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.

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