Ch. Damayanthi, vs Apsrtc
2021 Latest Caselaw 1171 AP

                                       1


          THE HON'BLE SRI JUSTICE BATTU DEVANAND

              WRIT PETITION No. 10340 of 2014

ORDER:

This Writ Petition has been filed by the petitioner,

under Article 226 of the Constitution of India, for the following

relief:

"...to issue a Writ, order or direction more particularly one in the nature of Writ of Certiorari call for the records pertaining to the impugned Lr.No.Dy Sup/785 (1998/14)/14/RM-VZM - NECR: VZM, dated 13.03.2014, and quash the same as it is void, illegal and it is contrary to the G.O.Ms.No.350, dated 30.07.1999 and consequently direct the respondents to appoint petitioner in any suitable post compassionately on the death of petitioner's father, who died in harness and his staff No. is 453459 by declaring the action of the respondents as it is arbitrary, illegal, unjust and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

2) Heard Sri Tarlada Rajasekhar Rao, learned counsel for

the petitioner and Sri N. Srihari, learned Standing Counsel for

APSRTC appearing for the respondents and perused the

record.

3) It is submitted by the learned counsel for the petitioner

that the father of the petitioner, who worked as Driver in

respondent Corporation, died in harness on 11.03.2009. The

3rd respondent has issued a certificate stating that the father

of the petitioner has not availed any additional monetary

benefits in lieu of employment. Consequent to the sudden

demise of the sole bread winner of the family, the wife of the

petitioner viz., Smt. Chinnammudu submitted an application

seeking to provide employment on compassionate grounds. It

was rejected by the respondents informing her, her request

could not be considered since she was not having required

qualification for the post of Conductor or Shramik.

4) Subsequently, the petitioner, daughter of the deceased

employee has submitted an application seeking appointment

on compassionate grounds in any suitable post. The

respondents informed the petitioner that there is a ban on the

recruitment under compassionate grounds at that time. The

State Government lifted the ban vide G.O.Ms.No.2, dated

05.01.2013 and accorded permission to the respondents to

take up appointments on compassionate grounds with

retrospective effect. The mother of the petitioner also gave

"no objection" to appoint the petitioner on compassionate

grounds. Against the inaction of the respondents in not

considering the case of the petitioner, the petitioner filed

W.P.No.1998 of 2014 before this Court. The said writ petition

was disposed of by its order, dated 28.01.2014 directing the

respondent Nos.2 therein to consider the case of the petitioner

for appointment on compassionate grounds provided her name

is in the list of 1120 identified cases and take an appropriate

decision in the matter. Subsequently, the respondent No.2

issued proceedings in letter No.Dy Sup/785(1998/14)/14/RM-

VZM, dated 13-03-2014 on the ground that the petitioner is

ineligible for consideration on compassionate grounds as she

got married and she is not dependent on the deceased father.

5) Learned counsel for the petitioner would submit that the

petitioner and her mother are the dependents on the deceased

employee. The husband of the petitioner is also an

unemployee and is a daily wager. Learned counsel submits

that in terms of G.O.Ms.No.350, dated 30.07.1999, the

married daughters also entitled for consideration of

appointment on compassionate grounds. This Court also held

that married daughter is entitled for appointment on

compassionate grounds. Under these circumstances, rejection

of the claim of the petitioner on the ground that she is a

married daughter is illegal, unjust and contrary to the object

of scheme of compassionate appointment and sought to allow

the writ petition directing the respondents to consider the case

of the petitioner for compassionate appointment.

6) On the other hand, the learned Standing Counsel

appearing for the respondents would submit that consequent

to the death of the father of the petitioner, who was working

as Driver in Srikakulam Depot, the mother of the petitioner

submitted an application seeking appointment under

compassionate grounds as Conductor and her claim was

rejected on the ground that she was not having required

qualification for the post of Conductor of Shramik. The claim

of the petitioner was considered consequent to the orders of

this Court in W.P.No.1998 of 2014 and it was rejected vide

proceedings in Letter No.Dy Sup/785(1998/14)/14/RM- VZM,

dated 13-03-2014 informing the petitioner that she is not

eligible and not entitled for the employment under the Bread

Winner scheme.

7) Learned Standing Counsel further submits that the

married daughters are not entitled for employment under the

scheme and the G.O.Ms.No.350, dated 30.07.1999 is not

applicable to the case of the petitioner as it was not opted by

the respondents and it is not in purview of G.O.Ms.No.2, dated

05.01.2013. Under these circumstances, learned Standing

Counsel sought dismissal of the writ petition.

8) This Court gave anxious consideration to the submissions

of the learned counsel for the petitioner and the material

placed on record. The learned counsel for the petitioner

placed reliance on the following decisions:

(1) Bhuvaneshwari V. Puranik vs. The State of Karnataka and others1;

2021(1) AKR 444=2021(1) SCT 125 (Karnataka)

(2) Commissioner of Police, Hyderabad City and others vs. K. Padmaja2; and

(3) V. Shashi Kala vs. District Collector, Anantapuramu and other3.

9) Learned Standing Counsel appearing for the respondents

relied on the following decisions:

(1) MGB Gramin Bank vs. Chakrawarti Singh4;

(2) Indian Bank and others vs. Promila and another 5;

(3) Life Insurance Corporation of India vs. Asha Ramachhandra Ambekar (Mrs) and another6;

(4) Government of Andhra Pradesh and others vs. D. Gopaiah7; and

(5) Umesh Kumar Nagpal vs. State of Haryana and others8.

10) The only issue to be considered in the present writ

petition is whether the petitioner being a married daughter of

the deceased employee is entitled for consideration for

appointment under compassionate grounds or not.

11) It is an admitted fact that the father of the petitioner,

who was working as Driver in the respondent Corporation,

died in harness on 11.03.2009 leaving behind his wife and the

2013(4) ALT 501 (D.B)

2019(3)ALD 338 (DB)

(2014) 13 Supreme Court Cases 583

(2020) 2 Supreme Court Cases 729

(1994) 2 Supreme Court Cases 718

2001 (6) ALD 759 (FB)

(1994) 4 Supreme Court Cases 138

petitioner. The deceased employee is the only bread winner of

the family. It is also an admitted fact that the petitioner was

married and she and her husband having no any permanent

source of income and they are daily wagers. It is also an

admitted fact that the wife of the deceased employee i.e., the

mother of the petitioner sought appointment on

compassionate grounds consequent to the death of her

husband, but her claim was rejected by the respondents on

the ground that she was not having required qualification for

the post of Conductor or Shramik. The case of the petitioner

was also rejected on the ground that the petitioner being a

married daughter of the deceased employee is not entitled for

appointment on compassionate grounds.

12) Learned Standing Counsel for respondent Corporation

placed before this Court the "scheme of Bread Winner" and its

comprehensive instructions issued vide Circular No.PD-

30/2000, dated 05.05.2000. It was stated in the said scheme

that in order to mitigate hardships to the families of

employees died in harness and distress, due to loss of Bread

Winner, the Corporation has introduced a "Bread Winner

Scheme" for providing employment to the dependents of

employees died in harness and instructions have been issued

from time to time regarding the methodology to be followed

for providing employment under this Scheme.

13) As per the said scheme at clause III, the criteria for

eligibility is prescribed which is extracted as hereunder for

proper adjudication of the issue:

III. ELIGIBILITY:

The Spouse or one child (either son or unmarried daughter)

(emphasis is ours) of employee died in harness be considered for

appointment under Bread Winner Scheme provided-

1) None of the children or Spouse of the employee died in harness is already employed either in APRTS or elsewhere.

2) The dependent child should attain the minimum age of 18 years as on the date of submission of application for consideration for the post of Driver/Conductor/Shramik.

3) Applications seeking employment be submitted within a period of 3 years from date of death of the employee.

4) The candidate is in possession of requisite qualifications as prescribed in Recruitment Regulations or communicated from time to time.

5) There should be sanctioned vacancy.

6) No Supernumerary post shall be created.

14) On careful consideration of the above eligibility criteria

prescribed under the Bread Winner Scheme, it appears that

the Spouse or one child i.e., son or unmarried daughter

of employee died in harness are entitled for consideration

under the scheme of Bread Winner subject to certain

conditions. The respondents relying on this eligibility criteria

in which married daughter was not included, the claim of the

petitioner was rejected as she is being a married daughter.

15) The Government of Andhra Pradesh formulated a scheme

of compassionate appointments to the dependents of the

deceased government employees in the year 1977 vide

G.O.Ms.No.687, General Administration (Ser.A) Department,

dated 03.10.1977. Certain instructions/clarifications/further

orders were issued from time to time in the matter. A

comprehensive note on the scheme of compassionate

appointments to the dependents of the deceased government

employees is consolidated vide Circular Memo No.60681/

Ser.A/2003-1, General Administration (Ser.A) Department,

dated 12.08.2003. The scheme was later extended to State

Level Public Undertakings. The scheme was dispensed with

for some time in State Level Public Undertakings due to

financial restrains and introduced the scheme of granting

exgratia. The scheme of compassionate appointment was

dispensed with in respondent Corporation in the year, 1998.

16) It appears on persuasion of the respondent Corporation,

the State Government issued G.O.Ms.No.2, Transport, Roads

& Buildings (TS.II) Department, dated 05.01.2013 permitting

the Corporation to reintroduce the scheme of compassionate

appointments with effect from 01.01.1998. Thereafter,

G.O.Ms.No.15, Transport, Roads & Buildings (TS.II)

Department, dated 07.02.2014 was issued clarifying that the

scheme of compassionate appointments shall be in force for

future claims also. It appears basing on the report submitted

by the Committee of Officers constituted by the Vice Chairman

& Managing Director of the respondent Corporation,

comprehensive guidelines were issued vide Notification No.PD-

2/2015, dated 10.02.2015 prescribed the eligibility

qualifications for the respective posts and criteria for

consideration of eligibility of claims of the dependents of the

deceased employees.

17) The Government of Andhra Pradesh vide G.O.Ms.No.350,

General Administration (Ser.A) Department, dated 30.07.1999

in which it was clarified that when there is only a married

daughter to the deceased government employee without older

or younger brothers or sisters and the Spouse of the deceased

government employee is not willing to avail the compassionate

appointment, such married daughter may be considered for

compassionate appointment, provided she is depending on the

deceased government employee and subject to satisfying the

other conditions and instructions issued on the scheme from

time to time.

18) The relevant clauses of the scheme of compassionate

appointment in the consolidated instructions issued by the

State Government in Circular Memo No.60681/ Ser.A/2003-1,

General Administration (Ser.A) Department, dated 12.08.2003

are extracted as hereunder:

II. Depending family members means;

      (a)     Spouse.

      (b)     Son/daughter of regular Government employees.

      (i)      xxxx

      (ii)     xxxx

(iii) When there is only a married daughter to the deceased government employee without older or the younger brothers or sisters and the Spouse of the deceased government employee is not willing to avail the compassionate appointment, such married daughter may be considered for compassionate appointment, provided she is dependent on the deceased government employee.

19) On careful examination of G.O.Ms.No.350, General

Administration (Ser.A) Department, dated 30.07.1999 and

Circular Memo No.60681/ Ser.A/2003-1, General

Administration (Ser.A) Department, dated 12.08.2003, it was

mentioned therein that the married daughters also entitled for

appointment on compassionate grounds subject to certain

conditions.

20) But, in comprehensive instructions issued by the

respondent Corporation in Circular No.PD-30/2000, dated

05.05.2000 in clause (III) eligibility criteria it was mentioned

that the Spouse or one child (either son or unmarried

daughter) of employee died in harness be considered for

appointment under Bread Winner Scheme. On careful

consideration of the same, it is clear that "married daughters"

are not included for consideration for appointment under the

"Bread Winner Scheme".

21) The contention of the petitioner is that the above

provision of the Bread Winner Scheme of the respondent

Corporation for debarring married daughters for

compassionate appointment is irrational. This Court finds

some force in the contention of the learned counsel for the

petitioner.

22) The object of compassionate appointment is a social

security measure to support the family of the deceased

government servant, who dies in harness. The aim and object

of the policy for compassionate appointment is to provide

financial support to the family of the deceased employee, who

left the dependents in distress and penury. The core aim of

the object of providing compassionate appointment is to relief

the family from financial sufferings being faced for the sudden

demise of the Bread Winner of the family. The sufferings

being faced by the dependents of the deceased employee for

sudden demise of the Bread Winner could be solved for some

extent by providing compassionate appointment to the one of

the dependents of the deceased employee to look after the

family. While the State Government and its instrumentalities

implementing the scheme of compassionate appointments to

help the destitute families of the deceased employees, but

incorporating such clause in eligibility criteria discriminating

the daughters, who are being married is appears to be illegal

and unjust.

23) It appears from the above condition of eligibility criteria

that there is no such condition for 'son' whether he is married

or unmarried. But with respect to the daughter, it was

mentioned that 'unmarried daughter' is only eligible. The

married daughters are declared as ineligible on the ground

that she is married. Showing discrimination towards 'married

daughter' because she is being married as and when there is

no such ineligibility applicable to a 'married son' appears to be

arbitrary and discriminatory.

24) This Court is of the considered opinion that the sons and

daughters whether they are unmarried or married, they are

part of the family of their parents for the entire life. Just

because of the daughter is got married, saying that she is not

the member of her parents family is nothing but atrocities.

Because of her marriage the daughter would not cease her

status as member of the family of her parents.

25) "A child remains a child to parent, whatever be their

gender". A son or a daughter does not cease their relationship

with their parents as children upon being married. The

relationship of children with their parents cannot be governed

by their martial status. The daughters and sons have

equivalent rights and duties with respect to their parents. This

court has witnessed several instances where the daughters,

married or unmarried, have been performing customary rites

on the occasion of demise of their parents and carrying the

whole burden of the family upon their shoulders.

26) This court can visualize this aspect in a different

perceptive. The Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 (Act No.56 of 2007) is enacted by

Parliament to provide for more effective provisions for the

maintenance and welfare of parents and Senior Citizens

guaranteed and recognized under the Constitution. The

relevant provisions of the said Act are as extracted here under

for better appreciation of the present case:

2. Definitions:

(a) "Children" includes son, daughter, grandson and grand-daughter but does not include a minor;

(d) "Parent" means father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen;

4. Maintenance of parents and senior citizens.- (1) A

senior citizen including parent who is unable to maintain

himself from his own earning or out of the property owned

by him, shall be entitled to make an application under

Section 5 in case of -

(3) The obligation of the children to maintain his or her

parent extends to the needs of such parent either father

or mother or both, as the case may be, so that such

parent may lead a normal life.

27) The Parliament while enacting the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007, defined the

"children" as son, daughter, grandson and grand-daughter.

The Parliament never intended to interpret or differentiate the

daughter as married daughter or unmarried daughter. The

obligation was cast upon the children to maintain their parents

to cater the needs of such parent either father or mother or

both to lead a normal life.

28) On careful consideration of the provisions of this Act, the

obligation to look after or take care of their parents by the

daughters after their marriage has not taken away. The

married daughter also has the obligation and responsibility to

attend the needs of her parents to lead normal life. As such,

it is clear from the provisions of the Act No.56/2007 also there

is no difference between the sons and daughters whether they

are married or unmarried in discharging their responsibilities

and obligations towards their parents.

29) This Court has fortified the judgments rendered by

various High Courts, which are extracted as hereunder:

30) In Smt.Bhuvaneshwari V. Puranik's case (1 supra) the

High Court of Karnataka while holding the exclusion of married

daughters from the ambit of expression 'family' in Rule 2(1)(a)(i),

Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services

(Appointment on Compassionate Grounds) Rules, 1996 is illegal and

unconstitutional being violative of Articles 14 and 15 of the

Constitution observed as extracted hereunder:

14.4. In all the illustrations the offer of appointment or its denial is on the basis of gender as the sons of a deceased Government servant may well be married but are not denied appointment on the ground of marriage. If the daughters of a Government servant are married as marriage is a social commitment of a parent and in furtherance of such social commitment the daughter is given in marriage becomes ineligible to seek appointment in terms of the Rules. Therefore, the Rules insofar as it creates division of the same object of appointment on the basis of gender by granting appointment to a son without any qualification and denying the same to a daughter with the qualification of "marriage" cannot but be held to be discriminatory. Marriage does not determine the continuance of the relationship of a child with the parent, whether son or a daughter. Son continues to be a son both before and after marriage and a daughter also should continue to be a daughter both before and after marriage. This relationship does not get effaced by the fact of marriage, as marriage does not severe the relationship of the daughter with the parent. These relationships are neither governed nor defined by marital status. This notion on which the Rule is framed cannot answer the tests of Articles 14 and 15 of the Constitution of India.

15.5. The Rule that is called in question and has fallen for interpretation, without a shadow of a doubt is discriminatory as the words "unmarried" permeates through the entire fabric of Rule 2 and 3 as extracted hereinabove to deny appointment to a married daughter. If the Rule is left as it is, in view of my preceding analysis, would create a discrimination on the basis of gender. If the marital status of a son does not make any difference in law to his entitlement for seeking appointment on compassionate grounds, the marital status of a daughter should make no difference, as the married daughter does not cease to be a part of the family and law cannot make an assumption that married sons alone continue to be the part of the family. Therefore, the Rule which becomes violative of Articles 14, 15 on its interpretation will have to be struck down as unconstitutional as excluding the daughters purely on the basis of marriage will constitute an impermissible discrimination which is invidious and be violative of Articles 14 and 15 of the Constitution of India.

31) In Mamata Devi vs. State of Himachal Pradesh &

others9, the High Court of Himachal Pradesh at Shimla, in a

similar issue arose with regard to non consideration of married

daughter for compassionate appointment, it is observed as

extracted hereunder:

True it is that under the Constitution of India it is impermissible for State to draw any assumption to use marriage as a rationale for practicing an act of hostile discrimination by denying benefit(s) to a daughter, when equivalent benefits are being granted to a son in terms of compassionate appointment. Marriage neither alters the relationship between the married daughters with her

2020 SCC OnLine HP 2125

parents, nor creates severance of relationship. A son remains a son and his marriage does not alter or severe his relation with his parents, likewise, a daughter is always a daughter to her parents, her marriage also does not alter or severe her relation with her parents. If, the State even draws a thin line of distinction based on gender, then that line has to withstand the test of Articles 15 of the Constitution of India, which prohibits discrimination on the basis of religion, race, caste, sex or place of birth. In the instant case, the classificatory distinction, as drawn by the respondents, debarring the married daughter is, could not withstand the test of Article 15 of the Constitution of India.

12. Another point, which we need to delve on, is whether with the marriage of a daughter, her dependency on her parents ceases or it remains unaffected? The daughters have all the rights, which are available to sons, be it succession, right(s) in property etc. and these rights don't cease with marriage of a daughter and remain alive even after marriage. In fact, marriage is a social circumstance and it does not affect the dependency, thus marriage cannot be regarded as a reasonable and acceptable ground to determine dependency. For dependency (herein financial dependency), many facets have to be looked into, one of them is a situation where a son is not in need of compassionate appointment, but a married daughter is in need of the same, then the State cannot shrug off from its responsibility, rather duty, to provide compassionate appointment to her and the State cannot turn its back to a daughter, on unacceptable ground that she is married, who looks towards the State with the eyes of hope.

32) In Smt. Vimla Srivastava and others vs. State of

U.P. and others10, the High Court of Allahabad observed as

hereunder:

2016(1) ADJ 21 (DB)

"The issue before the Court is whether marriage is a social circumstance which is relevant in defining the ambit of the expression "family" and whether the fact that a daughter is married can constitutionally be a permissible ground to deny her the benefit of compassionate appointment. The matter can be looked at from a variety of perspectives. Implicit in the definition which has been adopted by the state in Rule 2 (c) is an assumption that while a son continues to be a member of the family and that upon marriage, he does not cease to be a part of the family of his father, a daughter upon marriage ceases to be a part of the family of her father. It is discriminatory and constitutionally impermissible for the State to make that assumption and to use marriage as a rationale for practicing an act of hostile discrimination by denying benefits to a daughter when equivalent benefits are granted to a son in terms of the compassionate appointment. Marriage does not determine the continuance of the relationship of a child, whether a son or a daughter, with the parents. A son continues to be a son both before and after marriage. A daughter continues to a daughter. This relationship is not effaced either in fact or in law upon marriage. Marriage does not bring about a severance of the relationship between, a father and mother and their son or between parents and their daughter. These relationship are not governed or defined by marital status. The state has based its defence in its reply and the foundation of the exclusion on a paternalistic notion of the role and status of a woman. These patriarchal notions must answer the test of the guarantee of equality under Article 14 and must be held answerable to the recognition of gender identity under Article

15.

The stand which has been taken by the state in the counter affidavit proceeds on a paternalistic notion of the position of a woman in our society and particularly of the position of a daughter after marriage. The affidavit postulates that after marriage, a daughter becomes a member of the family of her husband and the responsibility of her maintenance solely lies upon her husband. The second basis which has been indicated in the affidavit is that in Hindu Law, a married daughter cannot be considered as dependent of her father or a dependent of a joint Hindu Family. The assumption that after marriage, a daughter cannot be said to be a member of the family of her father or that she ceases to be dependent on her father irrespective of social circumstances cannot be countenanced. Our society is governed by constitutional principles. Marriage cannot be regarded as a justifiable ground to define and exclude from who constitutes a member of the family when the state has adopted a social welfare policy which is grounded on dependency. The test in matter of compassionate appointment is a test of dependency with defined relationships. There are situations where a son of the deceased government servant may not be in need of compassionate appointment because the economic and financial position of the family of the deceased are not such as to require the grant of compassionate appointment on a preferential basis. But the dependency or a lack of

dependency is a matter which is not determined a priori on the basis of whether or not the son is married. Similarly, whether or not a daughter of a deceased should be granted compassionate appointment has to be defined with reference to whether, on a consideration of all relevant facts and circumstances, she was dependent on the deceased government servant. Excluding daughters purely on the ground of marriage would constitute and impermissible discrimination and be violative of Articles 14 and 15 of the Constitution.

A variety of situations can be envisaged where the application of the rule would be invidious and discriminatory. The deceased government servant may have only surviving married daughters to look after the widowed parent- father or mother. The daughters may be the only persons to look after a family in distress after the death of the bread earner. Yet, under the rule no daughter can seek compassionate appointment only because she is married. The family of the deceased employee will not be able to tide over the financial crisis from the untimely death of its wage earner who has died in harness. The purpose and spirit underlying the grant of compassionate appointment stands defeated. In a given situation, even though the deceased government employee leaves behind a surviving son, he may not in fact be looking after the welfare of the surviving parents. Only a daughter may be the source of solace emotional and financial, in certain cases. These are not isolated situations but social realities in India. A surviving son may have left the village, town or state in search of employment in a metropolitan city. The daughter may be the one to care for surviving parent. Yet the rule deprives the daughter of compassionate appointment only because she is married. Our law must evolve in a robust manner to accommodate social contexts. The grant of compassionate appointment is not just a social welfare benefit which is allowed to the person who is granted employment. The purpose of the benefit is to enable the family of a deceased government servant, who dies in harness, to be supported by the grant of the compassionate appointment to a member of the family. Excluding a married daughter from the ambit of the family may well defeat the object of the social welfare benefit.

... ... ... ... ... ... ...

Dealing with the aspect of marriage, the Division Bench held as follows:

"Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasis that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters, by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status.""

33) In N. Uma vs. The Director of Elementary School

Education & others, Writ Petition No.25366 of 2008,

decided on 22.09.2017, the High Court of Madras has

observed as hereunder:

"13. All the above judgments have clearly observed that the State Government should not discriminate inspite of giving compassionate appointment to the sons and daughters of the deceased employee. When the Government is giving appointment to the married sons, they should not deny to give employment to the married daughters. But in this case, only on the ground of marriage of this petitioner, who is the daughter of the deceased mother, is denied by citing marriage as a reason and such action of the State is against the very scheme of the Constitution. The preamble of the constitution ensures equality of status and opportunity to all its citizens. The Government should not discriminate or deprive to woman on the ground of marriage, while the same is r not a restriction in the case of a man.

14. Admittedly, in this case, the deceased employee has died during the course of the employment by leaving her two daughters viz., M.Manjula and M.Indra. Infact, the elder daughter of the deceased employee by viz., M.Manjula is a mentally retarded person and this petitioner, who is the second daughter of the deceased employee should take care of the first daughter. But, without considering all the above Government Orders and the judgments of this Court passed in the above writ petitions and the pathetic condition of the petitioner's family, the respondent mechanically passed the present impugned order by stating that the petitioner is a married woman and hence she is not entitled to the compassionate appointment. Again, the view of the respondent is totally illegal and he had not applied his mind. In all the above judgments cited supra, this Court directed the Government Authorities to give employment to the married daughter without discrimination but this respondent purposely rejected the request of the petitioner on the sole ground that she is a married daughter of the deceased employee.

... ... ... ... ... ... ...

15. In fact, this Court in the case of R.Govindammal Vs. Principal Secretary, Social Welfare and Nutritious Meal Programme Department, Chennai in 2015 (5) CTC 344 has directed the first respondent to provide compassionate appointment to the petitioner, is she is otherwise eligible, without reference to marriage. In the

said order, the learned Judge of this Court issued a direction to the Chief Secretary of the Tamil Nadu Government, to suitably modify the Government Order in G.O.Ms.No.165, Labour and Employment Department, dated 30.08.2010 in the light of the observations made above.

16. The learned Additional Government Pleader, for the respondent Mr.R.Vijayakumar, argued that the impugned order dated NIL was passed in accordance with the above Government Orders. Since, the Government Order is restricted to give employment to the married daughters and hence, he sustained the impugned order.

17. In my considered opinion and by going through the above judgments and on perusing the impugned order passed by the respondent it is unfortunate to note here that the respondent without considering the pathetic situation of the petitioner's case that the elder sister viz., M.Manjula, is a mentally retarded person and she ought to have been taken care of by her family members, the respondent has passed the impugned order in a mechanical manner without mentioning any other ground except the ground of married daughter. All the above cases cited supra has rightly directed the respondent authorities to provide compassionate appointment without reference to the marriage of the petitioner. In the present case also, the above judgment is squarely applicable." (emphasis supplied)

18. The above said decisions apply on all fours to the case on hand. In the instant case, the deceased Government servant has no male issue. If the other legal heirs have given no objection to the petitioner being granted appointment on compassionate grounds, it cannot be stated that the petitioner is not entitled to appointment merely because she is r married. That apart, Maintenance and Welfare of Parents and Senior Citizens Act places equal responsibility on both the son and daughter to take care of their parents.

19. There can be no artificial classification between married son and married daughter only on the basis of sex, as the same would tantamount to gender discrimination. If married son is considered to be a part of the family, this Court is at a loss to understand as to why a married daughter should not be included in the definition of family.

20. Son and daughter are supposed to take care of the parents at the old age. The married son is to be treated at part with the unmarried daughter. No considering the married daughter for compassionate appointment

merely on the basis of marriage is patently arbitrary and unreasonable.

34) In Udham Singh Nagar District Cooperative Bank

Ltd. & another vs. Anjula Singh and others11, the High

Court of Uttarkhand (Full Bench) held as hereunder:

"non-inclusion of a "married daughter" in the definition of a "family", under rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is discriminatory and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India. Resultantly, a "married daughter" was also held to fall within the inclusive definition of "family" of the deceased Government servant, for the purpose of being provided compassionate appointment under the 1974 Rules and the 1975 Regulations. Thus, the judgment (supra) is fully applicable to the present case."

35) In C.B. Muthamma vs. Union of India12, the Hon'ble

Apex Court at para Nos.6 and 7 observed as extracted

hereunder:

6. At the first blush this rule is in defiance of Article

16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman's thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity viz. our women, is a sad reflection on the distance between Constitution in the book and law in action. And if the executive as the surrogate of Parliament, makes rules in the teeth of Part III especially when high political office, even

2019(3) STC 570 (Uttarakhand) = (2019) 2 UPLB EC1

(1979) 4 SCC 260

diplomatic assignment has been filled by women, the inference of diehard allergy to gender parity is inevitable.

7. We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter-affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central Government's affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.

36) In Ranjana Murlidhar Anerao vs. State of

Maharashtra13, the High Court of Bombay (DB) held at para

No.13 as extracted hereunder:

13. From the aforesaid discussion, we have no hesitation in coming to the conclusion that the Government Resolution dated 20-2-2004 to the extent it excludes a married daughter from being considered as a member of the "family" a deceased retail license holder is violative of the provisions of the Articles 14, 15 and 19(1)(g) of the Constitution of India. The Hon'ble Minister, Food and Civil Supplies and Consumer Protection while passing the impugned order dated 17-6-2009 has taken into consideration the position as obtained from Government Resolution dated 20-2-2004. Hence the claim of the petitioner for being treated as a legal representative of deceased Godavaribai J. Jadhav has not been considered as the petitioner was considered to be a married daughter. In view of our aforesaid findings, the revision application under clause- 16 of the Licensing Order, 1979 will have to be remitted back for fresh decision in the light of our aforesaid findings. Hence, we pass the following order:

(a) The Government Resolutions/Circulars dated 22-12- 1997, 16-8-2001, 10-12-2003 and 20-2-2004 to the extent they exclude a married daughter from being considered as a member of the "family" of a deceased retail license holder

(2014) 5 Mah LJ 543

are held to be violative of the provisions of Articles 14, 15 and 19(1)(g) of the Constitution of India;

37) In Sou.Swara Sachin Kulkarni (Kumari Deepa

Ashok Kulkarni) vs. The Superintending Engineer, Pune

Irrigation Project Circle and another14, the Bombay High

Court held at para No.2 as extracted hereunder:

2. The petitioner claims that her name has been deleted only because she is married. A married daughter could not have laid a claim for compassionate employment, because in the perception of the respondent nos. 1 and 2, she is no longer a part of the family of the deceased. It is this stand, which is questioned before us, in this writ petition. Mr. Kulkarni, appearing on behalf of the petitioner submitted that the facts in this case are peculiar. The deceased only had daughters. Both daughters are married. The second daughter is not interested in the job. The petitioner is interested in the job because she is supporting her widowed mother. The mother has nobody to look forward to except the petitioner - daughter. The petitioner has asserted that even after her marriage she is looking after her mother in her old age. In such circumstances, the deletion of her name from the list is violative of the constitutional mandate of Article 14 and 16 of the Constitution of India.

38) In K. Padmaja's case (2 supra), the High Court of Andhra

Pradesh while considering an identical issue that respondent-

applicant in the said case was married daughter and she failed

to produce any proof to show that she was staying with the

deceased father at the time of his death and she was residing

in a separate house along with her husband and was eking her

livelihood by sewing the garments, and despite that, this Court

held as under:

2013 SCC OnLine BOM 1549 (DB)

"Even if the applicant is residing in a separate house that by itself, is not a ground to reject the claim of appointment. So far as the income of the applicant is concerned, it is proved that she is not having any independent income to live on her own and she is also taking care of the mother (widow of the deceased employee). No valid reasons are recorded by the authorities to reject the claim of the applicant for compassionate appointment."

39) In V. Shashi Kala's case (3 supra), the High Court of

Andhra Pradesh held as extracted hereunder:

"In the present case, undisputedly the petitioner is the elder daughter of the deceased and she along with her husband is staying at the place of the deceased even after her marriage. In the society, there are two types of families - one is wealthy and the other is poor. The wealthy people ask their daughters after marriage either to stay with them or to stay separately by making necessary arrangements. In the second category, the daughters continue to stay with their parents depending upon their income even after their marriage when they do not have source of income. The present case is of the second category."

40) This Court gone through the decisions relied by the

learned Standing Counsel appearing for the respondents. This

Court, with great respect, express its acceptance towards the

proposition of law laid down in those judgments. But, those

judgments are not applicable to the facts and circumstances of

the present case on hand.

41) In the present case the deceased employee left behind

his wife and the petitioner only. There are no brothers or

sisters to the petitioner. The claim of the mother of the

petitioner for compassionate appointment was rejected. Now

after demise of her father, it is the responsibility cast upon the

petitioner to take care of her old aged and widow mother, as

she is the only daughter to her parents and there is nobody to

take care of her mother for her remaining life. Due to this

reason also, the case of the petitioner has to be considered,

besides, the petitioner and her husband not having any

permanent source of income for their survival.

42) If the petitioner, who has to take care of her widowed

mother, is not given compassionate appointment, the whole

family will be pushed to indigenous condition and to penury

and the core aim and object of the compassionate

appointment scheme will be defeated. As such, this court

holds that the petitioner is entitled for compassionate

appointment under the "Bread Winner Scheme".

43) In view of the considered opinion expressed by this

Court in the above mentioned para Nos.22 to 28, the word

"unmarried" in clause-III of eligibility criteria of the "Bread

Winner Scheme" of the respondent Corporation has to be

struck down as unconstitutional as it is discriminatory,

arbitrary and violative of Articles 14 and 15 of the Constitution

of India.

44) For the above mentioned reasons, this Court pass the

following order:

(i) The Writ Petition is allowed;

(ii) The word "Unmarried" is strike down in clause-III of

eligibility criteria of "Bread Winner Scheme" of the respondent

Corporation holding it is discriminatory, arbitrary, unjust and

violative of Articles 14, 15, 16 and 21 of the Constitution of

India;

(iii) The proceedings of the 2nd respondent in Letter

No.Dy Sup/785(1998/14)/14/RM- VZM, dated 13-03-2014 is

set aside;

(iv) The respondents are directed to consider the claim

of the petitioner for appointment on compassionate grounds in

any suitable post under the Bread Winner Scheme of the

respondent Corporation, within a period of six (06) weeks

from the date of receipt of copy of this order; and

(v) There is no order as to costs.

Consequently, miscellaneous applications pending, if

any, shall stand closed.

__________________ BATTU DEVANAND,J Dt. 26.02.2021.

Note: LR copy be marked.

Issue CC in two days.

B/o PGR

*HON'BLE SRI JUSTICE BATTU DEVANAND

+ W.P.No.10340 of 2014

% 26.02.2021

# Ch. Damayanthi D/o late Pentayya, Aged 36 years, Household duties, R/o D.No.11-1-41, Manadala Street, Srikakulam District-532 001.

... Petitioner.

Vs.

$ APSRTC rep by its Managing Director, Office at Busbhavan, Musheerabad, RTC Cross Roads, Hyderabad and others. .... Respondents.

! Counsel for the petitioner: Sri TarladaRajasekhar Rao.

! Counsel for the Respondents: Sri N. Srihari.

< Gist:

> Head Note:

? Cases referred:

2021(1) AKR 444=2021(1) SCT 125 (Karnataka)

2013(4) ALT 501 (D.B)

2019(3)ALD 338 (DB)

(2014) 13 Supreme Court Cases 583

(2020) 2 Supreme Court Cases 729

(1994) 2 Supreme Court Cases 718

2001 (6) ALD 759 (FB)

(1994) 4 Supreme Court Cases 138

2020 SCC OnLine HP 2125

2016(1) ADJ 21 (DB)

2019(3) STC 570 (Uttarakhand) = (2019) 2 UPLB EC1

(1979) 4 SCC 260

(2014) 5 Mah LJ 543

2013 SCC OnLine BOM 1549 (DB)

DATE OF ORDER PRONOUNCED: 26.02.2021

THE HON'BLE SRI JUSTICE BATTU DEVANAND

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No Marked to Law Reporters/Journals.

3. Whether Their Ladyship/Lordship wish Yes/No to see the fair copy of the Judgment?

_______________________ JUSTICE BATTU DEVANAND

THE HON'BLE SRI JUSTICE BATTU DEVANAND

WRIT PETITION No.10340 of 2014

Dt. 26-02-2021

Note: LR copy be marked.

Issue CC in two days.

B/o PGRp