UNION OF INDIA AND ANR. versus V. R. TRIPATHI

Citation: [2018] 13 S.C.R. 281 · Decided: 11-12-2018 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Cited by 2 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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UNION OF INDIA AND ANR.
v.
V. R. TRIPATHI
(Civil Appeal No. 12015 of 2018)
DECEMBER 11, 2018
[DR DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Service law : Appointment – Compassionate appointment –
Son born to railway employee from second marriage contracted
during the subsistence of his first marriage – Benefit of
compassionate appointment to the son on the death of his father –
Claim for – Rejected by the Railway Authorities, however, allowed
by the tribunal and the High Court – Held: 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 – Having regard to the purpose and object of a
scheme of compassionate appointment, once the law has treated
children born out of second marriage during the subsistence of the
first marriage 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 is deeply offensive to their dignity and to the
constitutional guarantee against discrimination – Thus, 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 – Hindu Marriage Act, 1955 – s. 16.
An employee working with Indian Railways, died in harness.
He had contracted a second marriage during the subsistence of
his first marriage and a son was born to him from the second
marriage. The respondent-son applied for compassionate
appointment on the death of his father. The Railway authorities
rejected the application in view of the circular of the Railway Board
whereby compassionate appointment could not 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). However, the tribunal and
the High Court held in favour of the respondent. Hence the
present appeal.
[2018] 13  S.C.R. 281
281
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SUPREME COURT REPORTS
[2018] 13  S.C.R.
Disposing of the matters, the Court
HELD: 1.1 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, an application for engagement can only be
considered in accordance with and subject to fulfilling the
conditions of the rules or the scheme. 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. [Para 11][289-G-H; 290-A-D]
1.2 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
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exclude such a child from seeking the benefit of compassionate
app

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