The denial of compassionate appointment to the children of a second wife is unconstitutional as it violates Article 16(2) of the Constitution of India by discriminating against them on the ground of descent, rendering any restrictive policy invalid.

ORDER

Shri Rajesh Kumar, learned counsel for the applicant and Shri Kamleshwar Singh, learned counsel for the respondents, are present.

2. The instant original application has been filed seeking following relief:

“(i) To issue an order or direction to quash and set aside the impugned order dated 24.08.2022 and 28.09.2022 (Annexure A- 1) passed by Respondent no. 3.

(ii) This Hon’ble Tribunal may please to hold that the applicant no 2 is entitled to appointment on compassionate grounds and direct the respondent no 2 to consider the applicant for appointment on compassionate ground.

(iii) Issue any further orders or direction, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.

(iv) Award the appropriate cost in favour of the applicants.”

3. The compendium of the facts narrated in the instant original application is that the applicants are aggrieved by the impugned orders dated 24.08.2022 and 28.09.2022 passed by the respondent no. 3 by way of which their claim for appointment of applicant no 2 on compassionate grounds has been rejected by the respondents citing the ground that he is the son of the second wife of the deceased employee. The applicants seek quashing of the above impugned order with a direction to the respondents to appoint the applicant no 2 on compassionate grounds.

4. I have heard the rival contentions advanced by the learned counsel appearing for the parties.

5. Disclosing a brief history of the case, learned counsel for the applicants submits that the applicant no 1 is the wife of the deceased employee Late Ram Sanehi and the applicant no 2 is the son of the deceased employee. It is argued that the father of the applicant no 2 was a permanent employee of the respondents’ department and he died on 15.04.2013 in harness. It is argued that Late Ram Sanehi was married with one Satyabhama who on 08.03.1983 took divorce from Ram Sanehi through village Panchayat and eloped with someone else. Subsequently, on 23.06.1988, the late employee married to the applicant no 1 and intimated the same to the respondents vide letter dated 09.06.1989 so much so that the name of the applicant no 1 is already endorsed in service record and has also been nominated as 100% nominee of the late employee. Also, all the settlement dues pertaining to the late employee have been released in favour of the applicant no 1. It is further argued since there was no means to sustain livelihood, the applicant no 1 preferred a representation before the respondents for appointment of her son (the applicant no 2) on compassionate grounds. But instead of granting the same to the applicant no 2, respondents issued letter dated 01.04.2014 and 26.08.2015 through which the applicant no 1 was directed to obtain a decree to establish her claim of being the wife of the deceased employee. Subsequently, the applicant no 1 filed Original Suit No 645 of 2014 before the Civil Judge (Junior Div.), Mau which was decided on 22.10.2021 validating the applicant no 1 to be the wife of the deceased employee. It is further argued that the applicant no 1 submitted the aforesaid decree before the respondents to which the respondents re-issued the family pension in her favour. Again, the applicant no 1 preferred representation dated 12.09.2022 for consideration of appointment of the applicant no 2 on compassionate grounds but without considering the facts and examining the issue, the respondents vide order dated 24.08.2022 and 28.09.2022 arbitrarily rejected the applicant’s prayer. It is argued that time and again, several courts across the country have held that the children of the second wife of the deceased employee are also entitled for compassionate appointment. It is further argued that in the year 2021, the Government of India issued RBE No 2018/