COMPASSIONATE APPOINTMENT TO ILLEGITIMATE CHILD

[Mr. M. GOVINDARAJAN]

Compassionate appointment 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 decease nor is it a heritable right.

In ‘State Bank of India and Others V. Jaspal Kaur’ – 2007 (2) TMI 581 - SUPREME COURT OF INDIAthe Supreme Court held that it is clear that the public post is not heritable, therefore the right to compassionate appointment is not heritable property.

In ‘State of Chhattisgarh and others V. Dhirjo Kumar Sengar’ – 2009 (5) TMI 857 - SUPREME COURT it was held that the appointment on compassionate ground is an exception to the constitutional scheme of equality of adumbrated under Article 14 and 16 of the Constitution of India.

In ‘State Bank of India and others V. Raj Kumr’ – 2010 (2) TMI 1042 - SUPREME COURT the Supreme Court held that it is now well settled that appointment of 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 should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process.   The dependents of employees, who die in harness, do not have any special claim or right to employment, except by way of concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the 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.

In ‘Eastern Coalfields Limited V. Dilip Singh and others’ – 2013 (9) TMI 73 - CALCUTTA HIGH COURT one Meethu Singh was an employee of Eastern Coalfield Limited. He had married on Debanti Devi during the subsistence of his first marriage with Nurmani Devi. A son was born to him to the second wife. The fact of the second marriage was also entered in his service record.   The said Meethu Singh expired on 6.10.2000 Dilip Singh, the son of the deceased employee made an application for compassionate appointment.

Dilip Singh appeared before the screening committee and after his initial medical examination his application was forwarded to Deputy CME who rejected the application on the ground that the petitioner was born out of the second marriage of the deceased employee. The petitioner challenged the said order before the High Court.   The Single Judge set aside the order of the authority holding that the word ‘son’ in the category of ‘dependents’ would include an illegitimate son born out of the second marriage of a deceased employee. Against this order the company filed the present appeal.

The appellant company submitted the following contentions before the High Court:

• The public post is not inheritable property of the deceased employee and therefore terms of the compassionate appointment scheme as engrafted in National Coal Wage Agreement (NCWA) could not have been expanded by resorting to the provisions of Section 16 of Hindu Marriage Act, 1955;
• Compassionate appointment was an exception to the general rule of recruitment through open competition and the same is to be strictly construed.

The respondent submitted the following before the Court:

• The expression ‘son’ in clause 9.3.3 of the NCWA is to be interpreted in the light of the provisions of Section 16 of the Hindu Marriage Act, 1955 and Section 20 of the Hindu Adoption and Maintenance Act and the same would include the illegitimate son born out of a second marriage;
• A beneficial provision must be liberally constructed.

The Court considered the issue that whether the expression ‘son’ as contained the category of dependents in Clause 9.3.3. of Chapter X of NCWA would include illegitimate son born out of second marriage of a deceased employee.

Clause 9.3.3 of NCWA provides that the dependent for this purpose means the wife/husband as the case may be, unmarried daughter and legally adopted son.   If no such direct dependent is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependent on the earnings of the deceased may be considered to be dependent of the deceased.

Section 16 of Hindu Marriage Act, 1955 reads as follows:

Section 16(1) – Notwithstanding that a marriage is null and void under Section 11, any child or such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage laws, Amendment Act, 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.

Section 16(2) - Where a decree of nullity is granted in respect of a voidable 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.

Section 16(c) - 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 acquiring any such rights by reason of his not being the legitimate child of his parents.

The High Court held that it is clear that Section 16 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. Section 16 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 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.

The petitioner relied on the decision in ‘Rameshwari Devi V. State of Bihar’ – 2000 (1) TMI 932 - SUPREME COURT OF INDIA in which the Supreme Court held that the illegitimate children were entitled to share in the family pension and gratuity of the deceased employee until they attained majority. The High Court accepted the right to pension is the property of the deceased employee.   But it cannot be equated with a claim of compassionate appointment under the relevant of scheme. The former is the property of the deceased employee and the latter is a privilege extended by the employer to the dependents of the deceased to ride them over financial stringency.

The High Court further held that it is not open to the Court to rewrite the terms of the scheme for compassionate appointment. On the contrary compassionate appointment being extended to the general rule of recruitment deserves a strict consideration.