Policy for compassionate appointment cannot discriminate against person by classifying deceased employee’s children as legitimate/illegitimate and recognizing only legitimate descendant’s right: SC

Read Judgment: Mukesh Kumar & Anr V. The Union of India & Ors. 

Pankaj Bajpai

New Delhi, February 25, 2022: Relying on its decision in Union of India v. V.R. Tripathi, (2019) 14 SCC 646 , the Supreme Court has held that while 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 Constitution and must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent.

A Larger Bench of Justice Pamidighantam Sri Narsimha, Justice Uday Umesh Lalit and Justice S. Ravindra Bhat observed that policy for compassionate appointment 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. 

Going by the background of the case, Jagdish Harijan, an employee of the Indian Railways appointed on November 16, 1977, had two wives in his lifetime, namely Gayatri Devi (second appellant – first wife) and Konika Devi, since deceased (second wife). Mukesh Kumar (first appellant) is son of Jagdish through his second wife. After death of Jagdish Harijan during his service, Gayatri Devi made a representation seeking the appointment of her step-son on compassionate grounds. The Respondent-Union rejected the representation, on the ground that first appellant being the second wife’s son, is not entitled to such an appointment. Such decision was upheld by the Central Administrative Tribunal (CAT) as well as the High Court of Patna. 

After considering the submissions, the Larger Bench found that the matter is no more res integra, as this Court in V.R. Tripathi’s Case (Supra) had considered the very same policy and circular that arise for the consideration in the present case.

The Bench noted that in V.R. Tripathi’s Case (Supra), it was observed that the purpose of compassionate appointment 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 of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration.

It was also held therein that once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires. 

Accordingly, the Apex Court held that the issue arising for consideration, in this case, was covered by the judgment of this Court in V.R. Tripathi’s Case (Supra) and consequently set aside the judgment and order of the High Court of Judicature at Patna.

However, though the first appellant cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife, there shall be a direction to consider his case as per the extant policy, added the Court.