Abhilasha Vishwakarma vs The State Of Madhya Pradesh
2021 Latest Caselaw 5737 MP

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               The High Court Of Madhya Pradesh

                             WP-18211-2021
    (ABHILASHA VISHWAKARMA Vs THE STATE OF MADHYA PRADESH AND OTHERS)



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Jabalpur, Dated : 21-09-2021
Heard through Video Conferencing.

           None for the petitioner.

         Shri Sanjeev          Kumar       Singh,     learned   PL    for   the
respondent/State.

The petitioner has filed this writ petition challenging the order Annexure-P-6 and P-7 whereby the application has been filed by the petitioner seeking compassionate in lieu of death of her father has been rejected on the ground that as the petitioner is a married women and there is no provision in the policy for grant of compassionate appointment to a married women, therefore, applications were rejected by the authorities.

It is pointed out that the controversy has been put to rest by the Larger Bench of this Court in W.A No.756/2019 order dated 02/03/2020 in the case of Meenakshi Dubey Vs. M.P Poorva Kshetra Vidyut Vitran Co. Ltd and others, were in considering the similar issue, the larger bench is held as under:

9. The policy of compassionate appointment of different State Governments became subject matter of challenge before the High Courts and similar clauses which excludes the right of consideration of a married daughter were taken note of and interfered with by the High Courts on the anvil of Article 14 and 15 of the Constitution. It is profitable to refer to certain judgments. This Court in 2019 (2) MPLJ 707 (Bhawna Chourasia vs. State of M.P.) held as under:

"15. This is a matter of common knowledge that in present days there are sizable number of families having single child. In many families, there are no male child. The daughter takes care of parents even after her marriage. The parents rely on their daughters heavily. Cases are not unknown where sons have failed to discharge their obligation

of taking care of parents and it is taken care of and obligation is sincerely discharged by married daughters. Thus, it will be travesty of justice if married daughters are deprived from right of consideration for compassionate appointment."

(Emphasis supplied)

The Chattisgarh High Court in WP(S) No.296/2014 (Sarojni Bhoi vs. State of Chattisgarh and others) opined that criteria to grant compassionate appointment should be dependency rather than marriage. A daughter even after marriage remains daughter of her father and she could not be treated as not belonging to her father's family. Institution of marriage was basic civil right of man and woman and marriage by itself was not a disqualification. Resultantly, the impugned policy of Government prohibiting consideration of married daughter from compassionate appointment was held to be violative of Article 14 of the Constitution. The Chattisgarh High Court considered its previous Division Bench judgment in the case of Bailadila Berozgar Sangh vs. National Mineral Corporation Ltd. wherein it was held that:

"....It is not disputed that the Corporation is an instrumentality of the State and comes within the definition of the State under Article 12 of the Constitution and that the equality provisions in Articles 14 and 16 of the Constitution apply to employment under the Corporation. Therefore, a woman citizen cannot be made ineligible for any employment under the Corporation on the ground of sex only but could be excluded from a particular employment under the Corporation if there are other compelling grounds for doing so."

(Emphasis supplied)

10. Similarly, the question "Whether the policy decision of the State Government to exclude from the zone of compassionate appointment a daughter of an employee, dying-in-harness or suffering permanent incapacitation, who is married on the date of death/permanent incapacitation of the employee although she is solely dependent on the earnings of such employee, is constitutionally valid ?" came up for consideration before a Larger Bench of High Court of Calcutta in State of W.B. and others vs. Purnima Das and others (2018 Lab IC 1522). The relevant Clause 2(2) of the policy which was subject matter of examination was :

"2(2) For the purpose of appointment on compassionate ground a dependent of a government employee shall mean wife/ husband/son/unmarried daughter of the

employee who is/was solely dependent on the government employee."

The ancillary question cropped up before the Larger Bench was whether the classification created by Government by depriving the married daughter from right of consideration for compassionate appointment is a valid classification. Deepankar Datta, J' speaking for the Bench opined as under:

".....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."

(Emphasis supplied)

In no uncertain terms, it was held that it is the dependency factor that would merit consideration and not the marital status of the applicant.

The Calcutta High Court considered its previous judgment in the case of Smt. Usha Singh vs. State of W.B., 2003 (2) WBLR (Cal) 94 wherein it was opined as under:

"...... Why should then a distinction be made between a son and a married daughter? An unemployed married son according to the rules is eligible but an unemployed married daughter is ineligible irrespective of the fact that they are or may be similarly placed and equally distressed financially by the death of the father. Take the case of a teacher who died-in- harness leaving him surviving his illiterate widow, an unqualified married son and a qualified married daughter who were all dependent on the income of the deceased. Following the rule as it is interpreted by the Council and its learned Advocate, this family cannot be helped. Is this the intended result of the rule? Or does this interpretation advance the object of the rule? What is the basis for the qualification which debars the married daughter? and what is the nexus between the qualification and the object sought to be

achieved? In my view, there is none. If any one suggests that a son married or unmarried would look after the parent and his brothers and sisters and that a married sister would not do as much, my answer will be that experience has been otherwise. Not only that the experience has been otherwise but also judicial notice has been taken thereof by a Court no less than the Apex Court in the case of Savita v. Union of India reported in (1996) 2 SCC 380 wherein Their Lordships quoted with approval a common saying: 'A son is a son until he gets a wife. A daughter is a daughter throughout her life'."

(Emphasis supplied)

Consequently, the Larger Bench answered the question as under:

"111. Our answer to the question formulated in paragraph 6 supra is that complete exclusion of married daughters like Purnima, Arpita and Kakali from the purview of compassionate appointment, meaning thereby that they are not covered by the definition of 'dependent' and ineligible to even apply, is not constitutionally valid.

112. 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."

(Emphasis supplied)

The judgment of Purnima Das etc.(Supra) was unsuccessfully challenged by the State of West Bengal before the Supreme Court in SLP(C) No.17638-17639 of 2018 which were dismissed on 23.07.2019.

The similar question came up for consideration before a Larger Bench of High Court of Uttarakhand in the case of Udham Singh Nagar District Cooperative Bank Ltd. And another vs. Anjula Singh and others, AIR 2019 Utr 69. The relevant question posed before the Larger Bench reads as under:

"(ii) Whether non-inclusion of a "married

daughter" in the definition of "family", under Rule 2(c) of the 1974 Rules, and in the note below Regulation 104 of the 1975 Regulations, is discriminatory, and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India ?"

(Emphasis supplied)

The answer reads thus:

"(ii) Question No.2 should also be answered in the affirmative. 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."

15. The Apex Court in Dr. (Mrs.) Vijaya Manohar Arbat v.

Kashirao Rajaram Sawai, (1987) 2 SCC 278 opined that a daughter after her marriage does not cease to be a daughter of her father or mother and observed as under:

"12. We are unable to accept the contention of the appellant that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves. It has been rightly pointed out by the High Court that a daughter after her marriage does not cease to be a daughter of the father or mother. It has been earlier noticed that it is the moral obligation of the children to maintain their parents. In case the contention of the appellant that the daughter has no liability whatsoever to maintain her parents is accepted, parents having no son but only daughters and unable to maintain themselves, would go destitute, if the daughters even though they have sufficient means refuse to maintain their parents.

13. After giving our best consideration to the question, we are of the view that Section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself."

(Emphasis supplied)

22. In nutshell, broadly, we are in agreement with the conclusion drawn by Indore Bench in Smt. Meenakshi(Supra) and deem it proper to answer the reference as under:

"Clause 2.2 of the policy dated 29.09.2014 is violative of Articles 14, 15, 16 and 39(a) of the Constitution of India to the extent it deprives the married daughter from right of consideration for compassionate appointment. We find no reason to declare Clause 2.4 of the policy as ultra vires. To this extent, we overrule the judgment of Indore Bench in the case of Meenakshi(Supra)

It is argued that the orders passed by the authorities are contrary to the judgment passed by the Larger Bench of this court, therefore, prayer is made to quash the order AnnexureP-6 and P-7 passed by the authority whereby her applications has been rejected and the authority be directed to reconsider the application in the light of the judgment passed by the Larger Bench of this court.

Counsel appearing for the State could not dispute the factum of the controversy resolved by the large bench and fairly submitted that the matter may be relegated back to the authorities for reconsideration in the light of the judgment passed in W.A No.756/2019. Prayer appears to be reasonable.

In view of the judgment passed by the larger bench of this Court in W.A No.756/2019 in the case of Meenakshi Dubey Vs. M.P Poorva Kshetra Vidyut Vitran Co. Ltd and others, the order impugned (Annexure-P-6 and P-7) are unsustainable and is hereby quashed.

The matter relegated back to the authorities for reconsideration in lieu of the judgment passed in the case of Meenakshi Dubey (supra) regarding grant of compassionate appointment to the petitioner.

Considering the allover the facts and circumstances of the case, the matter is no more res-integra and have been settled in the case of Meenakshi Dubey (Supra), this court deems it appropriate to dispose of the writ petition with the direction to the petitioner to file a fresh representation along with copy of this order within seven days

from today to the respondent no.2 and in case if such representation is filed, the respondent no.2 is directed to consider and decide the same in accordance with the policy prevailing an applicable to the case of the petitioner and also considering the case of Meenakshi Dubey Vs. M.P Poorva Kshetra Vidyut Vitran Co. Ltd and others in W.A No.756/2019 order dated 02/03/2020. The exercise be completed within a period of two months from the date of receipt of certified copy of the order.

Needless to say that this court has not expressed any opinion on merits of the case.

With the aforesaid observations, this petition is disposed of.

C.C. as per rules.

(VISHAL MISHRA) JUDGE IRFAN Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.09.24 16:01:24 +05'30'