Railway Board circular imposing Condition stating compassionate appointment can’t be granted to children born from second wife of a deceased employee is discriminatory: SC

Railway Board circular imposing Condition stating compassionate appointment can't be granted to children born from second wife of a deceased employee is discriminatory_ SC

The Supreme Court ruled that the railway board circular imposing condition stating compassionate appointment cannot be granted to children born from second wife of a deceased employee is discriminatory.

Background 

Jagdish Harijan was an employee of the Indian Railways. In his lifetime, Shri Jagdish Harijan had two wives, appellant Gayatri Devi, was his first wife and Konika Devi, since deceased, was his second wife. The appellant Mukesh Kumar is his son through his second wife. Jagdish Harijan died in service. Shortly after that, the appellant made a representation seeking the appointment of her step-son/appellant under the scheme for appointments on compassionate grounds. The Respondent-Union rejected the representation because the appellant being the second wife’s son, is not entitled to such an appointment. 

Arguments 

Advocate Manish Kumar Saran, appearing for the appellant, contended that the issue is covered by the decision of the Court in Union of India v. V.R. Tripathi 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.

Advocate Meera Patel, appearing for the respondent, contended that the Circular issued in supersession of Circular 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.

Decision 

The three judge bench of Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha stated 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 appointment.

The court noted that 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. 

The court further stated that 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.

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.

The court directed the authorities to scrutinize whether the application for compassionate appointment fulfills all other requirements in accordance with the law. The process of consideration of the application shall be completed within a period of three months.

Case title: Mukesh Kumar & Anr v/s The Union of India & Ors.

Citation: ARISING OUT OF SLP(C) NO. 18571/2018

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