YESTERDAY in its judgment in the case of Mukesh Kumar vs. Union of India, the Supreme Court observed that denying compassionate appointment to children born from the second wife of a deceased employee is violative of Articles 14 and 16(2) of the Constitution of India.
Facts
Jagdish Harijan, deceased father of the appellant Mukesh Kumar, was employed with the Indian Railways. In his lifetime, he had married twice. The appellant was his son through his second marriage. When Jagdish Harijan died during service on February 24, 2014, his first wife made a representation seeking the appointment of her step-son/appellant under the scheme for appointment on compassionate grounds. The respondent rejected the representation on the ground that the appellant, being the second wife’s son, is not entitled to a compassionate appointment. Against the rejection of representation, a departmental appeal was preferred. However, the same was dismissed on December 30, 2015. This was upheld by the Central Administrative Tribunal, Patna and then the High Court of Patna. Hence, the present proceedings before the Supreme Court.
Arguments before the Supreme Court
It was argued on behalf of the appellants that the issue in the present controversy is covered by an earlier judgement of the Supreme Court in Union of India vs. V.R. Tripathi (2018). In the said case, analysing the same circular and policy, it was observed by the Supreme Court that a child out of a second marriage of an employee cannot be denied compassionate appointment on that ground alone.
The respondents relied on a circular dated March 21, 2018 as per which if a legally wedded surviving widow does not want herself to be considered, she would not be entitled to nominate an illegitimate son/daughter of her husband for compassionate appointment. It was further submitted that the judgment in V.R. Tripathi does not direct compassionate appointment but merely provides for consideration of the application. In light of the same, it was argued that there cannot be a direction for compassionate appointment as prayed by the appellant in the present case.
Analysis of the judgment
At the outset, the Supreme Court accepted the appellant’s argument that the present controversy is covered by the judgement in V.R. Tripathi. Additionally, it was also observed that the denial of compassionate appointment in question was discriminatory as it was only on the ground of descent under Article 16(2) of the Constitution.
Article 14 Test
Relying on V.R. Tripathi, the Supreme Court reiterated that the scheme of compassionate appointment cannot violate Article 14 of the Constitution. As Section 16 of the Hindu Marriage Act already considers a child born from a second marriage to be legitimate, Article 14 would be violated if the scheme excludes such a child from seeking the benefit of compassionate appointment.
The circular in question had, as per the court, created two categories within one class and since there no nexus to the object sought to be achieved, it violates Article 14. Once children from second marriage have been considered legitimate, a scheme cannot exclude them.
Article 16(2) Test
Apart from the scheme being violative of Article 14, the present scheme also discriminates on the ground of descent, which is impermissible under Article 16(2), reasoned the court.
Any scheme for compassionate appointment has to satisfy the requirements of Articles 14 and 16. Thus, a scheme cannot discriminate on any of the grounds mentioned in Article 16(2), including that of descent. Relying on its decision of Gazula Dasaratha Rama Rao vs. State of Andhra Pradesh (1960), the Supreme Court in the present case observed that ‘descent’ must be understood to encompass a person’s familial origins. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate, and recognizing only the right of legitimate descendants.
Therefore, in light of the above, the impugned scheme for compassionate appointment was struck down for being violative of Articles 14 and 16(2) of the Constitution.
(Raghav Bhatia is an advocate practising at the Supreme Court of India.)
