Holding

An exclusionary provision in the Railway Board circular that denies compassionate appointment to children of a second wife of a deceased employee is unconstitutional as it discriminates on the ground of descent, violating Articles 14 and 16(2).

Summary

Jagdish Harijan, an Indian Railways employee, died leaving a son, Mukesh Kumar, born of his second wife. The Railway Board circular barred children of a second wife from receiving compassionate appointments, leading to the denial of Mukesh's application. The appellant challenged this denial, arguing it violated constitutional guarantees of equality. The Supreme Court held that the circular's exclusionary provision discriminates on the ground of descent, contravening Articles 14 and 16(2) of the Constitution, and lacks a reasonable nexus with the purpose of compassionate appointments. Consequently, the Court set aside the High Court order, directed that Mukesh's application be considered under the existing policy, and allowed the appeal.

Issues considered

Whether the Railway Board circular's exclusion of children of a second wife from compassionate appointments violates Article 14 of the Constitution.
Whether such exclusion amounts to discrimination on the ground of descent prohibited under Article 16(2).
Whether a policy for compassionate appointment can lawfully differentiate based on legitimacy of birth.
Whether the circular is ultra vires for lacking a reasonable nexus with the objective of compassionate appointments.

Legislation cited

Constitution of Indias. Art.14, s. Art.16(2)
Hindu Marriage Act, 1955s. 16

Subjects

compassionate appointmentdiscriminationArticle 14Article 16(2)descentlegitimacyRailway Board circularequalitypublic service recruitment

Judgment

644 [2022]REPORTS
SUPREME COURT 1 S.C.R. 644 [2022] 1 S.C.R.

A MUKESH KUMAR & ANR
v.
THE UNION OF INDIA & ORS.
(Civil Appeal No. 1620 of 2022)
B FEBRUARY 24, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Constitution of India: Art.16(2) – Condition imposed by the
Railway Board circular that compassionate appointment cannot be
C
granted to children born from the second wife of a deceased
employee – Held: Is not sustainable – Denial to grant compassionate
appointment only on the ground of descent under Art.16(2) amounts
to discrimination.
Allowing the appeal, the Court
D
HELD: While compassionate appointment is an exception
to the constitutional guarantee under Article 16, a policy for
compassionate appointment must be consistent with the mandate
of Articles 14 and 16. That is to say, a policy for compassionate
appointment, which has the force of law, must not discriminate
E on any of the grounds mentioned in Article 16(2), including that
of descent. In this regard, ‘descent’ must be understood to
encompass the familial origins of a person. Familial origins include
the validity of the marriage of the parents of a claimant of
compassionate appointment and the claimant’s legitimacy as their
F child. 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 descendant. Apart from the fact that strict scrutiny
would reveal that the classification is suspect, as demonstrated
by this Court in V.R. Tripathi, it will instantly fall foul of the
G constitutional prohibition of discrimination on the ground of
descent. Such a policy is violative of Article 16(2). As appellant
No.1, cannot be denied consideration under the scheme of
compassionate appointments only because he is the son of the

H
644
MUKESH KUMAR & ANR v. THE UNION OF INDIA & ORS. 645

second wife, there shall be a direction to consider his case as per A
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. [Paras 9, 11]
[651-A-D; 652-C-D]
Union of India v. V.R. Tripathi (2019) 14 SCC 646 : B
[2018] 13 SCR 281; K. Santhosha v. Karnataka Power
Transmission Corp Ltd. 2022(1) Kant LJ 154 (Decided
on 24.06.2021 by The High Court of Karnataka);
Yuvraj Dajee Khadake v. Union of India: 2019 SCC
OnLine Bom 299 (Decided on 21.02.2019 by The
High Court of Bombay); Union of India v Rohit Chand C
2020 SCC OnLine Del 157 (Decided on 24.01.2020
by The High Court of Delhi); V. Sivamurthy v. State of
A.P. and Ors., (2008) 13 SCC 730 : [2008] 11 SCR
1201; Director General of Posts v. K. Chandrashekar
Rao, (2013) 3 SCC 310 : [2012] 12 SCR 795; State of D
Haryana v. Ankur Gupta (2003) 7 SCC 704 : [2003] 3
Suppl. SCR 333; Yogender Pal Singh v. Union of India
(1987) 1 SCC 631: [1987] 2 SCR 49; Gazula
Dasaratha Rama Rao v. State of Andhra Pradesh and
Ors. [1961] 2 SCR 931– relied on.
E
Namita Goldar and Anr. v. Union of India and Ors.
(2010) 1 Cal. LJ 464 – approved.4 Union of India v.
Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C)
No.9008/2014 dt 19.04.2014 – approved.
Case Law Reference F
[2018] 13 SCR 281 relied on Para 2
[2008] 11 SCR 1201 relied on Para 8
[2012] 12 SCR 795 relied on Para 8
[2003] 3 Suppl. SCR 333 relied on Para 8 G
[1987] 2 SCR 49 relied on Para 8
[1961] 2 SCR 931 relied on Para 9

H
646 SUPREME COURT REPORTS [2022] 1 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1620
of 2022.
From the Judgment and Order dated 18.01.2018 of the High Court
of Judicature at Patna in Civil Writ Jurisdiction Case No.18153 of 2017.
Manish Kumar Saran, Satya Prakash Sharan, Advs. for the
B Appellants.
Ms. Meera Patel, B. K. Satija, Ms. Seema Bengani, Ms. Vaishali
Verma, Raj Bahadur Yadav, Amrish Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
C PAMIDIGHANTAM SRI NARASIMHA, J.
1. Leave granted.
2. 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
D
a deceased employee is legally sustainable. Having considered the matter,
we have agreed with the counsel for the appellant that the issue is covered
by the judgment of this Court in Union of India v. V.R. Tripathi.1 We
have allowed the appeal on this ground. We have also held that such a
denial is discriminatory, being only on the ground of descent under
E Article 16(2) of the Constitution of India. We shall first refer to the facts
of the case before applying the law for disposal of this appeal.
Facts:
3. The facts, in brief, are that Jagdish Harijan was an employee
of the Indian Railways appointed on 16.11.1977. In his lifetime, Shri
F Jagdish Harijan had two wives, appellant No.2, Gayatri Devi, was his
first wife and Konika Devi, since deceased, was his second wife. The
appellant No.1 Mukesh Kumar is his son through his second wife. Shri
Jagdish Harijan died in service on 24.02.2014. Shortly after that, the
appellant No.2 made a representation dated 17.05.2014 seeking the
G appointment of her step-son/appellant No.1 under the scheme for
appointments on compassionate grounds. The Respondent-Union rejected
the representation on 24.06.2014 because appellant No.1, being the
second wife’s son, is not entitled to such an appointment. The
departmental appeal came to be dismissed on 30.12.2015. The appellants
1
H Union of India v. V.R. Tripathi, (2019) 14 SCC 646.
MUKESH KUMAR & ANR v. THE UNION OF INDIA & ORS. 647
[PAMIDIGHANTAM SRI NARASIMHA, J.]

filed an original application before the Central Administrative Tribunal, A
Patna, which was dismissed on 19.07.2017. A writ petition was filed
before the High Court of Patna questioning the correctness of the decision
of the Tribunal by relying on two decisions of the Madras High Court,
which followed the Calcutta High Court decision in the case of Namita
Goldar and Anr. v. Union of India and Ors.(2010) 1 Cal. LJ 464under
B
which the very same circular of the railways dated 02.01.1992 was
quashed. The Division Bench of the High Court, however, by the
impugned order, dismissed the writ petition.
Arguments of Counsel:
4. The learned Counsel for the Appellants, Shri Manish Kumar C
Saran, submitted that the issue is covered by the decision of this Court in
Union of India v. V.R. Tripathi (supra) wherein, in the context of this
very circular and policy of the railways, it held that a child of a second
wife of an employee could not be denied compassionate appointment on
that ground alone. He also relied on the judgment of the High Court of
Calcutta in Namita Goldar (supra), which has been approved by this D
Court in V.R. Tripathi.
5. The learned Counsel for the Respondents, Smt. Meera Patel,
representing the Union submitted based on the statement in the counter
affidavit. The counter refers to Circular No. E(NG) II/2018/RC-1/5 dated
21.03.2018 issued in supersession of Circular dated 02.01.1992, which E
provides that if a legally wedded surviving widow does not want herself
to be considered, she cannot nominate the illegitimate sons/daughters of
her husband for compassionate appointment. She further submitted that
the judgment of this Court relied on by the appellants does not direct
appointment but merely provides for consideration of the application. F
Therefore, there cannot be a direction for appointment as prayed by the
appellant.
Analysis:
6. It is true that the matter is no more res integra. This Court in
V.R. Tripathiconsidered the very same policy and circular that arise for G
the consideration in the present case. The judgment covers the issue, as
is evident from the following passages:
“14. 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 H
648 SUPREME COURT REPORTS [2022] 1 S.C.R.

A 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….
B
16. 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
C 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
D 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
E 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.
F 17. 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
G 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 be achieved. The learned
H
MUKESH KUMAR & ANR v. THE UNION OF INDIA & ORS. 649
[PAMIDIGHANTAM SRI NARASIMHA, J.]

Additional Solicitor General has urged that it is open to the A
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
B
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 C
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
D
discrimination.
18. …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 E
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.”
7. This Court held that the scheme and the rules of compassionate F
appointment cannot violate the mandate of Article 14 of the Constitution.
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 G
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
H
650 SUPREME COURT REPORTS [2022] 1 S.C.R.

A of ensuring the dignity of the family of the deceased employee. This
judgment has now been followed by a number of High Courts as well.2
8. Apart from the discrimination ensuing from treating equals
unequally, which is writ large as demonstrated in the judgment of this
Court referred to above, there is also discrimination on the ground of
B descent, which is expressly prohibited under Article 16(2). In V.
Sivamurthy v. State of A.P.3, this Court observed that appointments
made only on the basis of descent is impermissible. However,
compassionate appointments are a well-recognized exception to the
general rule if they are carved out in the interest of justice to meet public
policy considerations.4 It lends justification only that far and no further.
C
2
See, K. Santhosha v. Karnataka Power Transmission Corp Ltd. 2022(1) Kant LJ 154
(Decided on 24.06.2021 by The High Court of Karnataka); Yuvraj DajeeKhadake v.
Union of India: 2019 SCC OnLine Bom 299 (Decided on 21.02.2019 by The High
Court of Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decided
on 24.01.2020 by The High Court of Delhi)
3
V. Sivamurthy v. State of A.P. and Ors., (2008) 13 SCC 730:
D “18. The principles relating to compassionate appointments may be summarised
thus;
(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,
E 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.
(b) Two well-recognised contingencies which are carved out as exceptions to the
general rule are:
(i) appointment on compassionate grounds to meet the sudden crisis occurring
in a family on account of the death of the breadwinner while in service.
(ii) appointment on compassionate ground to meet the crisis in a family on
F account of medical invalidation of the breadwinner.
Another contingency, though less recognised, is where landholders lose their
entire land for a public project, the scheme provides for compassionate
appointment to members of the families of project-affected persons. (Particularly
where the law under which the acquisition is made does not provide for market
value and solatium, as compensation).
(c) Compassionate appointment can neither be claimed, nor be granted, unless the
G rules governing the service permit such appointments. Such appointments shall be
strictly in accordance with the scheme governing such appointments and against
existing vacancies.
(d) Compassionate appointments are permissible only in the case of a dependant
member of the family of the employee concerned, that is, spouse, son or daughter
and not other relatives. Such appointments should be only to posts in the lower
category, that is, Classes III and IV posts and the crises cannot be permitted to be
H converted into a boon by seeking employment in Class I or II posts.”
MUKESH KUMAR & ANR v. THE UNION OF INDIA & ORS. 651
[PAMIDIGHANTAM SRI NARASIMHA, J.]

9. While compassionate appointment is an exception to the A
constitutional guarantee under Article 16, a policy for compassionate
appointment must be consistent with the mandate of Articles 14 and 16.
That is to say, a policy for compassionate appointment, which has the
force of law, must not discriminate on any of the grounds mentioned in
Article 16(2), including that of descent. In this regard, ‘descent’ must
B
be understood to encompass the familial origins of a person. 5 Familial
origins include the validity of the marriage of the parents of a claimant of
compassionate appointment and the claimant’s legitimacy as their child.
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 descendant. C
Apart from the fact that strict scrutiny would reveal that the classification
is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly
fall foul of the constitutional prohibition of discrimination on the ground
of descent. Such a policy is violative of Article 16(2).
10.We note with approval the decision of the Delhi High Court in D
Union of India v. Pankaj Kumar Sharma,6 to which one of us (Justice
S. Ravindra Bhat) was a party, which held that descent cannot be a
ground for denying employment under the scheme of compassionate
appointments. Speaking through Sanghi J., the Court held:
“22. The Court is of opinion that - apart from being textually E
sound - understanding ‘descent’ in terms of prohibiting
discrimination against a person on the basis of legitimacy, or
on the basis of his mother’s status as a first or second wife,
fits within the principles underlying Article 16(2). Not only is
one’s descent, in this sense, entirely beyond one’s control (and
therefore, ought not to become a ground of State-sanctioned F
disadvantage), but it is also an established fact that children
of ‘second’ wives, whether counted as illegitimate or legitimate,
have often suffered severe social disadvantage. Another
4
Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310 (at para 18);
G
Further, constitutionality of compassionate appointments was upheld in State of
Haryana v. Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union of
India (1987) 1 SCC 631 (at para 17).
5
See, Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. (1961) 2 SCR
931.
6
Union of India v. Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C) No.9008/
2014 dt 19.04.2014 H
652 SUPREME COURT REPORTS [2022] 1 S.C.R.

A significant observation here is that at the entry level -
“legitimacy” is and cannot be a ground for denial of public
employment. For these reasons, this Court is of the opinion
that the Petitioner’s regulation violates Article 16(2).”
11. Given the above, we hold that the issue arising for consideration,
B in this case, is covered by the judgment of this Court in Union of India
and Ors. v. V.K. Tripathi and consequently the judgment and order
dated 18.01.2018 of the High Court of Judicature at Patna passed in
CWJC No. 18153 of 2017 is set aside. As we have held that appellant
No.1, Shri Mukesh* Kumar, cannot be denied consideration under the
scheme of compassionate appointments only because he is the son of
C 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. The process of consideration of the
application shall be completed within a period of three months from today.
D 12.The appeal is accordingly allowed. Parties shall bear their own
costs.

Devika Gujral Appeal allowed.

E

F

G

H