Compassionate Appointment Policy Cannot Discriminate Against 'Illegitimate' Children Of Deceased Employee: Supreme Court

The Supreme Court observed that a compassionate appointment policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate. 

Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee, the bench comprising Justices UU Lalit, S. Ravindra Bhat and PS Narasimha observed.

In this case, the compassionate appointment plea of deceased employee's second wife's son, was rejected citing 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. The Central Administrative Tribunal, Patna and later the Patna High Court upheld this decision.

In appeal filed by the claimant, the Apex court bench, at the outset, noted that this issue is covered by the decision of this Court in Union of India v. V.R. Tripathi ((2019) 14 SCC 646) 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.

"This Court held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. This judgment has now been followed by a number of High Courts as well.", the court observed.

The court added that, in this case there is also discrimination on the ground of descent, which is expressly prohibited under Article 16(2) of the Constitution of India. The court approved the view taken by Delhi High Court in Union of India v. Pankaj Kumar Sharma, in which it was held that descent cannot be a ground for denying employment under the scheme of compassionate appointments. While allowing the appeal, Justice Narasimha, who authored the judgment, observed:

While compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2).

Headnotes

Case: Mukesh Kumar vs Union of India | SLP(C) NO. 18571/2018 | 24 Feb 2022

Citation: 2022 LiveLaw (SC) 205

Coram: Justices UU Lalit, S. Ravindra Bhat and PS Narasimha

Counsel: Adv Manish Kumar Saran for appellant, Adv Meera Patel for respondent UoI

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