Child born from second wife of deceased employee is eligible for compassionate appointment SC
New Delhi Feb 24 PTI A child born from the second wife of a deceased employee is eligible for compassionate appointment the Supreme Court on Thursday said as it held that a policy which has the force of law must not discriminate on grounds including that of descentThe top court said that while the compassionate appointment is an exception to the constitutional guarantee under Article 16 a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16 of the ConstitutionA bench of Justices UU Lalit S Ravindra Bhat and PS Narasimha set aside a Patna High Court order of January 18 2018 and said that one Mukesh Kumar cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife and there shall be a direction to consider his case as per the extant policy of the railwaysThe Authorities shall be entitled to scrutinize whether the application for compassionate appointment fulfils all other requirements in accordance with the law The process of consideration of the application shall be completed within a period of three months from today it saidThe bench said that once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointmentThat is to say a policy for compassionate appointment which has the force of law must not discriminate on any of the grounds mentioned in Article 162 including that of descent In this regard descent must be understood to encompass the familial origins of a person Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimants legitimacy as their child it saidThe bench said that 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 descendantApart from the fact that strict scrutiny would reveal that the classification is suspect as demonstrated by this Court in VR Tripathi 2019 verdict it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent Such a policy is violative of Article 162 the bench saidThe bench referred to the 2019 verdict and said that this Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the ConstitutionThe 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 would fail to meet the test of nexus with the object and it would defeat the purpose of ensuring the dignity of the family of the deceased employee it saidThe top court said that apart from the discrimination ensuing from treating equals unequally which is writ large as demonstrated in the judgement of this Court 2019 verdict there is also discrimination on the ground of descent which is expressly prohibited under Article 162However compassionate appointments are a well-recognized exception to the general rule if they are carved out in the interest of justice to meet public policy considerations It lends justification only that far and no further it addedAdvocate Manish Kumar Saran appearing for the petitioner submitted that the issue is covered by the decision of this Court given in VR Tripathi 2019 verdict which is in the context of this very circular and policy of the railways by which it was held that a child of a second wife of an employee could not be denied compassionate appointment on that ground aloneAdvocate Meera Patel representing the Centre referred to the Circular of March 21 2018 issued in supersession of Circular dated January 2 1992 which provides that if a legally wedded surviving widow does not want herself to be considered she cannot nominate the illegitimate sonsdaughters of her husband for compassionate appointmentThe top court noted the facts of the case that one Jagdish Harijan was an employee of the Indian Railways appointed on November 16 1977 and in his lifetime he had two wives One Gayatri Devi was his first wife and Konika Devi since deceased was his second wife and the petitioner Mukesh Kumar is the son through the second wifeHarijan died in service on February 24 2014 and shortly after that Gayatri Devi made a representation dated May 17 2014 seeking the appointment of her step-son Mukesh Kumar under the scheme for appointments on compassionate groundsThe Centre rejected the representation on June 24 2014 because Kumar being the second wifes son is not entitled to such an appointmentThe petitions filed before the Central Administrative Tribunal and the Patna High Court were also dismissed subsequently after which the issue reached the top court PTI MNL MNL RKS RKS
New Delhi Feb 24 PTI A child born from the second wife of a deceased employee is eligible for compassionate appointment the Supreme Court on Thursday said as it held that a policy which has the force of law must not discriminate on grounds including that of descentThe top court said that while the compassionate appointment is an exception to the constitutional guarantee under Article 16 a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16 of the ConstitutionA bench of Justices UU Lalit S Ravindra Bhat and PS Narasimha set aside a Patna High Court order of January 18 2018 and said that one Mukesh Kumar cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife and there shall be a direction to consider his case as per the extant policy of the railwaysThe Authorities shall be entitled to scrutinize whether the application for compassionate appointment fulfils all other requirements in accordance with the law The process of consideration of the application shall be completed within a period of three months from today it saidThe bench said that once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointmentThat is to say a policy for compassionate appointment which has the force of law must not discriminate on any of the grounds mentioned in Article 162 including that of descent In this regard descent must be understood to encompass the familial origins of a person Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimants legitimacy as their child it saidThe bench said that 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 descendantApart from the fact that strict scrutiny would reveal that the classification is suspect as demonstrated by this Court in VR Tripathi 2019 verdict it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent Such a policy is violative of Article 162 the bench saidThe bench referred to the 2019 verdict and said that this Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the ConstitutionThe 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 would fail to meet the test of nexus with the object and it would defeat the purpose of ensuring the dignity of the family of the deceased employee it saidThe top court said that apart from the discrimination ensuing from treating equals unequally which is writ large as demonstrated in the judgement of this Court 2019 verdict there is also discrimination on the ground of descent which is expressly prohibited under Article 162However compassionate appointments are a well-recognized exception to the general rule if they are carved out in the interest of justice to meet public policy considerations It lends justification only that far and no further it addedAdvocate Manish Kumar Saran appearing for the petitioner submitted that the issue is covered by the decision of this Court given in VR Tripathi 2019 verdict which is in the context of this very circular and policy of the railways by which it was held that a child of a second wife of an employee could not be denied compassionate appointment on that ground aloneAdvocate Meera Patel representing the Centre referred to the Circular of March 21 2018 issued in supersession of Circular dated January 2 1992 which provides that if a legally wedded surviving widow does not want herself to be considered she cannot nominate the illegitimate sonsdaughters of her husband for compassionate appointmentThe top court noted the facts of the case that one Jagdish Harijan was an employee of the Indian Railways appointed on November 16 1977 and in his lifetime he had two wives One Gayatri Devi was his first wife and Konika Devi since deceased was his second wife and the petitioner Mukesh Kumar is the son through the second wifeHarijan died in service on February 24 2014 and shortly after that Gayatri Devi made a representation dated May 17 2014 seeking the appointment of her step-son Mukesh Kumar under the scheme for appointments on compassionate groundsThe Centre rejected the representation on June 24 2014 because Kumar being the second wifes son is not entitled to such an appointmentThe petitions filed before the Central Administrative Tribunal and the Patna High Court were also dismissed subsequently after which the issue reached the top court PTI MNL MNL RKS RKS
