Cannot Discriminate Against Children Born Out Of Void Marriages While Providing Compassionate Employment: Calcutta High Court

The Calcutta High Court has held that in cases for providing compassionate employment, it is 'reprehensible' to consider the source of inception of a child's birth and discriminate against those who may have been born from a void marriage.

Justice Ananya Bandopadhyay held: "The objective to grant compassionate appointment to redress financial constraints occasioned in a family in the event of the death of the bread earner ensures a means of sufficiency to assuage abrupt crisis and indigence, which cannot be refused ambiguously and unjustifiably on the basis of a circular which is unequivocally unconstitutional to judge a child's entitlement to an appointment on compassionate ground on the basis of its descent."

It is reprehensible and repugnant to distinguish the eligibility or suitability to the aforesaid appointment considering the valid or void source of inception of a child's birth, she added.

The Court was hearing a plea challenging the refusal of compassionate employment to the younger son of a deceased railways employee, born from his second wife. It was stated that the other son, and the first wife did not have any objection to the compassionate appointment of the second son.

However, the appointment was rejected based on a circular dated 02.01.1992.

Justice Bandopadhyay however found that the circular on the basis of which the compassionate employment was rejected, had been struck down by a division bench of the Supreme court in Namita Goldar v Union of India [2010 SCC OnLine (Cal) 266].

Thus it was held that the younger son/petitioner no. 2 would be entitled to compassionate appointment in place of his father regardless of the legitimacy of his parents' marriage.

A child by virtue of its birth cannot be enamoured by legitimacy and/or stigmatized by illegitimacy contrary to the principle enshrined in Article 14 of the Constitution to its prejudice devoid of any iota of fault on its part of having taken birth through a void marriage, the Court concluded.

Accordingly, the plea was allowed.

Case: Smt. Lachhmina Devi & Anr. -Vs- Union of India & Ors.

Case No: WPA 24082 of 2013

Citation: 2024 LiveLaw (Cal) 277

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