Compassionate appointments cannot be denied to child of second wife - SC

In this case, the question is whether the Railway Board's condition that compassionate appointments cannot be granted to children of deceased employees' second wives is legally valid.

Jagdish Harijan was an Indian Railways employee appointed on 16.11.1977.  Jagdish Harijan had two wives: appellant No. 2, Gayatri Devi, and Konika Devi, who died. Mukesh Kumar, his son by his second wife, Shri Jagdish Harijan died on 02.24.14. The appellant No.2 then made a representation dated 17.05.2014 seeking the appointment of her step-son/appellant No.1. But same was rejected by the Respondent-Union on the ground that  appellant's status as the second wife's son. Appellants filed an application before the Central Administrative Tribunal, Patna, which was dismissed. Appellant approached High Court but dismissed. Aggrieved appellant approached Apex Court.

Appellants contended that the issue is covered by the decision of Apex Court in Union of India v. V.R. Tripathi (2019) wherein, in the context of  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.

Respondent opposed the appeal on the ground that 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.

Apex Court while observing Judgement Union of India v. V.R. Tripathi, (2019) stated that 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 subsisting 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.

Apex Court held that a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That 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 16(2), including that of descent……appellant cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife.

D.D- FEBRUARY 24, 2022

MUKESH KUMAR & ANR  VERSUS THE UNION OF INDIA & ORS.