Holding

A child born from a void second marriage, deemed legitimate under Section 16 of the Hindu Marriage Act, cannot be excluded from compassionate appointment; the Railway Board's circular to that effect is ultra vires and violative of Article 14.

Summary

The case concerned a son born from his father's second marriage, which was void under Hindu law, who applied for a compassionate appointment after his father's death while in service of Indian Railways. The Railway Board’s circular of 1992, later reiterated in 2013, barred children of such second marriages from receiving compassionate appointments unless the marriage had administrative permission. The appellant Union of India argued that compassionate appointment is not a right but an entitlement subject to scheme, and that the exclusion was permissible to discourage bigamy. The Supreme Court held that Section 16 of the Hindu Marriage Act, 1955, deems these children legitimate, and that denying them compassionate appointment violates Articles 14 and 16 of the Constitution and is ultra vires of the circular, especially after the circular had been set aside in Namita Goldar. Consequently, the Court dismissed the appeal and directed the authorities to consider the application within three months.

Issues considered

Whether the Railway Board's circular excluding children of a second marriage from compassionate appointment violates the constitutional guarantees of equality under Articles 14 and 16.
Whether Section 16 of the Hindu Marriage Act, 1955, which declares such children legitimate, obliges the State to treat them equally for compassionate appointment.
Whether the circular is ultra vires after being struck down in Namita Goldar v. Union of India.
Whether compassionate appointment constitutes a right or merely an entitlement subject to the existence of a scheme.

Legislation cited

Hindu Marriage Act, 1955s. 16

Subjects

compassionate appointmentlegitimacysecond marriageHindu Marriage ActArticle 14discriminationpublic serviceRailway Board circularequality

Judgment

[2018] 13 S.C.R. 281 281

UNION OF INDIA AND ANR. A
v.
V. R. TRIPATHI
(Civil Appeal No. 12015 of 2018)
DECEMBER 11, 2018 B
[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 C
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 D
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 E
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. F
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 G
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. H
281
282 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G
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

H
UNION OF INDIA AND ANR. v. V. R. TRIPATHI 283

exclude such a child from seeking the benefit of compassionate A
appointment. Such a condition of exclusion is arbitrary and ultra
vires. [Para 14][291-H; 292-A-C]
1.3 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 B
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 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 C
which is imposed must have or bear a reasonable nexus to the
object which is sought to be achieved. It was submitted 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 D
spouse of a subsequent marriage and the children. The concern
is 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 E
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 F
to their dignity and is offensive to the constitutional guarantee
against discrimination. [Para 15][292-D-G]
1.3 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
G
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
H
284 SUPREME COURT REPORTS [2018] 13 S.C.R.

A beneficiaries-legitimate children. Thus, 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.
[Para 16, 18][293-C-D; 294-G-H; 295-A]
1.4 It was submitted by the respondent that once the circular
B dated 02.01.1992 was struck down by the Division Bench of the
Calcutta High Court in *Namita Goldar case 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, it is improper on the part of the Railway Board to issue a
C fresh circular on 3 April 2013, reiterating the terms of the earlier
circular even after the decision in *Namita Goldar case which
attained finality. [Para 20][295-C-D]
2. As regards, C.A.No. 12015 of 2018, since the second
marriage was in any event permissible under Muslim Personal
D Law, there is no merit in the appeal. [Para 23][295-F-G]
Namita Goldar v. Union of India (2010) 1 Cal.LJ 464 -
approved.
Rameshwari Devi v. State of Bihar (2000) 2 SCC 431 :
[2000] 1 SCR 390 ; Director of Education (Secondary)
E v. Pushpendra Kumar (1998) 5 SCC 192 : [1998] 3
SCR 432 ; State Bank of India v. Raj Kumar (2010) 11
SCC 661 ; V Sivamurthy v. State of Andhra Pradesh
(2008) 13 SCC 730 : [2008] 11 SCR 1201 ; Eastern
Coalfields Ltd. v. Dilip Singh (2013) 3 Cal.LT 379 ;
F M Muthuraj v Deputy General of Police, Tamil Nadu
(2016) 5 CTC 50 ; Union of India v. M Karumbayee
2017 Lab. IC (NOC 237) 69 – referred to.
Case Law Reference
[2000] 1 SCR 390 referred to Para 5 (iii)
G [1998] 3 SCR 432 referred to Para 10
(2010) 11 SCC 661 referred to Para 10
[2008] 11 SCR 1201 referred to Para 10
(2013) 3 Cal.LT 379 referred to Para 17
H
UNION OF INDIA AND ANR. v. V. R. TRIPATHI 285

(2016) 5 CTC 50 referred to Para 18 A
2017 Lab. IC (NOC 237) 69 referred to. Para 18
(2010) 1 Cal.LJ 464 approved Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12015
of 2018.
B
From the Judgment and Order dated 01.04.2016 of the High Court
of Judicature at Bombay in Writ Petition No. 910 of 2015.
With
Civil Appeal No. 12016 of 2018.
Aman Lekhi, ASG, Harish Pandey, Mrs. Anil Katiyar, Mukesh C
Kumar Maroria, Advs. for the Appellants.
Arjun Singh Bhati, Apurv Parashari, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
D
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.
3. The father of the respondent, Ramlakhan Tripathi was employed E
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 F
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 G
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: H
286 SUPREME COURT REPORTS [2018] 13 S.C.R.

A “Government of India
Ministry of Railway
(Railway Board)
R.B.E. No.1 of 1992
Supplementary Circular
No.5 to Master CIRCULAR
B
The General Manager(P)
C. Rly. and others
Sub: Appointment on Compassionate grounds cases of second
widow and her wards.
It is clarified that in the case of railway employees dying
C
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
D 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.
E 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/-
F (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
G
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
H 1
(2010) 1 Cal.LJ 464
UNION OF INDIA AND ANR. v. V. R. TRIPATHI 287
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iii) In the decision of this Court in Rameshwari Devi v State of A
Bihar2 the 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 B
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: C
(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; D
(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 E
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
F
right to 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 G
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:
2
(2000) 2 SCC 431 H
288 SUPREME COURT REPORTS [2018] 13 S.C.R.

A (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
B 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
C 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.
D 9. The rival submissions fall for our consideration.
10. Certain basic principles in regard to the grant of compassionate
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:
E
“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
F 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
G 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
3
(1998) 5 SCC 192
H 4
(2010) 11 SCC 661
UNION OF INDIA AND ANR. v. V. R. TRIPATHI 289
[DR. DHANANJAYA Y CHANDRACHUD, J.]

should be on the basis of merit, by an open invitation providing A
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
B
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 C
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)
D
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
E
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… F
(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…” G
(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.
5
(2008) 13 SCC 730 H
290 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 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
B
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
C 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
D
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
E 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
F 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
G
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.
H
UNION OF INDIA AND ANR. v. V. R. TRIPATHI 291
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(2) Where a decree of nullity is granted in respect of a voidable A
marriage under section 12, any child begotten or 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.
B
(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 C
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 D
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
E
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 F
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 right in the property only of the parents and none other than the
parents.
G
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 H
292 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 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
B
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
C 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
D deceased employee is alone 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 Additional Solicitor General has urged
E 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
F 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
G 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
H of the grant of family pension to the minor children born from the second
UNION OF INDIA AND ANR. v. V. R. TRIPATHI 293
[DR. DHANANJAYA Y CHANDRACHUD, J.]

marriage of a deceased employee. That is correct. This Court, in that A
context, observed 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
B
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 C
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
D
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 E
High Court in its decision in Eastern Coalfields Ltd. v Dilip Singh6
took a contrary view, 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 F
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
G
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.
6
H
(2013) 3 Cal.LT 379
294 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 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.
B 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.

C 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.”
D 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
E 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)
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
F 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
G
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
H 7
(2016) 5 CTC 50
UNION OF INDIA AND ANR. v. V. R. TRIPATHI 295
[DR. DHANANJAYA Y CHANDRACHUD, J.]

under the terms of the circular of the Railway Board is ultra vires. A 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 B
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.
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
C
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 D
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. E
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 F
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 with law. The process of consideration of the application
G
shall be completed within a period of three months from today.
24. The appeal is accordingly disposed of. No costs.

Nidhi Jain Appeals disposed of.

8
2017 Lab. IC (NOC 237) 69 H
9
SLP(C) arising out of Diary No.27352 of 2017