Denial of Compassionate Appointment on Ground that Child is Born out of Void Marriage Violates Article 14- Supreme Court

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January 14, 2019

The Supreme Court in the case while ruling on the law pertaining to grant of compassionate appointment to a child born out of void marriage held that 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.

Case name: Union of India and anr. v. V.R. Tripathi

The seminal issue that fell for consideration before the Supreme Court in the case was whether the condition 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 accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution?

In the case, the Respondent was denied compassionate appointment by the Appellant on the ground that that respondent was born from the second marriage of the Appellant employee who died in harness.

Bench’s Verdict

The Two-Judge Bench of the Supreme Court dismissed the appeal and allowed the Respondent’s plea for compassionate appointment on the following grounds:

Objective behind grant of Compassionate Appointment- The Apex Court opined that 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.

The Court further stated that compassionate appointment, 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.

While considering the issue in the present case, the Supreme Court delved into the provisions of Section 16 of the Hindu Marriage Act, 1955 which deals with the law relating to legitimacy of children born out of void or voidable marriages. The Apex Court stated that in accordance with the wordings of Section 16, 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.

In view of the aforesaid provision, thus the Supreme Court considered 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.

The Supreme Court was of the view that 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.

While stressing on the purpose of compassionate appointment, the Bench stated that compassionate appointment is granted to prevent destitution and penury in the family of a deceased employee.

In view of the aforesaid, the Court held that 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.

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