1. Compassionate appointment claim by a child born from a second marriage of a deceased employee — Denial based on administrative circular — Challenge to validity of exclusion. (Para 3 , 4 )
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2018 Supreme(SC) 1340
SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, M.R. Shah, JJ.
Union of India and Anr. - Appellants
Versus
V.R. Tripathi – Respondent
Civil Appeal No.12015, 12016 of 2018 (Arising out of SLP(C) No.32004, 34830 of 2016)
Decided On : 11-12-2018
Advocates Appeared:
For the Petitioner(s):Mr. Aman Lekhi, ASG Mr. Harish Pandey, Advocate Mrs. Anil Katiyar, Advocate Mr. Mukesh Kumar Maroria, Advocate
For the Respondent(s):Mr. Arjun Singh Bhati, Advocate Mr. Apurv Parashari, Advocate
For the Petitioner(s):Mr. Aman Lekhi, ASG Mr. Harish Pandey, Advocate Mrs. Anil Katiyar, Advocate Mr. Mukesh Kumar Maroria, Advocate
For the Respondent(s):Mr. Arjun Singh Bhati, Advocate Mr. Apurv Parashari, Advocate
Important Points
IMPORTANT POINTS
There is no right to compassionate appointment but only an entitlement, where a scheme or rules envisaging it exist, to be considered in accordance with the provisions.
A child, even if born of null and void marriage like second marriage when first spouse is living, is legitimate.
Denying compassionate appointment to one legitimate child while allowing for others is violaytive of Article 14.
A railway circular was struck down by High Court and the decision attained finality, and also accepted by Railways is will not be open to Railways to rely on the same circular.
There is no right to compassionate appointment but only an entitlement, where a scheme or rules envisaging it exist, to be considered in accordance with the provisions.
A child, even if born of null and void marriage like second marriage when first spouse is living, is legitimate.
Denying compassionate appointment to one legitimate child while allowing for others is violaytive of Article 14.
A railway circular was struck down by High Court and the decision attained finality, and also accepted by Railways is will not be open to Railways to rely on the same circular.
Subject
Employment - Compassionate Appointment
Act Referred
Headnote
(a) Service law - Compassionate appointment - There is no right to compassionate appointment but only an entitlement, where a scheme or rules envisaging it exist, to be considered in accordance with the provisions. (Para 11)
(1998) 5 SCC 192; (2010) 11 SCC 661; (2008) 13 SCC 730 – Relied upon
(b) Service law – Compassionate appointment – Section 16, Hindu Marriage Act, 1955 and Article 14, Constitution of India - A child, even if born of null and void marriage like second marriage when first spouse is living, is legitimate - Such child has a right in the property of parents - denial of compassionate appointment to child from second marriage, held, is violative of Article 14 because it differentiates between legitimate children born out of first and second marriage. (Para 13, 14, 15)
(2000) 2 SCC 431 - Relied upon
(2010) 1 Cal.LJ 464; (2016) 5 CTC 50 - Cited with approval
(2013) 3 Cal.LT 379 - Distinguished
(c) Administrative law - A circular struck down by High Court and the decision attaining finality - Accepted by Railways - Not open to Railways to rely on the same circular. (Para 20)
Facts of the case:
The father of the respondent, Ramlakhan Tripathi was employed as a Technician, Grade-I in Central Railways at Mumbai. He died in harness on 28 November 2009. The deceased employee had contracted a second marriage during the subsistence of his first marriage. The respondent is the son born from the second marriage of the employee. The second marriage, as it appears, was contracted in 1987. The respondent applied for compassionate appointment on the death of his father. The application was rejected on 6 March 2012 by the Railway Authorities. Aggrieved by the denial of compassionate appointment, the respondent moved an Original Application before the Central Administrative Tribunal. The Tribunal having held in favour of the respondent and upon the dismissal of a petition seeking review, the Union of India and the Railway Authorities instituted writ proceedings before the Bombay High Court.
High Court found no reason to differ with the view of the Central Administrative Tribunal and observed that the direction to the railway authorities was only to consider the case of the respondent for compassionate appointment on its merits.
Finding of the Court:
A child, even if born of null and void marriage like second marriage when first spouse is living, is legitimate.
Result: Civil Appeal 12015 of 2018 dismissed and Civil Appeal 12016 of 2018 disposed of.
Legal Category Hierarchy
Table of Contents
2. Whether compassionate appointment is a heritable right — Validity of excluding children of void marriages to discourage bigamy — Interpretation of legitimacy under Section 16, Hindu Marriage Act. (Para 7 , 8 )
3. Compassionate appointment aims to prevent destitution — Legitimacy under Section 16, Hindu Marriage Act protects children — Exclusion of legitimate children is arbitrary and violates Article 14. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 18 )
4. Children deemed legitimate under Section 16, Hindu Marriage Act, 1955 cannot be excluded from compassionate appointment schemes as such discrimination is arbitrary and violates Article 14. (Para 14 , 15 , 16 , 18 )
5. Appeal dismissed — Authorities directed to consider the application for compassionate appointment on merits within three months. (Para 21 , 23 , 24 )
6. Is compassionate appointment a matter of right or a heritable property?
No, it is not a source of recruitment or a heritable right. It is an exception to general recruitment rules, intended to alleviate sudden financial crisis and prevent destitution in the family of a deceased employee. (Para 10 , 11 )
7. Does Section 16 of the Hindu Marriage Act, 1955 confer legitimacy on children born from void marriages?
Yes, Section 16(1) stipulates that children born from marriages that are null and void under Section 11 are legitimate, regardless of whether the birth occurred before or after the 1976 Amendment. (Para 12 , 13 )
8. Can the State exclude children born from a second marriage from compassionate appointment to discourage bigamy?
No. Once the law treats such children as legitimate, excluding them is arbitrary, disproportionate to the object of discouraging bigamy, and violates the constitutional guarantee against discrimination under Article 14. (Para 14 , 15 , 16 )
9. Does the restriction on property rights under Section 16(3) of the Hindu Marriage Act affect the legitimacy of the child?
No. While Section 16(3) restricts the child's property rights to those of the parents, it does not affect the principle of legitimacy declared in Section 16(1). (Para 18 )
JUDGMENT :
Dhananjaya Y. Chandrachud, J.
CIVIL APPEAL No.12015 OF 2018
1. Leave granted.
2. This appeal arises from a judgment of a Division Bench of the Bombay High Court dated 1 April 2016.
3. The father of the respondent, Ramlakhan Tripathi was employed as a Technician, Grade-I in Central Railways at Mumbai. He died in harness on 28 November 2009. The deceased employee had contracted a second marriage during the subsistence of his first marriage. The respondent is the son born from the second marriage of the employee. The second marriage, as it appears, was contracted in 1987. The respondent applied for compassionate appointment on the death of his father. The application was rejected on 6 March 2012 by the Railway Authorities. Aggrieved by the denial of compassionate appointment, the respondent moved an Original Application before the Central Administrative Tribunal. The Tribunal having held in favour of the respondent and upon the dismissal of a petition seeking review, the Union of India and the Railway Authorities instituted writ proceedings before the Bombay High Court.
4. In support of the writ petition, the appellants relied upon a circular of the Railway Board dated 2 January 1992. The said circular is extracted below:
“Government of India
Ministry of Railway
(Railway Board)
R.B.E. No.1 of 1992
Supplementary Circular
No.5 to Master CIRCULAR
The General Manager(P)
C. Rly. and others
Sub: Appointment on Compassionate grounds cases of second widow and her wards.
It is clarified that in the case of railway employees dying in harness etc. leaving more than one widow along with children born to the 2nd wife, while settlement dues may be shared by both the widows due to Court orders or otherwise on merits of each case, appointments on compassionate grounds to the second widow and her children are not to be considered unless the administration has permitted the second marriage, in special circumstances, taking into account the persons law etc.
2. The fact that the second marriage is not permissible is invariably clarified in the terms and conditions advised to the offer of initial appointment.
3. This may be kept in view and the cases for compassionate appointment to the second widow or her wards need not be forwarded to Railway Board.
4. Kindly acknowledge receipt.
Sd/-
(P.L.N. Sarma)
Deputy Director, Estt. (N)
Railway Board”
5. The High Court held that:
(i) Section 16 of the Hindu Marriage Act, 1955 recognizes the legitimacy of a child born from a marriage which is null and void under the provisions of Section 11;
(ii) The circular of the Railway Board dated 2 January 1992 has been set aside by a Division Bench of the Calcutta High Court in Namita Goldar v Union of India, (2010) 1 Cal.LJ 464 ; and
(iii) In the decision of this Court in Rameshwari Devi v State of Bihar, (2000) 2 SCC 431 the entitlement of the family of a deceased employee to pensionary benefits has been upheld notwithstanding the fact that the deceased had, during his lifetime, contracted a second marriage.
6. Principally on the above foundation, the High Court found no reason to differ with the view of the Central Administrative Tribunal and observed that the direction to the railway authorities was only to consider the case of the respondent for compassionate appointment on its merits.
7. Assailing the judgment of the High Court, Mr. Aman Lekhi, learned Additional Solicitor General submitted that:
(i) Compassionate appointment is not an alternate source of employment or recruitment;
(ii) Compassionate appointment is not a matter of a heritable right and depends on the extant rules or schemes under which such benefits or facilities are envisaged;
(iii) Section 16(3) of the Hindu Marriage Act, 1955 envisages that a child born from a marriage which is void under Section 11 has a claim only in respect of the property of the parents and no further;
(iv) The decision of this Court in Rameshwari Devi (supra) is distinguishable since pension, it is well settled, is a matter of right as a result
