Compassionate appointment can be granted to children from second wife: Supreme Court

The Supreme Court on Thursday held that condition imposed by a Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is discriminatory [Mukesh Kumar vs Union of India]..A Bench of Justices UU Lalit, Ravindra Bhat and PS Narasinmha noted that the same is violative of Article 16(2) of the Constitution that among other things, prohibits discrimination in State employment based on descent. "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 ... 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 claimant’s legitimacy as their child," the Bench observed.The top court was considering an appeal against a judgment of the Patna High Court that upheld the circular of the Railway Board denying compassionate appointment to the children of a deceased employee born out of his second wife..The Supreme Court stated that 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..By way of background, after the employee's death, the son from the second wife applied for induction in the Railways under compassionate appointment scheme. The application was dismissed, and the dismissal was upheld in a departmental appeal by the Central Administrative Tribunal and thereafter by the Patna High Court..On appeal, the Supreme Court held that 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..The Court noted that in Union of India vs VR Tripathi, the top court had 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 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 judgment said..The Railway Board circular creates two categories between one class, and it has no nexus to the objects sought to be achieved, the Court ruled.."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," the verdict stated..Thus, the Court held that the appellant, Manish Kumar, cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife and directed that his case be considered as per the 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 consideration of the application shall be completed within a period of three months from today," the top court ruled..[Read Judgment]