Case: Union of India (UOI) and Ors Vs. V.R. Tripathi

3. The father of the Respondent, Ramlakhan Tripathi was employed as a Technician, Grade-I in Central Railways at Mumbai. He died in harness on 28 November 2009. The deceased employee had contracted a second marriage during the subsistence of his first marriage. The Respondent is the son born from the second marriage of the employee. The second marriage, as it appears, was contracted in 1987. The Respondent applied for compassionate appointment on the death of his father. The application was rejected on 6 March 2012 by the Railway Authorities. Aggrieved by the denial of compassionate appointment, the Respondent moved an Original Application before the Central Administrative Tribunal. The Tribunal having held in favour of the Respondent and upon the dismissal of a petition seeking review, the Union of India and the Railway Authorities instituted writ proceedings before the Bombay High Court.In support of the writ petition, the Appellants relied upon a circular of the Railway Board dated 2 January 1992. The said circular is extractedry of. No. 1 of. 5 to MasterC. Rly. andAppointment on Compassionate grounds cases of second widow and heris clarified that in the case of railway employees dying in harness etc. leaving more than one widow along with children born to the 2nd wife, while settlement dues may be shared by both the widows due to Court orders or otherwise on merits of each case, appointments on compassionate grounds to the second widow and her children are not to be considered unless the administration has permitted the second marriage, in special circumstances, taking into account the persons law etc.The fact that the second marriage is not permissible is invariably clarified in the terms and conditions advised to the offer of initial appointment.This may be kept in view and the cases for compassionate appointment to the second widow or her wards need not be forwarded to Railway Board.y Director, Estt.. The High Court heldSection 16 of the Hindu Marriage Act, 1955 recognizes the legitimacy of a child born from a marriage which is null and void under the provisions of SectionThe circular of the Railway Board dated 2 January 1992 has been set aside by a Division Bench of the Calcutta High Court in Namita Goldar v. Union of India (2010) 1 Cal. LJ 464;In the decision of this Court in Rameshwari Devi v. State of Bihar (2000) 2 SCC 431     the entitlement of the family of a deceased employee to pensionary benefits has been upheld notwithstanding the fact that the deceased had, during his lifetime, contracted a second marriage.Principally on the above foundation, the High Court found no reason to differ with the view of the Central Administrative Tribunal and observed that the direction to the railway authorities was only to consider the case of the Respondent for compassionate appointment on its merits.

Court's reasoning:
The submission which has been urged on behalf of the Union of India by the learned Additional Solicitor General is premised on the basis that there is no right to compassionate appointment. There can be no doubt about the principle that there is no right as such to compassionate appointment but only an entitlement, where a scheme or Rules envisaging it exist, to be considered in accordance with the provisions.Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to beare here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee againstif we do accept that submission, the principle which has been laid down by this Court on the basis of Section 16 of the Hindu Marriage Act, 1955 must find application in the present case as well. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries - legitimate children.We may note at this stage, that a Division Bench of the Calcutta High Court in Namita Goldar (supra) quashed the circular of the Railway Board dated 2 January 1992 to the extent that it prevented the children of the second wife from being considered for appointment on compassionate grounds. Subsequently, another Division Bench of the High Court in its decision in Eastern Coalfields Ltd. v. Dilip Singh (2013) 3 Cal. LT 379 took a contrary view, without noticing the earlier decision. We may advert to the subsequent decision in Eastern Coalfields Ltd. (supra) for the reason that it proceeds on a construction of Section 16 which, in our view, is inconsistent with the language of that provision. The Division Bench held16(1) of the aforesaid Act creates a legal fiction whereby a child born out of void marriage shall be held to be legitimate. Section 16(3) of the said act restricts such legal presumption to the rights of such a child only to the property of his parents and noneis, therefore, clear that Section 16 of Hindu Marriages Act, 1955 presumes a child born out of a void marriage as legitimate only for the purpose of entitling him to claim rights in or to the property of his parents but not to any otheris settled law that public post is not a heritable property. In State Bank of India v. Jaspal Kaur reported in (2007) 9 SCC 571     the Apex Court held that it is clear that public post is not heritable, therefore, the right to compassionate appointment is not a heritablefact it is an exception to the Rule of regular appointment by open competition. Such exception to the Rule of regular appointment is therefore a privilege extended by the employer in terms of the scheme for compassionate appointment itself. It is not a property of the deceased nor is it a heritableState of Chhattisgarh v. Dhirjo Kumar Sengar reported in (2009) 13 SCC 600     the Apex Court held ason compassionate ground is an exception to the constitutional scheme of equality as adumbrated Under Articles 14 and 16 of the Constitution ofthe aforesaid reasons, we are of the opinion that the provisions of Section 16 of the Hindu Marriage Act, 1955 cannot come to the aid of the Petitioner. Legal presumption of legitimacy in such provision is restricted only to the property of the deceased and not to other things. Hence, such provision of law cannot be pressed into service to expand the privilege of compassionate appointment extended by an employee under the scheme as the same can by no stretch of imagination be held to be the property of the deceased employee.The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in Sub-section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M. Muthuraj v. Deputy General of Police, Tamil Nadu (2016) 5 CTC 50 adopting the same position. In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar in Union of India v. M. Karumbayee 2017 Lab. IC (NOC 237) 69. A Special leave petition filed against the judgment of the Division Bench was dismissed by this Court on 18 September 20171.We may, however, clarify that the issue as to whether in a particular case, the applicant meets all the stipulations of the scheme including financial need and other requirements are matters which will be decided on the facts of each individualis merit in the submission. Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April 2013, reiterating the terms of the earlier circular dated 2 January, 1992 even after the decision in Namita Goldar (supra), which attained finality.