A.S. Oka, J.

1. The petitioner's father was in the employment of the Central Railway. He died in harness on 12th August 2003. The petitioner made an application for grant of employment on compassionate ground. By the impugned communication dated 6th December 2016, the respondent rejected the said application on the ground that the marriage between the petitioner's mother and the petitioner's father was solemnized during the subsistence of first marriage of the petitioner's father. The question which arises in this petition is whether the petitioner could have been denied compassionate appointment notwithstanding the provisions of section 16 of the Hindu Marriage Act, 1955 (for short “the said Act of 1955”).

2. The learned counsel appearing for the petitioner pressed into service a decision of a Division Bench of this Court in the case of Union of India and Anr. Vs. V.R. Tripathi, Judgment and order dated 1st April 2016 in Writ Petition No.910 of 2015. He submits that this judgment holds that even if a son or a daughter of an employee is born from a second marriage which is not valid, in view of section 16 of the said Act of 1955, compassionate appointment cannot be denied to the son or the daughter. Reliance was placed on a decision of Madras High Court in the case of H. Anwar Basha V. Registrar General (Incharge) and Anr., (2008) Lab IC 3370 Our attention is also invited to the decision of the Apex Court in the case of Rameshwari Devi Vs. State of Bihar and Ors., (2000) 2 SCC 431 The learned counsel appearing for the respondent urged that appointment on compassionate ground is governed by a policy. He relied upon the circular of the Railway Board dated 21st March 2018 which specifically lays down that a son or a daughter of an employee who can be treated as legitimate under section 16 of the said Act of 1955 is not entitled to seek compassionate appointment. He submitted that when the decision of this Court in the case of Union of India and Anr. Vs. V.R. Tripathi (supra) was rendered, the aforesaid circular of the Railway Board was not in existence. He invited our attention to the decision of another Division Bench at Nagpur in the case of Union of India and another vs. Pradeep Uttam Gid, Judgment and order dated 31st July 2015 in Writ Petition No.3374 of 2014. He urged that this decision takes a contrary view. He would, therefore, submit that no interference is called for.

3. We have considered the submissions. It is well settled that compassionate appointment is not a normal source of appointment and is an exception to the general rule. Entitlement to receive compassionate appointment has to be judged on the basis of rules, regulations or executive instructions which govern the same. In the case of SBI vs Raj Kumar, (2010) 11 SCC 661, the Apex Court held that:

“12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.”

(emphasis added)

4. Hence, an application for the grant of compassionate appointment is governed by the policy or the scheme which is in force on the date of consideration of the application. There was a circular issued by the Railway Board dated 2nd January 1992 which provided that where an employee who dies in harness had contracted a second marriage during the subsistence of the first marriage without obtaining permission of the Railways, the second wife or the children from the second wife will not be entitled to get compassionate appointment. In the case of Namita Goldar and Anr. Vs. Union of India and Ors., (2010) Lab IC 1465, the Calcutta High Court struck down the said circular dat