April 24, 2019
Case name: Prakash Kumar Rai Minor vs The State of Bihar And Ors.
The Three-Judge Bench of the High Court of Patna was confronted with the issue whether the condition of prior approval of employer before second marriage becomes sine qua non for grant of compassionate appointment to the children born of second marriage to the deceased employee?
The impugned circular in the case refers to circular issued by the Personnel and Administrative Reforms Department, Government of Bihar by which a decision had been taken that if a government servant marries while earlier marriage is subsisting without the permission of the government, then such spouse and the ward of such spouse would be disentitled for appointment on compassionate ground.
The Three-Judge Bench of the High Court made reference to plethora of judgments in the case, particularly Supreme Court’s verdict in the case of Union of India v. V.R. Tripathi, wherein the Apex Court 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.
While passing its verdict in the case, the High Court quoted Supreme Court in VR Tripathi case, wherein it was remarked that “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.”
It was also noted by the Court that 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.
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.
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. It has acknowledged the right to compassionate appointment to the child of second marriage under Section 16(1) and 16(3) of the Hindu Marriage Act.
Hence in light of Supreme Court’s verdict in V.R. Tripathi’s case, the High Court noted that the impugned Circular which inter alia bars compassionate appointment to the children born from second marriage of the deceased employee cannot be held to be legal and justified.
The entire case can be accessed here.