Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant’s legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2). 10.We note with approval the decision of the Delhi High Court in Union of India v. Pankaj Kumar Sharma,6 to which one of us (Justice S. Ravindra Bhat) was a party, which held that descent cannot be a ground for denying employment under the scheme of compassionat e appointments. Speaking through Sanghi J., the Court held: “22. The Court is of opinion that - apart from being textuall y sound - understanding ‘descent’ in terms of prohibi ting discrimination against a person on the basis of legitimacy, or on the basis of his mother’s status as a first or secon d wife, fits within the principles underlying Article 16(2). Not onl y is one’s descent, in this sense, entirely beyond one’s contro l (and therefore, ought not to become a ground of State-sancti oned disadvantage), but it is also an established fact that children of ‘second’ wives, whether counted as illegitimate or legitimate, have often suffered severe social disadvantage. Ano ther 4 Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310 (at para 18); Further, constitutionality of compassionate appoint ments was upheld in State of Haryana v. Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union of India (1987) 1 SCC 631 (at para 17). 5 See, Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. (1961) 2 SCR 931. 6 Union of India v. Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C) No.9008/ 2014 dt 19.04.2014 MUKESH KUMAR & ANR v. THE UNION OF INDIA & ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.] significant observation here is that at the entry l evel - “legitimacy” is and cannot be a ground for denial of publ ic employment. For these reasons, this Court is of the opinion that the Petitioner’s regulation violates Article 16(2 ).” 11. Given the above, we hold that the issue arising for consideration, in this case, is covered by the judgment of this Court in Union of India and Ors. v. V.K. Tripathi and consequently the judgment and order dated 18.01.2018 of the High Court of Judicature at Patna passed in CWJC No. 18153 of 2017 is set aside. As we have held that appellant No.1, Shri Mukesh* Kumar, cannot be denied consideration under the scheme of compassionate appointments only because he is the s on of the second wife, there shall be a direction to consider his case as per the extant policy. The Authorities shall be entitled to scrutinize whether the application for compassionate appointment fulfils all other requirements in accordance with the law. The process of consider ation of the application shall be completed within a period of three months from today. 12.The appeal is accordingly allowed. Parties shall bear their own costs. Devika Gujral Appeal allowed.