IMPORTANT POINTS
(1) Compassionate Appointment – Descent cannot be a ground for denying employment under scheme of compassionate appointments.
(2) Compassionate Appointment – Appellant cannot be denied consideration under scheme of compassionate appointments only because he is son of second wife.
(3) ‘Descent’ must be understood to encompass familial origins of a person – Familial origins include validity of marriage of parents of a claimant of compassionate appointment claimant’s legitimacy as their child.

JUDGMENT

Pamidighantam Sri Narasimha, J.

Leave granted.

2. The short issue arising for consideration, in this case, is whether the condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is legally sustainable. Having considered the matter, we have agreed with the counsel for the appellant that the issue is covered by the judgment of this Court in Union of India v. V.R. Tripathi., (2019) 14 SCC 646. We have allowed the appeal on this ground. We have also held that such a denial is discriminatory, being only on the ground of descent under Article 16(2) of the Constitution of India. We shall first refer to the facts of the case before applying the law for disposal of this appeal.

Facts:

3. The facts, in brief, are that Jagdish Harijan was an employee of the Indian Railways appointed on 16.11.1977. In his lifetime, Shri Jagdish Harijan had two wives, appellant No.2, Gayatri Devi, was his first wife and Konika Devi, since deceased, was his second wife. The appellant No. 1 Mukesh Kumar is his son through his second wife. Shri Jagdish Harijan died in service on 24.02.2014. Shortly after that, the appellant No.2 made a representation dated 17.05.2014 seeking the appointment of her step-son/appellant No.l under the scheme for appointments on compassionate grounds. The Respondent-Union rejected the representation on 24.06.2014 because appellant No.l, being the second wife's son, is not entitled to such an appointment. The departmental appeal came to be dismissed on 30.12.2015. The appellants filed an original application before the Central Administrative Tribunal, Patna, which was dismissed on 19.07.2017. A writ petition was filed before the High Court of Patna questioning the correctness of the decision of the Tribunal by relying on two decisions of the Madras High Court, which followed the Calcutta High Court decision in the case of Namita Goldar and Anr. v. Union of India and Ors. (2010) 1 CalLJ 464 under which the very same circular of the railways dated 02.01.1992 was quashed. The Division Bench of the High Court, however, by the impugned order, dismissed the writ petition.

Arguments of Counsel:

4. The learned Counsel for the Appellants, Shri Manish Kumar Saran, submitted that the issue is covered by the decision of this Court in Union of India v. V.R. Tripathi (supra) 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. He also relied on the judgment of the High Court of Calcutta in Namita Goldar (supra), which has been approved by this Court in V.R. Tripathi.

5. The learned Counsel for the Respondents, Smt. Meera Patel, representing the Union submitted based on the statement in the counter affidavit. The counter refers to Circular No. E(NG) 11/2018/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. She further submitted that the judgment of this Court relied on by the appellants does not direct appointment but merely provides for consideration of the application. Therefore, there cannot be a direction for appointment as prayed by the appellant.

Analysis:

6. It is true that the matter is no more res Integra. This Court in V.R. Tripathi considered the very same policy and circular that arise for the consideration in the present case. The judgment covers the issue, as is evident from the following passages:

"14. The real issue in the present case, however, is whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marria