REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.12015 OF 2018 (Arising out of SLP(C) No.32004/2016)  

UNION OF INDIA AND ANR.         Appellant(s)

VERSUS

V.R. TRIPATHI                                   Respondent(s)

WITH  CIVIL APPEAL No.12016 OF 2018

(Arising out of SLP(C) No.34830/2016)

J U D G M E N T

Dr Dhananjaya Y Chandrachud  

CIVIL APPEAL No.12015 OF 2018

1. Leave granted.

2. This appeal arises from a judgment of a Division Bench of the Bombay

High Court dated 1 April 2016.  

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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.  

4. In support of the writ petition, the appellants relied upon a circular of

the  Railway  Board  dated  2  January  1992.  The said  circular  is  extracted

below:

“Government of India

Ministry of Railway

(Railway Board)

R.B.E. No.1 of 1992

Supplementary Circular

No.5 to Master CIRCULAR

The General Manager(P)

C. Rly. and others

Sub: Appointment on Compassionate grounds cases of  second widow and her wards.

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It  is  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.

2. The fact that the second marriage is not permissible is invariably clarified in the terms and conditions advised to the offer of initial appointment.

3. 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.

4. Kindly acknowledge receipt.

Sd/-

(P.L.N. Sarma)

Deputy Director, Estt. (N)

Railway Board”

5. The High Court held that:

(i) Section 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

Section 11;

(ii) The 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 India1; and

(iii) In the decision of this Court in Rameshwari Devi v State of Bihar2  the

1(2010) 1 Cal.LJ 464

2(2000) 2 SCC 431

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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.

6. 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.

7. Assailing the judgment  of  the High Court,  Mr.  Aman Lekhi,  learned

Additional Solicitor General submitted that:

(i) Compassionate appointment is not an alternate source of employment or

recruitment;

(ii) Compassionate  appointment  is  not  a  matter  of  a  heritable  right  and

depends on the extant rules or schemes under which such benefits or

facilities are envisaged;

(iii)  Section 16(3) of the Hindu Marriage Act, 1955 envisages that a child

born from a marriage which is void under Section 11 has a claim only in

respect of the property of the parents and no further;

(iv)The decision of this Court in Rameshwari Devi (supra) is distinguishable

since pension, it  is well  settled,  is a matter of  right  as a result  of  the

previous service of an employee and therefore represents an entitlement

in the nature of property; and

(v) On the other hand, the heirs of a deceased employee have no right to

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compassionate appointment. Hence, it is open to the Union Government

or  its  agencies  and  departments,  while  designing  a  policy  of

compassionate appointment  to stipulate that such a facility  will  not  be

available either to the spouse of a second marriage or, for that matter, to

the children who are born from that marriage. The State can do so as a

legitimate instrument of its policy to discourage bigamy.

8. On the other hand, Mr. Arjun Singh Bhati and Mr. Apurv Parashar, the

learned counsel appearing on behalf of the respondent, submitted that:

(i) Section 16 of the Hindu Marriage Act clearly enunciates that children who

are born from a marriage which is null and void are legitimate;

(ii) While the Union Government may well assert that a second spouse is not

entitled to compassionate appointment, such a facility cannot be denied

to the children from a second marriage, once their legitimacy operates as

a matter of law; and

(iii)The decision in  Namita Goldar (supra) struck down the circular of the

Railway Board dated 2 January 1992. The decision was not challenged

and has in fact been implemented. Hence, the subsequent circular which

was issued by the Railway Board on 3 April 2013, reiterating the earlier

circular, is contrary to the decision of the Calcutta High Court in Namita

Goldar (supra), which was rendered on 1 February 2010.

9. The rival submissions fall for our consideration.  

10. Certain  basic  principles  in  regard  to  the  grant  of  compassionate

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appointment  are  settled  by  the  decisions  of  this  Court.  In  Director  of

Education (Secondary) v Pushpendra Kumar,3 this Court while discussing

the object of compassionate appointment observed thus:  

“8. The  object  underlying  a  provision  for  grant  of compassionate  employment  is  to  enable  the  family  of  the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury  and  without  any  means  of  livelihood.  Out  of  pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment…”  

In State Bank of India v Raj Kumar,4 this Court while discussing the claim

over compassionate appointment held as follows:  

“8. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an  exception  to  the  general  rule  that  recruitment  to  public services should be on the basis of merit, by an open invitation providing  equal  opportunity  to  all  eligible  persons  to participate  in  the  selection  process.  The  dependants  of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme  is  abolished,  any  pending  application  seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.”        (Emphasis supplied)  

3 (1998) 5 SCC 192 4 (2010) 11 SCC 661

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In  V Sivamurthy v  State of Andhra Pradesh,5 this Court summarised the

principles relating to compassionate appointment as follows:  

“18. (a) 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…  (c) Compassionate appointment can neither be claimed, nor be  granted,  unless  the  rules  governing  the  service  permit such  appointments.  Such  appointments  shall  be  strictly  in accordance with  the  scheme governing such appointments and against existing vacancies…”

(Emphasis supplied)  

11. The policy of compassionate appointment is premised on the death of

an employee while in harness. The death of an employee is liable to render

the  family  in  a  position  of  financial  hardship  and  need.  Compassionate

appointment  is  intended  to  alleviate  the  hardship  that  the  family  of  a

deceased  employee  may  face  upon  premature  death  while  in  service.

Compassionate  appointment,  in  other  words,  is  not  founded  merely  on

parentage  or  descent,  for  public  employment  must  be  consistent  with

equality  of  opportunity  which  Article  16  of  the  Constitution  guarantees.

Hence, before a claim for compassionate appointment is asserted by the

family of  a deceased employee or is granted by the State,  the employer

must have rules or a scheme which envisage such appointment. It is in that

sense that it is a trite principle of law that there is no right to compassionate

appointment. Even where there is a scheme of compassionate appointment,

5 (2008) 13 SCC 730

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an application for engagement can only be considered in accordance with

and  subject  to  fulfilling  the  conditions  of  the  rules  or  the  scheme.  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.  

12. The real issue in the present case, however, is whether the condition

which has been imposed by the circular of the Railway Board under which

compassionate appointment cannot be granted to the children born from a

second marriage of a deceased employee (except where the marriage was

permitted  by  the  administration  taking  into  account  personal  law,  etc)

accords with  basic  notions of  fairness  and equal  treatment,  so as to  be

consistent with Article 14 of the Constitution. While answering this issue, it

would be necessary to advert to the provisions of Section 16 of the Hindu

Marriage Act, 1955 which provide thus:

“16. Legitimacy of children of void and voidable marriages.-(1) Notwithstanding that marriage is null and void under section 11,  any  child  of  such  marriage  who  would  have  been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable  marriage under  section  12,  any  child  begotten  or

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conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null  and void or  which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”

13. In sub-section (1) of Section 16, the legislature has stipulated that a

child  born  from  a  marriage  which  is  null  and  void  under  Section  11  is

legitimate, regardless of whether the birth has taken place before or after the

commencement of Amending Act 68 of 1976. Legitimacy of a child born from

a marriage which is null and void, is a matter of public policy so as to protect

a  child  born  from  such  a  marriage  from  suffering  the  consequences  of

illegitimacy. Hence, though the marriage may be null and void, a child who is

born from the marriage is nonetheless treated as legitimate by sub-section

(1) of Section 16. One of the grounds on which a marriage is null and void

under Section 11 read with clause (i) of Section 5 is that the marriage has

been contracted when one of the parties had a spouse living at the time of

marriage. A second marriage contracted by a Hindu during the subsistence

of the first marriage is, therefore, null and void. However, the legislature has

stepped in by enacting Section 16(1) to protect the legitimacy of a child born

from such a marriage. Sub-section (3) of Section 16, however, stipulates that

such a child who is born from a marriage which is null and void, will have a

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right in the property only of the parents and none other than the parents.  

14. The issue essentially  is  whether it  is  open to an employer,  who is

amenable to Part III of the Constitution to deny the benefit of compassionate

appointment  which  is  available  to  other  legitimate  children.  Undoubtedly,

while  designing  a  policy  of  compassionate  appointment,  the  State  can

prescribe the terms on which it can be granted. However, it is not open to the

State, while making the scheme or rules, to lay down a condition which is

inconsistent  with  Article  14  of  the  Constitution.  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.  

15. 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

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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  be  achieved.  The

learned Additional Solicitor General has urged that it is open to the State, as

part  of  its  policy  of  discouraging  bigamy  to  restrict  the  benefit  of

compassionate  appointment,  only  to  the  spouse and children  of  the  first

marriage and to deny it to the spouse of a subsequent marriage and the

children. We are 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

against discrimination.  

16. The learned Additional Solicitor General submitted that the decision of

this Court in Rameshwari Devi (supra) arose in the context of the grant of

family pension to the minor children born from the second marriage of  a

deceased employee. That is correct. This Court, in that context, observed

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that Section 16 of the Hindu Marriage Act, 1955 renders the children of a

void  marriage  to  be  legitimate  while  upholding  the  entitlement  to  family

pension. The learned Additional Solicitor General submitted that pension is a

matter of right which accrues by virtue of the long years of service which is

rendered by the employee, entitling the employee and after his death, their

family to pension in accordance with the rules. Even if 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.

17. 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 Singh6 took a contrary view,

6 (2013) 3 Cal.LT 379

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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 held thus:

“Section  16(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 none else.

It  is,  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 other thing.

It  is  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 heritable property.

In fact 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 heritable right.   

In  State  of  Chhattisgarh  v.  Dhirjo  Kumar Sengar reported in (2009) 13 SCC 600 the Apex Court held as follows:

“Appointment on compassionate ground is an exception  to  the  constitutional  scheme  of  equality  as adumbrated under Articles 14 and 16 of the Constitution of India.”

For  the  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.”                            (Emphasis supplied)

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18. 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  Nadu7 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.8 A Special  leave petition  filed  against  the judgment  of  the

Division Bench was dismissed by this Court on 18 September 20179.   

19. 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 individual case.  

7(2016) 5 CTC 50 82017 Lab. IC (NOC 237) 69 9SLP(C) arising out of Diary No.27352 of 2017

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20. Finally, it would be necessary to dwell on the submission which was

urged on behalf of the respondent that once the circular dated 2 January

1992 was struck down by the Division Bench of the Calcutta High Court in

Namita  Goldar (supra) and  which  was  accepted  and  has  been

implemented,  it  was not  thereafter  open to the railway authorities to  rely

upon the same circular which has all India force and effect. There is 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.  

21. For the above reasons, we do not find any merit in the appeal. The

authorities shall take a decision in terms of this judgment on the application

for  compassionate  appointment  in  three  months  from today.  The  appeal

stands dismissed. No costs.

CIVIL APPEAL No.12016 OF 2018

(Arising out of SLP(C) No.34830/2016)

22. Leave granted.

23. In  view of  the judgment  delivered today in companion Civil  Appeal

No.12015  of  2018  and  since  the  second  marriage  was  in  any  event

permissible under Muslim Personal Law, there is no merit in the appeal. The

authorities  shall  be  entitled  to  scrutinize  whether  the  application  for

compassionate  appointment  fulfills  all  other  requirements,  in  accordance

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with law. The process of consideration of the application shall be completed

within a period of three months from today.

24. The appeal is accordingly disposed of. No costs.

……………..…………………...................J.    (Dr DHANANJAYA Y CHANDRACHUD)

….....……………………..........................J.     (M.R. SHAH)

New Delhi December 11, 2018

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