Can't Deny Compassionate Employment To Child From Second Marriage Under Hindu Marriage Act: Bombay HC [Read Judgment]

Granting relief to a deceased railway employee's son, the Bombay High Court has held that compassionate employment cannot be denied to him just because he was born out of the employee's second marriage.

A division bench of Justice AS Oka and Justice SK Shinde followed the decision of the apex court in Union of India and Anr vs. VR Tripathi and set aside the order passed by the Railways rejecting the Yuvraj Khadake's petition seeking compassionate employment.

In an order dated December 6, 2016, the Central Railways rejected Khadake's application on the ground that the marriage between his mother and father was solemnized during the subsistence of first marriage of the petitioner's father.

Khadake's lawyer AK Saxena relied on the decision of the Supreme Court in Union of India and Anr vs. VR Tripathi and submitted 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 Hindu Marriage Act of 1955, compassionate appointment cannot be denied to the son or the daughter.

He further submitted that appointment on compassionate ground is governed by a policy and relied upon the circular of the Railway Board dated March 21, 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. Saxena submitted that when the decision of this court in the case of Union of India and Anr vs. VR Tripathi was rendered, the aforesaid circular of the Railway Board was not in existence.

The bench highlighted the apex court's findings in the said case of Union of India vs. VR Tripathi:

"The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from the second marriage of a deceased employee may face, the compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires."

The court questioned how the railway board could have issued the said circular dated March 21, 2018, which is directly contradictory to the decision and findings of the apex court. The court observed-

"The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires."

Thus, the court concluded that the petitioner was entitled to compassionate appointment and set aside the earlier order rejecting his application. The court then directed the Central Railway to consider the petitioner's application afresh and decide within two months. 

Read the Judgment Here