Bombay High Court
Manisha Namdevrao Chole vs The State Of Maharashtra And ... on 19 October, 2015
Bench: S.S. Shinde
10843.2014 WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10843 OF 2014
Manisha Namdevrao Chole,
Age 26 Years, Occ. Nil,
R/o. At Post Dhamangaon,
Ta. Jalkot, District Latur PETITIONER
VERSUS
1] The State of Maharashtra,
Through its Secretary
Rural Development Department,
Mantralaya, Mumbai
2] The Zilla Parishad, Latur,
Through its Chief Executive Officer
3] The District Selection Committee,
Latur, through President,
District Collector, Latur
4] The District Selection Committee /
District Health Officer,
Through its Member Secretary
Zilla Parishad, Latur
5] Deputy Collector [Rehabilitation],
Latur, Tal. and Dist. Latur
[Amended as per Court's Order
dtd.13.07.2015] RESPONDENTS
...
Mr. Anand V. Patil Indrale, Advocate for the Petitioner
Mr. V.H.Dighe, AGP for Respondent / State
Mr. D.S.Mali, Advocate for the Respondent Nos.2 & 4
...
CORAM: S.S.SHINDE &
A.M.BADAR, JJ.
Reserved on : 13.10.2015
Pronounced on: 19.10.2015
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JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith, and
heard with the consent of the parties.
3] This Petition is filed with following prayer:
B]
ig By issuing a writ of mandamus or any other
appropriate writ, order or directions the
respondents No.2 to 4 be directed to consider
the claim of petitioner for appointment on the
post of Arogya Sevak [women] form OBC as
well as Project Affected Category, in
accordance with law and consequently, the
petitioner be issued such appointment order
and for that purpose necessary directions be
issued.
B-1] By issuing writ of mandamus or any other
appropriate writ, order or directions, the
respondent No.2 to 4 be directed to include the
name of petitioner in the final selection list (at
Annexure-'E') for the post of Arogya Sevak
(Women) from OBC and Project Affected
Category and she be issued appointment order
accordingly and for that purpose necessary
directions be issued.
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B-2] By issuing appropriate writ, order or directions,
it be held and declared that, the clause 3-C of
Government Resolution dated 21/01/1980
issued by State of Maharashtra, through
General Administration Department thereby
laying down that, married daughters of project
affected persons, as not qualified for
appointment in government employment, as
unconstitutional and ultra vires and for that
ig purpose necessary directions be issued.
4] It is the case of the petitioner that, the
petitioner had applied for the post of Arogya Sevak
[Women], in pursuant to the requisition made by
respondent Nos.2 to 4, vide advertisement dated 22nd
August, 2014. By the said Advertisement, it was informed
that, for the post of Arogya Sevak [Women] along with
other posts, there were total 10 vacancies. It is further the
case of the petitioner that, the petitioner, belongs to OBC
as well as Project Affected category, applied for the post of
Arogya Sevak [Women].
5] It is further the case of the petitioner that, in
the written examination the petitioner secured 92 marks
out of 200 marks, as such, the petitioner was successful
candidate as per the condition prescribed in the
advertisement. According to her knowledge, she was the
only candidate, who had applied for the post of Arogya
Sevak [Women] from OBC as well as Project Affected
Category.
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6] It is further the case of the petitioner that, on
12th November, 2014, the petitioner was called for
verification and submission of documents along with the
other candidates. Accordingly, on 12th November, 2014,
the petitioner appeared before the Selection Committee,
and submitted her documents. Initially, the petitioner was
not having a Project Affected Nomination Certificate, but as
soon as she received the same, on 17th November, 2014 it
was submitted with permission of Committee. The said
certificate, ig submitted by the petitioner along with
application, was accepted by the Member of District
Selection Committee on 17th November, 2014, and the
petitioner was informed that, she would be considered for
appointment.
7] It is further the case of the petitioner that,
surprisingly, the petitioner got knowledge that, the
selection list of candidates, to whom appointment orders
are to be issued, is displayed wherein the name of the
petitioner is not appearing. Therefore, the petitioner made
an inquiry about status of her appointment order, at that
time the petitioner was orally informed that, selection of
petitioner for the post of Arogya Sevak [Women] from OBC
and Project Affected Category has been cancelled, since the
petitioner cannot be nominated as a candidate for
appointment from Project Affected Category by her father
in view of the fact that, the petitioner, who is married and
having children, cannot be said as member of her father's
family. Hence this Writ Petition.
10843.2014 WP.odt
8] The learned counsel appearing for the
petitioner submits that, the reason given by the
respondents for non consideration of claim of the petitioner
for appointment that, the petitioner cannot be said to be
member of family of her father in view of her marriage, is
absolutely illegal and improper. The petitioner has
successfully cleared the written examination, and therefore,
she is entitled to be appointed on the post of Arogya Sevak
[women] from OBC and Project Affected Category on the
basis of nomination
ig made by her father and the
respondents cannot deny the claim of petitioner on the non
existing ground that, the petitioner cannot be said as
member of her father's family. The said reason is against
the law and well settled legal position. It is further
submitted that, in view of the Judgment in the case of
Aparna Narendra Zambre & another Vs. Assistant
Superintendent Engineer & others1 even married daughter
is also entitled for the appointment on compassionate
ground. In that case, the High Court held that, the
employment cannot be denied on the ground that the
daughter is married, as such discrimination would be
unconstitutional. It is further submitted that, the act of
respondent Nos.2 and 4 thereby denying the claim of
petitioner for appointment from project affected category,
she being married daughter of his father cannot be
accepted, same being discriminatory in the light of
provisions of Constitution of India. Therefore, the learned
counsel submits that, the impugned action of respondent
Nos. 2 and 3 deserves to be quashed and set aside.
1 2011 [5] BCR 34
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9] On the other hand, the learned counsel
appearing for the respondent Nos.2 to 4 relying upon the
affidavit-in-reply submits that, the petitioner has applied for
the post of Arogya Sevak [Female] from the category of
Project Affected person, and subsequently, she qualified in
the examination held by Selection Committee on 8th
November, 2014, and also her name is included in the
select list. The petitioner was called by the Selection
Committee for verification and scrutiny of the documents
on 12.11.2014. At the time of scrutiny of documents, it was
noticed that, the petitioner has claimed reservation from
project affected category on the post of Arogya Sevak, and
she did not produce copy of certificate that she belongs to
project affected category, but produced receipt showing
that, her application, for seeking certificate of the project
affected category, is pending before the concerned
Authority. It is submitted that, on the date of declaration of
final selection list, the petitioner submitted her certificate of
project affected category to the Selection Committee. The
Selection Committee noticed that, though the petitioner is
from project affected person, she is married. It is further
submitted that, at the time of declaration of the selection
list, the Selection Committee came to the conclusion that,
since the petitioner is married daughter from Chole Family
and certificate transferred in her name after her marriage,
she can not claim appointment on the post of Arogya Sevak
from the project affected category. It is submitted that, the
Government Resolution also says that, married daughters
are not entitled for appointment from the project affected
category, and only unmarried daughters or the certificate
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possessed by daughter before her marriage only those are
eligible and liable to get the benefit of project affected
category. In the present case, the petitioner has got
certificate after her marriage, and therefore, her claim was
not considered.
10] One Mr. Dr. Pradeep Vishwambhar Marwale,
working as Deputy Collector [Rehabilitation], Latur, has also
filed affidavit-in-reply. In the said affidavit-in-reply, it is
stated that, one Shri Namdeo Shivram Chole had obtained a
Project Affected Certificate on 17.05.2003, by nominating
his son naming Nivrutti Namdeo Chole from the office of the
Deputy Collector [Rehabilitation], Latur. In the said
affidavit-in-reply, it is further stated that, Shri Namdeo
Chole had on 30.08.2014, made an application to his office,
requesting to change the nomination of his son Nivrutti N.
Chole and nominate the petitioner as his daughter. An
enquiry in this regard was made through Tahsildar,
Ahmedpur so as to verify whether the petitioner's brother
has utilized the certificate issued on 17.05.2003 and
whether the petitioner is dependent on Namdeo Shivram
Chole. A new certificate in this regard nominating the
petitioner has been issued by the office of the Deputy
Collector [Rehabilitation], Latur vide No.2014/190 dated
17.11.2014, after due enquiry.
11] We have given careful consideration to the
submissions of the learned counsel appearing for the
petitioner, learned AGP appearing for the respondent Nos.1
and 5, and the learned counsel appearing for the
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respondent Nos.2 and 4. With their able assistance,
perused the pleadings in the Petition, grounds taken
therein, annexure thereto, all other documents placed on
record, and affidavit-in-reply filed by the respondents.
Whether the married daughter is entitled for appointment
on compassionate ground, fell for consideration before the
Bombay High Court in the case of Aparna Narendra Zambre
& another Vs. Assistant Superintendent Engineer & others
[cited supra]. The Division Bench relying upon the Judgment
of the learned Single Judge of the Bombay High Court in
Writ Petition No.6056/2011 in the case of [State of
Maharashtra & Ors. Vs. Medha Prashant Parkhe], decided
on October 26, 2010, and also relying upon the exposition
of the Calcutta High Court in the case of [Smt. Usha Singh
Vs. State of West Bengal & Ors.]2, in the case of Manjula Vs.
State of Karnataka by its Secretary, Department of
Cooperation Bangalore & anr.3, in the case of R.Jaymma Vs.
Karnataka Electricity Board & anr.4, in the case of U.
Arulmozhi Vs. The Director of School Education5, in the case
of Savita Samvedi & Anr. Vs. Union of India & Ors.6 and in
the case of Dr.Mrs.Vijaya Manohar Arbat Vs. Kashirao
Rajaram Savai & Anr.7 taken a view that, appointment on
compassionate ground cannot be denied to the daughter
merely because she is married. The Supreme Court in the
case of C.B.Muthamma Vs. Union of India8, while
considering Rule 8 [2] of the Indian Foreign Service
2 2003 [2] L.L.N. 554
3 2005 [104] F.L.R. 271
4 1993 [I] L.L.J. 587
5 [2006] 2 L.W.324 [Mad.]
6 [1996] 2 SCC 380
7 [1987] 2 SCC 278
8 1979 [4] SCC 260
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[Conduct & Discipline] Rules, 1961, in para 4 to 7 held thus:
4. What is more manifest as misogynist in the
Foreign Service is the persistence of two rules
which have been extracted in the petition. Rule 8
(2) of the Indian Foreign Service [Conduct &
Discipline] Rules, 1961, unblushingly reads:
"Rule 8 (2) : In cases where sub-rule (1) does
not apply, a woman member of the service
ig shall obtain the permission
Government in writing before her marriage is
of the
solemnised. At any time after the marriage,
a woman member of the Service may be
required to resign from service, if the
Government is satisfied that her family and
domestic commitments are likely to come in
the way of the due and efficient discharge of
her duties as a member of the service".
5. Discrimination against women, in traumatic
transparency, is found in this rule. If a woman
member shall obtain the permission of government
before she marries, the same risk is run by
government if a male member contracts a
marriage. If the family and domestic commitments
of a woman member of the Service are likely to
come in the way of efficient discharge of duties, a
similar situation may well arise in the case of a
male member. In these days of nuclear families,
inter-continental marriages and unconventional
behaviour, one fails to understand the naked bias
against the gentler of the species. Rule 18 of the
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Indian Foreign Service [Recruitment, Cadre,
Seniority and Promotion] Rules, 1961, run in the
same prejudicial strain:
(1) ... ... ...
(2) ... ... ...
(3) ... ... ...
(4) No married woman shall be entitled as of
right to be appointed to the service.
ig 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 diplomatic assignment has been filled by
women, the inference of die-hard 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
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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.
12] In the facts of the present case, the respondent
No. 5 has filed affidavit-in-reply and stated that, father of
petitioner namely Shri Namdeo Chole had on 30.08.2014
made an application to the office of respondent No.5,
requesting to change the nomination of his son Nivrutti N.
Chole and nominated the petitioner as his daughter. In that
regard, an inquiry was made through Tahsildar, Ahmedpur
so as to verify whether the petitioner's brother has utilized
the certificate issued on 17.05.2003 and whether the
petitioner is dependent on Namdeo Shivram Chole, and
thereafter, decision is taken by the respondent No.5 to
issue new certificate nominating petitioner. It is also
mentioned in the affidavit-in-reply filed by the respondent
Nos.2 to 4 that, on 17.11.2014, the petitioner did submit
her certificate showing that, she belongs to Project Affected
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Category and the Selection Committee noticed that, the
petitioner is a married woman, and therefore, denied the
appointment on the post of Arogya Sevak [female]. The
learned counsel appearing for the respondent Nos.2 to 4
submitted that, in view of the Government Resolution dated
21st January, 1980, which is referred in para 6 of the
affidavit-in-reply, clause 2 (c) of the said Government
Resolution, lays down that, only unmarried daughters or the
certificate possessed by daughter before her marriage only
those are eligible and liable to get the benefit of project
affected category. In that respect, it would be apt to
reproduce herein below the definition of affected person in
sub-section [2] of Section 2 of the Maharashtra Project
Affected Persons Rehabilitation Act, 1999, which reads
thus:
2. In this Act, unless the context requires
otherwise, -
(1) ... ... ...
(2) ''affected persons" means -
(a) an occupant whose land in the
affected zone (including land in the gaothan) is
acquired under section 14 for the purposes of a
project:
Explanation. - For the purpose of this sub-
clause, where any agricultural land is recorded in
the relevant village records in the name of one of
the brothers as a Karta or Manager of a Hindu Joint
Family, then every brother (or son or sons of any
deceased brother all together as one unit) who has
a share in the lands, whether his name is recorded
in such village record or not, shall be treated as
affected person:
(b) a person who is a tenant in actual possession
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of land under the relevant tenancy law in the
affected zone at the time of acquisition of land;
(c) an occupant whose land in the benefited
zone is acquired for construction, extension,
improvement or development of canals and their
banks under irrigation project or for establishment
of a new gaothan within or outside the benefited
zone for rehabilitation of persons from affected
zone, and whose -
(i) residual cultivable holding is reduced
to less than one hectare after acquisition; or
(ii) residual holding stands divided into
fragments which are rendered unprofitable for
cultivation; or
(iii) residual holding is rendered
uncultivable.
Explanation- For the purposes of this sub-clause,
the expression "occupant" includes a tenant in
actual possession of land under the relevant
tenancy law in the benefited zone at the time of
acquisition of land;
(d) a person who is an agricultural labourer;
(e) a person, not being an occupant or a person
referred to in sub-clauses (a), (b), (c) and (d), who
for a continuous period of not less than five years
immediately before the date of publication of the
notification under section 4 of the Land Acquisition
Act, 1894, has been ordinarily residing or carrying
on any trade, occupation or calling or working for
gain in a gaothan in the affected zone;
It is not in dispute that, petitioner's father is a
affected person, whose land was acquired.
13] The provisions of Section 6 of the Act lays down
the duty of the Project Authority to take measures for the
speedy rehabilitation of the affected persons under the
overall supervision and guidance of the Collector. Section 6
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(b) and (c) of the Maharashtra Project Affected Persons
Rehabilitation Act, 1999, which reads thus:
6. It shall be the duty of the project authority, -
(a) ...
(b) to take measures for the speedy
rehabilitation of the affected persons under the
overall supervision and guidance of the Collector;
(c) subject to any reservations validly
made and subject to availability of posts, to give
highest priority in Class III and Class IV category of
service on the project establishment, to one
member of the affected family nominated by the
affected persons, if such member is eligible for such
employment according to the recruitment rules for
such posts;
Provided that, while recruiting a member of
the affected family, against such quota, the project
authority shall, as far as possible, employ not less
than fifty per cent, of such nominees who are
affected by the project under execution, as may be
prescribed;
Explanation - For the purpose, of this clause
the expression "family" means the spouse, son
married or unmarried daughter or brother or sister
or daughter-in-law or grandson, or grand-daughter
(which includes son or daughter of the daughter
also) of the affected persons, or adopted son or
daughter who is residing with and is dependent on
such affected person.
14] Upon careful perusal of the explanation
reproduced herein above in Section 6, for the purpose of
clause-c, the expression "family" means the spouse, son
married or unmarried daughter. Upon careful perusal of the
provisions of Section 6 of the Maharashtra Project Affected
Persons Rehabilitation Act, 1999, there is no any prohibition
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for appointment of a married daughter, subject to the
availability of the post.
15] In the light of the discussion in the foregoing
paragraphs, we are of the considered view that, the District
Selection Committee was not right and justified in denying
the appointment to the petitioner, on the post of Arogya
Sevak on the ground that, she is married daughter of her
father namely Namdevrao Shivram Chole.
16]
In that view of the matter, we direct the
respondent Nos.2 to 4 to reconsider the claim of the
petitioner for being appointed on the post of 'Arogya Sevak'
against suitable vacancy; and appoint her, if she is found
eligible in all other respects, including no other senior
person to her from the category of the project affected, is
kept waiting to be appointed against suitable vacancy in
the establishment of the respondent No.2.
17] Writ Petition is allowed in above extent. Rule is
made absolute accordingly.
Sd/- Sd/-
[A.M.BADAR] [S.S.SHINDE]
JUDGE JUDGE
DDC
