Can't discriminate against son of second wife in compassionate appointment: Supreme Court

New Delhi: The Supreme Court on Thursday said the compassionate appointment policy cannot discriminate against a person only on the ground of descent, as it would violate fundamental right and also go against dignity of his family.

A bench ofJustices U.U. Lalit, S. Ravindra Bhat, and P.S. Narasimha said: "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."

Justice Narasimha, who authored the judgment on behalf of the bench, said: "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."

He added that exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee.

The top court judgment came on an appeal where compassionate appointment plea of a deceased employee's second wife's son, was declined citing the condition imposed by the Railway Board circular. According to this circular, compassionate appointment cannot be granted to children born from the second wife of a deceased employee. The decision was upheld by the Central Administrative Tribunal, Patna and later by the Patna High Court.

Justice Narasimha said: "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 on any of the grounds mentioned in Article 16(2), including that of descent."

The bench noted that the circular 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," it said.

Setting the high court judgment passed in January 2018, the bench said: "We have held that appellant No.1, Manish Kumar, cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife, there shall be a direction to consider his case as per the extant policy."

The bench directed the authorities to scrutinise whether the application for compassionate appointment fulfils all other requirements in accordance with the law, and the process of consideration of the application shall be completed within a period of three months from Thursday.