Children of second marriage entitled to compassionate appointments, rules Bombay High Court

Mumbai: In a significant ruling, the Bombay High Court on Thursday held that a child from a second marriage, which may be illegal, is entitled to get his father’s job on a compassionate basis. The HC slammed the Indian Railways Board for issuing a circular which denies such jobs to children from a void marriage.

A division bench of Justices Abhay Oka and Sandeep Shinde was seized with a petition filed by a Thane resident, who sought a job in the Central Railways, on a compassionate basis. The man had sought a job after his father died in harness in 2003.

The Central Railways, however, refused to give him a job on the ground that he was a child of the second marriage of his father, which was illegal. The railways to justify its decision, cited a notification issued in March 2018 by the Indian Railways Board stating that children from a second or a void marriage cannot seek the job on a compassionate basis.

“There is a serious question mark against the action of Railway Board of issuing circular in March 2018 excluding the children of the second wife of deceased employees from the compassionate appointment. This circular is completely contrary to the law laid down by the Supreme Court. It also violates Article 14 of the Constitution of India,” Justice Oka held.

Justice Oka, further said, “If the children born to the second wife of the deceased employee dying in harness are excluded from the policy of compassionate appointment, it would be offensive to and defeat the whole object of ensuring dignity of family of the deceased employee who has died in harness and it brings about the unconstitutional discrimination.

The judges also referred to a series of judgments delivered by the Supreme Court in this regard. Citing one such judgment, the bench said, “Having regard to the purpose and object of a scheme of compassionate appointment, once the law Hindu Marriage Law treats such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment.”

“To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive. Such a condition of exclusion is arbitrary and ultra vires to the Constitution of India,” the judges held. The bench further noted that the petitioner in the instant case had applied for a compassionate appointment in 2016 and at that very time, the new circular of the Railways, issued in March 2018, was not in existence.

The judges accordingly directed the Central Railways to decide afresh the application of the petitioner for a job on a compassionate basis.

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