21 November 2022


Supreme Court

Mukesh Kumar and Ors. vs. The Union of India (UOI) and Ors.




Child of second wife of an employee could not be denied compassionate appointment

The short issue arising for consideration, in this case, is whether 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 is legally sustainable.

The issue is covered by the decision of this Court in Union of India v. V.R. Tripathi wherein, it held that a child of a second wife of an employee could not be denied compassionate appointment.

The scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution of India, 1950. 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.

Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.

Appellant No.1, cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife, there shall be a direction to consider his case as per the extant policy. The Authorities shall be entitled to scrutinize whether the application for compassionate appointment fulfils all other requirements in accordance with the law. Appeal allowed.

Tags : Appointment Entitlement Direction

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