Calcutta High Court (Appellete Side)

Sangita Nath (Debnath) vs The State Of West Bengal & Ors on 14 March, 2023

14.3.2023
Ct.19/sl.20
   sn
                            W.P.A. 5408 of 2023

                          Sangita Nath (Debnath)
                                  Vs.
                       The State of West Bengal & Ors.

                    Mr. Dilip Kumar Maiti
                                               ..for the petitioner
                    Mr. Raja Saha
                    Mr. S.P. Lahiri
                                             ..for the State


                    The ground for rejection of the petitioner's

              application for compassionate appointment was that

              the petitioner had been married with a child at the

              time of death of her father.

                     The Hon'ble three judges Bench of this Court

              in the matter of The State of West Bengal & Ors.

              Vs. Purnima Das & Ors. reported in               (2017) SCC

              online 13121, held that a married daughter should

              also be treated as a 'dependant family member' and

              should not be rejected at the threshold. Appointment

              would however be, subject to fulfillment of other

              criteria. The relevant portion of the judgment is

              quoted below:-

                    "84. The classification here is brought about by
                    excluding 'married daughters' of a deceased
                    Government employee from the purview of
                    compassionate appointment, and the so called
                    "intelligible differentia" put forward is that
                    'married daughters' cease to be part of the
                    family of the Government employee on
                    marriage. As noticed earlier, the object of
                    appointment on compassionate ground is to
                    save the wrecked family by ensuring that the
                    dependents have a few crumbs of bread and a
                    few yards of cloth. This raises a few important
                      2




questions. First, as to who could form a class
to which the scheme for compassionate
appointment would apply? The appropriate
answer would be the immediate members of
the family of the deceased employee. This
question being answered, the incidental
question would be who are the immediate
family members? For a broad idea of who
would constitute the family of a person, the
relevant personal laws including family and
succession laws may be looked at. However, in
the context of compassionate appointment,
such laws may not be seen because the
purpose thereof is totally different. We are
inclined to hold that for the purpose of a
scheme for compassionate appointment every
such member of the family of the Government
employee who is dependent on the earnings of
such employee for his/her survival must be
considered to belong to 'a class'. Exclusion of
any member of a family on the ground that
he/she is not so dependent would be justified,
but certainly not on the grounds of gender or
marital status. If so permitted, a married
daughter would stand deprived of the benefit
that a married son would be entitled under the
scheme. A married son and a married daughter
may appear to constitute different classes but
when a claim for compassionate appointment
is involved, they have to be treated equally and
at par if it is demonstrated that both depended
on     the     earnings   of    their  deceased
father/mother (Government employee) for their
survival. It is, therefore, difficult for us to
sustain the classification as reasonable.
85. From the notifications/SCHEME of the
Government that embodies the policy decision
in relation to compassionate appointment, it is
manifest that from time to time qua daughters
the net has been spread far and wide. We can
safely presume that the Government did so
realising its mistake of failing to fulfil the
constitutional      mandate    of     guaranteeing
equality and obeying the directives in Part IV of
the Constitution that men and women equally
have the right to an adequate means of
livelihood. Initially and even till today 'married
daughter' has not been included in the
definition of 'dependent family member';
however, gradually, without removing the
adjective    'unmarried'    before     the   noun
'daughter', categorisation of daughters has
been effected and we are inclined to the view
that even a 'married daughter', as explained
                      3




hereafter, is now impliedly included within the
definition of a 'dependent family member'. The
first category is that of daughters who were
unmarried on the date of death of the
Government employee but may have been
married     during    the   pendency       of  the
applications for compassionate appointment. If
such daughter were found to be otherwise
eligible and suitable, she would be offered
compassionate appointment notwithstanding
her marital status. Therefore, it is an instance
of a daughter being considered for appointment
at a point of time when she is actually married.
In the second category are married daughters
who might have filed for divorce prior to death
of the Government employees and had
obtained divorce decrees after such death and
during the pendency of the applications, with
the rider that their cases would be considered
for appointment only after the marital ties are
dissolved by the decrees of competent courts.
Thus, it is a reverse case of the first category, ~
a 'married daughter' at the time of making
application being considered for compassionate
appointment at a point of time when she is
unmarried or single. In both cases, it has to be
proved to the satisfaction of the employer that
such daughters, belonging to either of the two
categories as aforesaid, were fully dependent
on the Government employees on the dates of
their death while in service. It is, however,
obvious that the net is yet to be spread wider
to cover a married daughter, who because of
estranged relationship with her husband,
might have been abandoned or deserted by him
and compelled to survive under the care of her
father/mother (Government employee) as a
dependent of such employee and was also fully
dependent on him/her on the date of his/her
death, leading to a grievance of the present
nature.

86. Curiously enough, the marital status of the
son of a deceased employee is not regarded as
germane for telling him off at the threshold. His
application for compassionate appointment
would be considered and if found that he was
not dependent on the earnings of his
father/mother (Government employee), then
only the application could call for rejection.

87. What follows from the aforesaid discussion
is that even if a married daughter on the date
of death of her father/mother was wholly
dependent on him/her, she would have no
                          4




     right under the notifications/SCHEME to even
     apply and offer her candidature. Without even
     a bare assessment of the dependency factor,
     the application of the married daughter would
     stand rejected whereas such an application at
     the instance of a married son would be
     considered and then an appropriate decision
     taken, based on evidence that is before the
     employer, whether to allow or disallow the
     same. This is one area where the learned Judge
     in the decision in Purnima Das (supra) has
     taken exception and held that married
     daughters are subjected to discrimination. We
     unhesitatingly share such view.

     88. Interestingly, we have noticed that while
     the adjective 'unmarried' has been used before
     the noun 'daughter', there is no such use of the
     adjective 'unmarried' before the noun 'sister' in
     paragraph 3 of the SCHEME. In the absence of
     user of such adjective, theoretically, even a
     married sister of an unmarried Government
     employee who dies-in-harness would be
     entitled to lay a claim for compassionate
     appointment and should she succeed in
     establishing that she had been fully dependent
     on her brother/sister (Government employee)
     prior to and at the time of death, and all other
     conditions as laid down in the SCHEME being
     fulfilled,  her    claim    for   compassionate
     appointment cannot be spurned based on her
     marital status and would obviously have to be
     considered further to take the same to its
     logical conclusion; but, howsoever precarious
     the condition of a married daughter dependent
     on her father/mother might be, she is shut out
     from even applying and, thus, there is no scope
     to consider whether she was at all dependent
     for her survival on the earnings of her deceased
     father/mother (Government employee) or not
     and also as to whether appointing her on
     compassionate ground would further its object
     or not."


     Thereafter, the Labour Department amended

the memorandum No. 251-Emp, dated December 3,

2013and daughters were included under the list of

dependants, meaning thereby, that the distinction
                             5




between married daughter and unmarried daughter,

had been done away with.

      Although, the notification dated November 4,

2022, provides that the new clause added to the

notification no. 251 Emp. dated December 3, 2013

would be applicable to pending cases, the decision of

the Hon'ble three judges Bench was already before

the authority when the case of the petitioner was

rejected. Moreover, the State respondents/labour

department had already contemplated to amend the

scheme upon deleting the expression "unmarried" as

per the direction of the Hon'ble Three Judges Bench.

The relevant portion of the judgment is quoted

below:-

"113. Consequently, the offending provision in the notification dated April 2, 2008 (governing the cases of Arpita and Kakali) and February 3, 2009 (governing the case of Purnima) i.e. the adjective 'unmarried' before 'daughter', is struck down as violative of the Constitution. It, however, goes without saying that after the need for compassionate appointment is established in accordance with the laid down formula (which in itself is quite stringent), a daughter who is married on the date of death of the concerned Government employee while in service must succeed in her claim of being entirely dependent on the earnings of her father/mother (Government employee) on the date of his/her death and agree to look after the other family members of the deceased, if the claim is to be considered further."

A similar differentiation between married,

unmarried, divorced daughter in Memorandum No-

251-Emp dated December 03, 2013 was also noticed

by the Hon'ble three Judges Bench. The relevant

portion is quoted below:-

"54. This was followed by notification no. 251- Emp dated December 3, 2013 issued by the Labour Department, Government of West Bengal. A scheme titled the West Bengal Scheme for Compassionate Appointment, 2013 (hereafter the SCHEME) was introduced thereby, in supersession of all previous orders in respect of compassionate appointment. Paragraph 2 of the SCHEME made it applicable to a dependant family member of a government employee who (a) dies while in service; or (b) is disabled permanently or otherwise incapacitated rendering him unfit to continue in service prematurely on being declared permanently incapacitated by a Medical Board formed by the Government. Dependent family members and Government employee were defined in paragraph 3 to mean:

"(a) spouse; or

(b) son (including legally adopted son before death or incapacitation); or

(c) unmarried daughter (including legally adopted unmarried daughter before death or incapacitation); or

(d) married daughter who on date of death or incapacitation was unmarried; or

(e) brother or sister in case of death-in-harness of an unmarried employee provided his/her parent, all the brothers and sisters were fully dependent on him/her, who was wholly dependent on the Government employee at the time of his death-in-harness or incapacitation, as the case may be, and is in need of immediate financial assistance at the time of making application and also at the time of consideration.

(f) 'Government employee' for the purpose of this scheme means a Government employee appointed on regular basis and not the one working on daily wage or casual or apprentice or ad-hoc or contract or re- employment basis." (bold in original)"

The rejection of the petitioner's case in terms of

clause (d) above and after the Three Judge Bench

had decided the issue. The amendment of the

memorandum 251 Emp took place shortly thereafter.

By the memorandum dated November 4, 2022 the

expression "married" was deleted.

Law is well settled that similarly situated

persons should be treated similarly, even if they do

not approach the Writ Court for similar benefits.

The Court feels that justice would be sub-

served if the matter is revisited by the competent

authority on the basis of the observations made