Orissa High Court
Bhanuprava Garnaik vs State Of Odisha on 2 December, 2022
HIGH COURT OF ORISSA : CUTTACK.
WPC (OAC) No. 4231 of 2016
(In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950)
***
BHANUPRAVA GARNAIK Petitioner
DAUGHTER OF Mr.Chhabilendu
LATE KHITISH CHANDRA Mohanty
GARNAIK AND proxy counsel
WIFE OF PABAN MAJHI on behalf of Mr. Debi
OF VILLAGE: BARASAHI
Prasad Dhalsamanta,
Advocate for
P.S.: CHHENDIPADA
the Petitioner
DISTRICT: ANGUL ...
VERSUS
STATE OF ODISHA
REPRESENTED THROUGH
SECRETARY
DEPARTMENT OF Opposite parties
ANIMAL HUSBANDRY Mr. Manoj Kumar
ODISHA - 751 001 Khuntia, Additional
& OTHERS Government Advocate
... for opposite parties
Date of Hearing: 25.11.2022 :: Date of Judgment: 02.12.2022
CORAM:
MR. JUSTICE MURAHARI SRI RAMAN
P.T.O.
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J UDG ME NT
Murahari Sri Raman.--
1. Aggrieved by the return of the proposal of the Chief District
Veterinary Officer, Angul-opposite party No.4 for consideration
of appointment of Smt. Bhanuprava Garnaik-petitioner under the
Odisha Civil Service (Rehabilitation Assistance) Rules, 1990,
(hereinafter referred to as "RA Rules") by the Additional District
Magistrate, Angul-opposite party No.3 vide Letter dated
18.03.2016 (Annexure-4), the petitioner has approached the
Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way
of Original Application filed under Section 19 of the
Administrative Tribunals Act, 1985, wherein following relief(s) is
prayed for:
"7.1 That the order dated 18.03.2016 (Annexure-4) be quashed.
7.2. That direction be issued to the respondents particularly
respondent No.4 to provide an appointment under
rehabilitation assistance scheme to the applicant No.2
7.3. And further be pleased to pass any order/order(s) as
deemed fit and proper to give complete relief to the
applicant.
***"
1.1. Since both the mother-Sulochana Garnaik and the daughter-
Bhanuprava Garnaik filed the Original Application, realizing that
Bhanuprava Garnaik applied for consideration of appointment on
compassionate ground under the RA Rules, the learned counsel
prayed before the Odisha Administrative Tribunal for deletion of
the name of Sulochana Garnaik. Accordingly, the learned Odisha
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Administrative Tribunal passed the following Order on
16.06.2016:
"*** Learned counsel for the applicant submitted that as the
application filed by Applicant No.2 for appointment under the
OCS (Rehabilitation Assistance) Rules, 1990 was rejected, she has
approached this Tribunal. Hence the OA be confined to Applicant
No.2 only and the name of Applicant No.1 be deleted.
In view of such submission, name of Applicant No.1 is deleted and
the OA is confined to Applicant No.2 only as the sole Applicant.
Provisional petition is disposed of and the case be registered as
OA.
Issue notice on admission.
Counter be filed within four weeks and rejoinder, if any, be filed
within two weeks thereafter.
List this matter after six weeks."
1.2. After the abolition of the Odisha Administrative Tribunal vide
Notification F.No.A-11014/1-/2015-AT [GSR 552(E)], dated
02.08.2019, issued by the Central Government in Ministry of
Personnel, Public Grievances and Pensions (Department of
Personnel and Training), the Original Application, as transferred
to this Court, is converted to writ petition and renumbered as
WPC (OAC) No.4231 of 2016.
1.3. Though six years have been elapsed from the date of aforesaid
order of the learned Tribunal, no counter is forthcoming from the
opposite parties. Since this matter is of the year 2016 and relates
to consideration of application for appointment under the RA
Rules, this matter is taken up for hearing and final disposal based
on the material available on record on the consent of the counsel
for the respective parties.
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The Writ Petition being WPC (OAC) No.4231 of 2016:
2. It is the case of the petitioner(s) that Khitish Chandra Garnaik,
while working as Veterinary Attendant under the opposite party
No.4 died in a road accident on 09.03.2015 and left behind wife
and two daughters. Since he was the sole bread earner for the
family, his wife-Sulochana Garnaik applied for an appointment
under the RA Rules. She was directed to appear before the
Medical Board on 15.12.2015. The District Medical Board
examined her and opined that she was in bad state of health and
found to be medically unfit for undertaking service. Therefore, the
elder daughter, namely Bhanuprava Garnaik applied for
consideration of her appointment under the provisions of the RA
Rules after taking consent from the other daughter namely
Rudrani Garnaik.
2.1. Though the opposite party No.4-the Chief District Veterinary
Officer, Angul sent proposal for appointment of the petitioner-
Bhanuprava Garnaik, the opposite party No.3-the Additional
District Magistrate, Angul turned down such proposal on the plea
that the petitioner, being married daughter of Khitish Chandra
Garnaik does not come within the fold of the persons enumerated
in the definition of the term "family members" of the deceased
employee as per Rule 2(b) of the RA Rules and stated that "it is
not possible to go ahead with this R.A. application".
2.2. This action of the opposite party No.3 has brought the petitioner to
knock the doors of this Court by way of present petition.
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Arguments of the counsel for the petitioner:
3. The opposite party No.3 ought to have followed the procedure
prescribed instead of refusing to accede to the proposal of the
opposite party No.4. At the relevant point of time, the procedure
for "mode of appointment" stood thus:
"8. Mode of appointment.--
(1) (a) Application for an appointment shall be made in
Form A to these rules to the appointing authority
under whom the deceased Government servant last
worked, by registered post with A. D.
(b) On receipt of the application the appointing authority
shall send a requisition to the Collector of the district
in which the family ordinarily resides calling for a
report as to whether the family is in financially
distress.
(c) On receipt of a requisition from the appointing
authority under Rule 8(b) the Collector of the district
concerned shall cause an enquiry into the matter and
furnish his report to the appointing authority within
one month from the date of receipt of the requisition.
(d) The appointing authority, upon receipt of the report,
shall consider the same and in case of favourable
report, appoint the applicant in a suitable available
vacancy under his control. If a vacancy does not exist
under his administrative control, the appointing
authority may forward the application to the Head of
the Department with suitable recommendations. The
Head of the Department shall locate vacancies in
other offices under his administrative control and
direct Head of the Office where there is a vacancy to
appoint the applicant. If no vacancy is immediately
available the application shall be considered for the
immediate subsequent vacancy. In cases arising in
offices of Heads of Departments, the Head of the
Department shall appoint the candidate in his office
or in the offices subordinate thereto.
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(e) In the case, of the Departments in the Secretariat or
the attached Offices the appointing authority, on
receipt of application shall refer the case to the
concerned Collector for enquiry and report as
specified in Clauses (b) & (c) above and on receipt of
the report of the Collector under Clause (i) of sub-
rule (1) shall follow the procedure as specified
hereunder, namely:--
(i) The concerned Department may appoint the
candidate against any post available under its
control in the Department not being one in
common cadre of the Secretariat.
(ii) In case of non-availability of suitable post, the
Department may direct the Heads of
Departments under its control to appoint the
candidate against any suitable post under their
control.
(iii) If it is proposed to appoint the candidate
against a post in any common cadre of the
Secretariat administered by the Home
Department, the Administrative Department
may forward the application with suitable
recommendations to the Home Department
who shall take steps to appoint the candidate
against a suitable post in the common cadre.
(2) Notwithstanding anything contained in Clause (b) of sub-
rule (1) if the report of the Collector cannot be received
within one month from the date of reference, the appointing
authority may appoint the applicant subject to the condition
that in case of adverse report made by the Collector, his
services will be terminated without assigning any reason
thereof."
3.1. Without conducting any enquiry as envisaged under the aforesaid
rule, the opposite party No.3 erred in holding that the petitioner-
Bhanuprava Garnaik, being married daughter of Khitish Chandra
Garnaik, who died in harness, does not come within the fold of the
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term "family members" and as such, she is not eligible for being
considered for appointment under the RA Rules.
Arguments of the counsel for the opposite parties:
4. Mr. Manoj Kumar Khuntia, learned Additional Government
Advocate submitted that in view of Rule 3 of the RA Rules, the
assistance is applicable to a "member of the family" of the
Government servant who died while in service. In the instant case,
the opposite party No.3 is right in refusing to accord approval to
the proposal of the opposite party No.4. It is further ground of
objection raised by learned Additional Government Advocate that
the case of the petitioner does not deserve consideration at this
distance of time, i.e., almost seven years after the death of Khitish
Chandra Garnaik. It is mentioned with a remark of presumption
that Sulochana Garnaik has been receiving pension. Under such
premises, even though no counter has been filed, Mr. Khuntia
insisted for dismissal of writ petition.
Question for consideration:
5. Whether Bhanuprava Garnaik, married daughter of Khitish
Chandra Garnaik, who died while in Government service, is
entitled to be considered for appointment having made application
under the Odisha Civil Service (Rehabilitation Assistance) Rules,
1990?
Analysis and decision in present Writ Petition:
6. Before proceeding to delve into merit of the matter, it is apt to
notice concepts devised by different Courts in the context of
compassionate appointment.
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6.1. Following is the observation of the Supreme Court in the case of
Balbir Kaur Vrs. Steel Authority of India Ltd., AIR 2000 SC 1596
= (2000) 6 SCC 493:
"*** The sudden jerk in the family by reason of the death of the
bread earner can only be absorbed by some lump-sum amount
being made available to the family-- this is rather unfortunate but
this is a reality. The feeling of security drops to zero on the death
of the bread earner and insecurity thereafter reigns and it is at
that juncture if some lump-sum amount is made available with a
compassionate appointment, the grief-stricken family may find
some solace to the mental agony and manage its affairs in the
normal course of events. It is not that monetary benefit would be
the replacement of the bread earner, but that would undoubtedly
bring some solace to the situation.***"
6.2. Reference may be made to the Judgment of the Hon'ble Supreme
Court in the case of Umesh Kumar Nagpal Vrs. State of Haryana
and others, reported in (1994) 4 SCC 138, wherein it has been
observed as follows:
"As a rule, appointments in the public services should be made
strictly on the basis of open invitation of applications and merit.
No other mode of appointment nor any other consideration is
Neither the Governments nor the public authorities are at liberty
to follow any other procedure or relax the qualifications laid
down by the rules for the post. However, to this general rule
which is to be followed strictly in every case, there are some
exceptions carved out in the interests of justice and to meet
certain contingencies. One such exception is in favour of the
dependents of an employee dying in harness and leaving his
family in penury and without any means of livelihood. In such
cases, out of pure humanitarian consideration taking into
consideration the fact that unless some source of livelihood is
provided, the family would not be able to make both ends meet, a
provision is made in the rules to provide gainful employment to
one of the dependents of the deceased who may be eligible for
such employment. The whole object of granting compassionate
employment is thus to enable the family to tide over the sudden
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crisis. The object is not to give a member of such family a post
much less a post for post held by the deceased. What is further,
mere death of an employee in harness does not entitle his family to
such source of livelihood. The Government or the public authority
concerned has to examine the financial condition of the family of
the deceased, and it is only if it is satisfied, that but for the
provision of employment, the family will not be able to meet the
crisis that a job is to be offered to the eligible member of the
family."
6.3. In the case of General Manager (D&PB) and Others Vrs. Kunti
Tiwary and Another, (2004) 7 SCC 271 the Hon'ble Supreme
Court was pleased to hold that criteria of "penury" is to be applied
only by judging the condition of the petitioner-applicant, who is
without any means of livelihood, and living hand to mouth so that
compassionate appointment is required to be accorded.
6.4. In Union of India and Another Vrs. Shashank Goswami and
Another, reported in (2012) 11 SCC 307 following is the
observation at paragraph 9:
"9. There can be no quarrel to the settled legal proposition that
the claim for appointment on compassionate ground is
based on the premises that the applicant was dependent on
the deceased employee. Strictly, such a claim cannot be
upheld on the touchstone of Article 14 or 16 of the
Constitution of India. However, such claim is considered as
reasonable and permissible on the basis of sudden crisis
occurring in the family of such employee who has served
the State and dies while in service. Appointment on
compassionate ground cannot be claimed as a matter of
right."
6.5. Under such background when the present case is analysed, it is
seen from the legal heir certificate issued by the Revenue Officer
in the Office of Tahasildar, Chhendipada under the Odisha
Miscellaneous Certificates Rules, 1984, that Khitish Chandra
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Garnaik has left behind wife, Sulochana Garnaik, and two married
daughters. Copy of Medical Certificate indicates that Sulochana
Garnaik suffers from ailment which disqualified her to take up
Government service. Except two married daughters no other
member enumerated under Rule 2(b) of the RA Rules is available
in the family of Sulochana Garnaik.
6.6. At this juncture, it is noteworthy to refer to relevant provisions
contained in the RA Rules.
"2. Definitions.--
In these rules, unless the context otherwise requires--
(a) 'Deserving Case' means a case where the appointing
authority is satisfied, after making such enquiry as
may be necessary:
(i) that the death of the employee has adversely
affected his family financially because the
family has no other alternative mode of
livelihood;
(ii) that there is existence of distress condition in
the family after death of the employee;
(iii) that none of the family members of the
employee who has died while in service is
already in the employment of
Government/Public or Private Sector or
engaged in independent business with an
earning above Rs. 20,000 (Rupees twenty
thousand) a year; and
(iv) that the family does not have adequate income
from the immovable properties to earn its
livelihood.
Explanation.--
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The income of any earning member will be taken into
account for the purpose of assessing the annual gross
income of the family if his separation from the family
has not been established by registered partition deed
made prior to the death of the Government employee.
(b) 'Family Members' shall mean and include the
following members in order of preference--
(i) Wife/Husband;
(ii) Sons or step sons or sons legally adopted
through a registered deed;
(iii) Unmarried daughters and unmarried step
daughter;
(v) Widowed daughter or daughter-in-law residing
permanently with the affected family;
(vi) Unmarried or widowed sister permanently
residing with the affected family;
(vii) Brother of unmarried Government servant who
was wholly dependent on such Government
servant at the time of death.
(e) 'Rehabilitation Assistance' means the assistance
provided under these rules to a member of the family
of Government servant who died while in service.
3. Applicability.--
The assistance shall be applicable to a member of the
family of the Government servant who dies while in
service."
9. Condition of service.--
(6) Application for appointment under these rules shall be
considered if it is received within one year from the date of
death of the Government servant."
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6.7. It is strongly objected by the learned Additional Government
Advocate that since "married daughter" is not comprehended in
the definition of the term "family members" as envisaged under
Clause (b) of Rule 2 of the RA Rules, the rejection of application
of the petitioner, the daughter of Khitish Chandra Garnaik, is
justified. It is submitted by the learned counsel for the opposite
parties that notwithstanding omission of the term "deserving
cases" by way of amendment to clause (a) of Rule 2 as brought
into the RA Rules by virtue of the Odisha Civil Service
(Rehabilitation Assistance) Amendment Rules, 2016, the same
can be taken into consideration for the purpose of understanding
the law. However, the State Government having obliterated the
mischief, there is little scope for the opposite parties to object to
effectuate benevolence.
6.8. This Court is brought to the notice that clause (a) of Rule 2 of the
RA Rules, 1990 has been omitted by virtue of the Odisha Civil
Services (Rehabilitation Assistance) Amendment Rules, 2016
(published in the Extraordinary issue of the Odisha Gazette
bearing No.1995, dated 07.11.2016). Rules 1(2) and 2 of said
amendment rules lay down as follows:
"1. Short title and commencement.--
(1) ***
(2) They shall come into force on the date of their
publication in the Odisha Gazette.
2. In the Odisha Civil Services (Rehabilitation Assistance)
Rules, 1990 (hereinafter referred to as the said rules), in
rule 2, clause (a) and Explanation thereof shall be
omitted."
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6.9. Though the term "deserving cases" has been omitted with effect
from 07.11.2016, the words "family members" in clause (b) of
Rule 2 has not been amended.
6.10. Reading of aforesaid provisions makes it clear that the term
"married daughter" does not find place in Section 2(b) of the RA
Rules, as such in view of provisions contained in Rule 3 ibid. is
not applicable to "married daughter". Notwithstanding such a
provision, exception has been carved out in the said Rules itself.
Rules 15 and 16 of said Rules are noteworthy of reference. Rules
15 and 16 stand thus:
"Overriding Effect.--
15. The provision of these rules shall have effect
notwithstanding anything to the contrary in any other
recruitment rules made under the proviso to Article 309 of
the Constitution including the Orissa ex-Service men
(Recruitment to the State Civil Services and Posts) Rules,
1985.
16. (1) The State Government where satisfied that the
operation of all or any provisions of these rules
causes undue hardship in any particular case, it may
dispense with or relax the provisions to such extent
as it may consider necessary for dealing with the
case in a just and equitable manner.
(2) Such cases shall be examined in General
Administration Department and orders of Chief
Minister shall be obtained."
6.11. Aforesaid provisions clearly indicate that the provisions of RA
Rules have overriding effect and in cases of "undue hardship" "in
any particular case" the effect of the provision can be dispensed
with or relaxed and such fact can be examined in the General
:: 14 ::
Administration Department. The compassionate appointment is an
exception to the general rule of appointment to public office. As a
general rule appointment to public office is to be made strictly in
accordance with mandatory requirement of Articles 14 and 16 of
the Constitution of India. The object of compassionate
appointment is to remove the financial constraints of the bereaved
family on loosing the bread earner and to enable the family of the
deceased employee to tide over the sudden crisis. It has been laid
down by the Hon'ble Supreme Court in State of Maharashtra Vrs.
Ms. Madhuri Maruti Vidhate (since after marriage Smt. Madhuri
Santosh Koli), 2022 LiveLaw (SC) 820 = 2022 SCC OnLine SC
1327 as follows:
"6. As per the law laid down by this Court in catena of
decisions on the appointment on compassionate ground, for
all the government vacancies equal opportunity should be
provided to all aspirants as mandated under Articles 14 and
16 of the Constitution. However, appointment on
compassionate ground offered to a dependent of a deceased
employee is an exception to the said norms. The
compassionate ground is a concession and not a right.
7. Thus, as per the law laid down by this Court in the
aforesaid decisions, compassionate appointment is an
exception to the general rule of appointment in the public
services and is in favour of the dependents of a deceased
dying in harness and leaving his family in penury and
without any means of livelihood, and in such cases, out of
pure humanitarian consideration taking into consideration
the fact that unless some source of livelihood is provided,
the family would not be able to make both ends meet, a
provision is made in the rules to provide gainful
employment to one of the dependents of the deceased who
may be eligible for such employment. The whole object of
granting compassionate employment is, thus, to enable the
family to tide over the sudden crisis. The object is not to
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give such family a post much less a post held by the
deceased."
6.12. In the present case, it is culled out that Sulochana Garnaik, wife of
the deceased Government employee, was found unfit for
undertaking Government service as per the Medical Certificate
enclosed to the writ petition which is not disputed by the opposite
parties. Furthermore, from the Legal Heir Certificate issued under
the provisions of the Odisha Miscellaneous Certificates Rules,
1984 by the Revenue Officer in the Office of Tahasildar,
Chhendipada shows that no other person in her family is available
who falls within the meaning of "family members" as per Section
2(b) of the RA Rules. Therefore, in order to save the family from
the distress condition, relaxation provisions could have been
invoked by the opposite party No.3-Additional District
Magistrate, Angul.
6.13. This Court taking note of Rule 16 of the RA Rules, 1990, in the
case of Chakradhar Das Vrs. Orissa Bridge and Construction
Corporation Limited, 1996 LabIC 1621 held that even though
"son-in-law" is not placed within the definition of "family
members" under Rule 2(b) of the RA Rules, he is entitled to be
considered for compassionate appointment. This Court held that
son-in-law, though does not come within the meaning of 'family
members' can be considered by relaxing Rule 16(1) of the Orissa
Civil Services (Rehabilitation Assistance) Rules, 1990 as a
deserving case. This Court, accordingly, directed the concerned
department to consider if on the facts and circumstances of that
case relaxation as provided under Rule 16(1) could be done. In yet
another case being Smt. Ketaki Manjari Sahu Vrs. State of Orissa,
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1998 (II) OLR 452, this Court directed the State Government to
consider if on the ground of hardship, prayer of a married
daughter can be considered in view of Rule 16 of the Odisha Civil
Service (Rehabilitation Assistance) Rules, 1990, which provides
that the State Government may consider the applicability of the
Rule considering the undue hardship suffered by the applicant.
This Court reiterated in the case of Prem Sagar Naik Vrs. State of
Odisha & Ors., W.P.(C) No. 18981 of 2016, vide Judgment dated
21.08.2017 that Rule 16 of the RA Rules provides that the State
Government where satisfied that the operation of all or any
provisions of these rules causes undue hardship in any particular
case, it may dispense with or relax the provisions to such extent as
it may consider necessary for dealing with the case in a just and
equitable manner.
6.14. This Court had many occasions to deal with cases of persons who
did not fall within the category of enumerated persons contained
in the definition of the term "family members" in Rule 2(b).
6.15. In Basanti Nayak Vrs. State of Odisha & Ors., WPC (OAC) 2669
of 2008, vide Order dated 27.10.2022, this Court observed as
follows:
"11. In the case of C.B. Muthamma Vrs. Union of India, (1979) 4
SCC 260, the Supreme Court in the context of Indian
Foreign Service (Conduct and Discipline), Rules, 1961,
which prohibits appointment of married woman to such
service, held in paragraphs-6 and 7 as follows:
"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
:: 17 ::
the weaker sex forgetting how our struggle for national
freedom was also a battle against woman's thralldom.
Freedom is indivisible, so is justice. That our founding faith
enshrined in Articles 14 and 16 should have been tragically
ignored vis-à-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
diehard allergy to gender parity is inevitable.
We do not mean to universalize 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."
Similar view has also been taken by the Bombay High Court
in Ranjana Murlidhar Anerao v.State of Maharashtra,
(2014) 5 Mah LJ 543.
12. In the case of Kshirabadi Bala Behera Vrs. Orissa
Administrative Tribunal, W.P(C) No. 14945 of 2015
[Judgment of Division Bench on 24.08.2022], this Court
observed that:
"The Apex Court in number of cases repeatedly emphasized
the need of compassionate appointment to the dependent of
the deceased Government servant without any loss of time.
The whole object of granting compassionate appointment to
enable the dependent(s) of deceased's family to earn bread
and butter for the family and to come out from financial
crisis, who suffers on account of unexpected and untimely
death of deceased/Government servant therefore, the
criteria to grant compassionate appointment should be
'dependency' rather than 'marriage'. In a given case, a
'married' daughter might be deserted wife, might have been
abandoned wife, fully dependent upon her father, she might
have been married to an indigent husband so that both the
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married daughter and son-in-law could have been
dependent of the bread winner whose death left them to
extreme financial hardship. There might be many other
probabilities in which married daughter might be fully
dependent upon the income of her father so that the death of
the father to leave her and rest of the family members in
extreme financial hardship. Therefore, the yardstick for
extending the benefit of compassionate appointment should
be dependency of the dependents on the deceased
Government Servant and their marital status of dependent
should not be impediment for his/her consideration on
compassionate ground to wipeout leaves from the eyes of
the suffering family on account of loss of earning member in
the family. A daughter after her marriage doesn't cease to
be daughter of the father or mother and obliged to maintain
their parents and daughter cannot be allowed to escape its
responsibility on the ground that she is now married,
therefore, such a policy of the State Government
disqualifying, a 'married' daughter and excluding her from
consideration apart from being arbitrary and
discriminating is retrograde step of State Government as
welfare State, on which stamp of approval cannot be made
by this Court."
13. As a fallout and consequence of aforesaid discussions, the
order dated 08.04.2008 passed by the Inspector of Schools
cannot be sustained in the eye of the law and the same is
liable to be quashed. As a consequence, thereof, refusal to
grant benefit to the 'married' daughter for consideration of
compassionate appointment is hereby declared void and
inoperative. Hence, the order impugned passed by the
authority in rejecting the petitioner's case for
compassionate appointment is hereby quashed."
6.16. The High Court of Madhya Pradesh [3-Judge Bench] in the case
of Meenakshi Dubey Vrs. M.P. Poorva Kshetra Vidyut Vitran Co.
Ltd. & Ors., W.A. No.756 of 2019, vide Judgment dated
02.03.2020 [2020 SCC OnLine MP 383] discussed the issue of
non-inclusion of married daughter under the Rehabilitation
Scheme and observed as follows:
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"13. 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.'
14. 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 Vrs.
State of West Bengal, 2003 (2) WBLR (Cal) 94 = 2003 SCC
OnLine Cal 76 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 WA
No.756/2019 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
:: 20 ::
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 anyone 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 Vrs. 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'.'
15. 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
:: 21 ::
look after the other family members of the deceased,
if the claim is to be considered further.'
16. The Judgment of Purnima Das etc. (2017 SCC Online Cal
13121) 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
Vrs. 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 ?"
17. 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.'
18. It is noteworthy that similar view was taken by Karnataka
High Court in ILR 1992 Kar 3416 (R. Jayamma Vrs.
Karnataka Electricity Board). In the said case, it was held
as under:
'10. This discrimination, in refusing compassionate
appointment on the only ground that the woman is
married is violative of Constitutional Guarantees. It
is out of keeping with the trend of times when men
:: 22 ::
and women compete on equal terms in all areas. The
Electricity Board would do well to revise its
guidelines and remove such anachronisms.'
19. The Madras High Court in 2015 (3) LW 756 (R.
Govindammal Vrs. The Principal Secretary, Social Welfare
and Nutritious Meal Programme Department& others)
opined thus:
'14. Therefore, I am of the view that G.O.Ms. No. 560
dated 03.08.1977 depriving compassionate
appointment to married daughters, while married
sons are provided compassionate appointment, is
unconstitutional. In fact, the State can make law
providing certain benefits exclusively for women and
children as per Article 15(3) of the Constitution. But
the State cannot discriminate women in the matter of
compassionate appointment, on the ground of
marriage.'
20. In R. Govindammal (Supra), the Madras High Court took
note of a Judgment reported in 2013 (8) MLJ 684
(Krishnaveni Vrs. Kadamparai Electricity Generation
Block, Coimbator District) in which it was ruled that if
marriage is not a bar in the case of son, the same yardstick
shall be applied in the case of a daughter also.
21. The Bombay High Court in Sou. Swara Sachin Kulkrni Vrs.
Superintending Engineer, Pune Irrigation Project Circle,
2013 SCC OnLine Bom 1549 opined as under:
'3. .... Both are married. The wife of the deceased and
the mother of the daughters has nobody else to look
to for support, financially and otherwise in her old
age. In such circumstances, the stand of the State that
married daughter will not be eligible or cannot be
considered for compassionate appointment violates
the mandate of Article 14, 15 and 16 of the
Constitution of India. No discrimination can be made
in public employment on gender basis. If the object
sought can be achieved is assisting the family in
financial crisis by giving employment to one of the
dependents, then, undisputedly in this case the
:: 23 ::
daughter was dependent on the deceased and his
income till her marriage.'
22. It was further held as under:
'3. .... We do not see any rationale for this classification
and discrimination being made in matters of
compassionate appointment and particularly when
the employment is sought under the State.'
23. In a recent Judgment by High Court of Tripura in Debashri
Chakraborty Vrs. State of Tripura and others, 2020 (1) GLT
198, the court has taken note of various judgments of the
High Courts including the judgment of Allahabad High
Court in Vimla Shrivastava and others vs. State of UP and
others reported in MANU/UP/2275/2015 and judgment of
Karnataka High Court in Manjula Vrs. State of Karnataka,
2005 (104) FLR 271. After taking note of series of
judgments authored by different High Courts, the court
answered the question as under:
'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.
iii. We, however, read down the definition of 'family', in
Rule 2(c) of the 1974 Rules and the note below
Regulation 104 of the 1975 Regulations, to save it
from being held unconstitutional. As a result a
'married daughter' shall also be held to fall within
the inclusive definition of the 'family' of the deceased
Government servant, for the purpose of being
provided compassionate appointment under the 1974
Rules and the 1975 Regulations.'
:: 24 ::
24. The common string in the aforesaid judgments of various
High Courts is clear like a cloudless sky that the
action/clauses of the policy which deprives married
daughter from right of consideration for compassionate
appointment runs contrary to Articles 14, 15, 16 and 39(a)
of the Constitution. We concur with the above view taken by
various High Courts.
25. The Constitution Bench of Supreme Court in Budhan
Choudhry Vrs. State of Bihar, (1955) 1 SCR 1045 = AIR
1955 SC 191 made it clear that to pass a test of permissible
classification, two conditions must be fulfilled, namely, (i)
that the classification must be founded on an intelligible
differentia which distinguishes persons or things that are
grouped together from others left out of the group and (ii)
that differentia must have a rational relation to the object
sought to be achieved by the statute in question. In view of
this decision, Article 14 condemns discrimination not only
by a substantive law but also by a law of procedure. As
noticed, the various High Courts held that the classification
made by impugned clause amounts to an artificial
classification which divides a homogenous class and
creates a class within the class.
26. The Apex Court in Dr. (Mrs.) Vijaya Manohar Arbat Vrs.
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.
:: 25 ::
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.'
27. It is noteworthy that in the case of Vijaya Manohar, (1987)
2 SCC 278, the Apex Court was talking about 'moral
obligation' of children to maintain their parents. The
Parliament in its wisdom introduced The Maintenance and
Welfare of Parents and Senior Citizens Act, 2007. This Act
places equal duty on both, sons and daughters to take care
and maintain the parents. In view of this Act, the obligation
to take care of parents assumes more importance and it is
not only a 'moral duty', it became a 'statutory duty' of
children as well. This aspect was considered in
Krishnaveni's case (supra) wherein it was held as under:
'28. The case on hand is a classic case, wherein, the
deceased Government servant has no male issue.
Nowadays, it is a common thing that a family have a
single child; either male or female. Thus, if a
Government servant has only daughter, as in this
case, the widow of the Government servant cannot be
stated that her married daughter could not be
provided compassionate appointment, particularly,
when she has to solely rely on her daughter. As stated
above, Maintenance and Welfare of Parents and
Senior Citizens Act, also now places equal
responsibility on both the son and daughter to take
care of their parents.'
28. We are not oblivious of the settled legal position that
compassionate appointment is an exception to general rule.
As per the policy of compassionate appointment, State has
already decided to consider claims of the married
daughters (Clause 2.4) for compassionate appointment but
such consideration was confined to such daughters who
have no brothers. After the death of government servant, it
is open to the spouse to decide and opt whether his/her son
or daughter is best suited for compassionate appointment
and take responsibilities towards family which were being
discharged by the deceased government servant earlier.
:: 26 ::
29. The offending clause which restricts such consideration
only for such married daughter is subject matter of
consideration and examination. The Constitution Bench of
Supreme Court in Budhan Choudhry (Supra) held that
substantive law, procedural law or even an action can be
interfered with if it does not pass the "litmus test" laid down
in the said case. Hence, in a case of this nature,
adjudication is not required regarding creation of right of
married woman, indeed, judicial review is focused against
curtailment of claim of such married woman when deceased
government servant died leaving behind son/s.
30. The matter may be viewed from another angle. Human
rights and fundamental freedom have been reiterated by the
Universal Declaration of Human Rights. Democracy,
development and respect for human rights and fundamental
freedoms are interdependent and have mutual
reinforcement. All forms of discrimination on grounds of
gender is violative of fundamental freedoms and human
rights. Vienna Convention on the Elimination of all forms of
Discrimination Against Women (for short 'CEDAW') was
ratified by the UNO on 18.12.1979. The Government of
India who was an active participant to CEDAW ratified it
on 19.06.1993 and acceded to CEDAW on 08.08.1993 with
reservation on Articles 5(e), 16(1), 16(2) and 29 thereof.
The Preamble of CEDAW reiterates that discrimination
against women violates the principles of equality of rights
and respect for human dignity; is an obstacle to the
participation on equal terms with men in the political,
social, economic and cultural life of their country; hampers
the growth of the personality from society and family and
makes it more difficult for the full development of
potentialities of women in the service of their countries and
of humanity. Article 1 defines discrimination against women
to mean -
'any distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose on impairing or
nullifying the recognized enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of
men and women, all human rights and fundamental
:: 27 ::
freedoms in the political, economic, social, cultural, civil or
any other field.'
Article 2(b) makes it obligatory for the State parties while
condemning discrimination against women in all its forms,
to pursue, by appropriate means, without delay, elimination
of discrimination against women by adopting 'appropriate
legislative and other measures including sanctions where
appropriate, prohibiting all discriminations against women'
to take all appropriate measures including legislation, to
modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women.
Clause (C) enjoins to ensure legal protection of the rights of
women on equal basis with men through constituted
national tribunals and other public institutions against any
act of discrimination to provide effective protection to
women. Article 3 enjoins State parties that it shall take, in
all fields, in particular, in the political, social, economic
and cultural fields, all appropriate measures including
legislation to ensure full development and advancement of
women for the purpose of guaranteeing them the exercise
and enjoyment of human rights and fundamental freedoms
on the basis of equality with men. Article 13 states that -
'the State parties shall take all appropriate measures to
eliminate discrimination against women in other areas of
economic and social life in order to ensure, on a basis of
equality of men and women.'
Parliament has enacted the Protection of Human Rights
Act, 1993. Section 2(d) defines human rights to mean
'the rights relating to life, liberty, equality and dignity of
the individual guaranteed by the Constitution or embodied
in the International Covenants and enforceable by courts in
India.'
Thereby the principles embodied in CEDAW and the
concomitant Right to Development became integral parts of
the Indian Constitution and the Human Rights Act and
became enforceable. Section 12 of Protection of Human
Rights Act charges the Commission with duty for proper
implementation as well as prevention of violation of the
:: 28 ::
human rights and fundamental freedoms. Article 5(a) of
CEDAW on which the Government of India expressed
reservation does not stand in its way and in fact Article 2(f)
denudes its effect and enjoins to implement Article 2(f) read
with its obligation undertaken under Articles 3, 14 and 15
of the Convention vis-à-vis Articles 1, 3, 6 and 8 of the
Declaration of Right to Development. Though the directive
principles and fundamental rights provide the matrix for
development of human personality and elimination of
discrimination, these conventions add urgency and need for
immediate implementation. It is, therefore, imperative for
the State to eliminate obstacles, prohibit all gender-based
discriminations as mandated by Articles 14 and 15 of the
Constitution of India. By operation of Article 2(f) and other
related articles of CEDAW, the State should by appropriate
measures modify law/policy and abolish gender-based
discrimination in the existing laws, regulations, customs
and practices which constitute discrimination against
women.
31. In a recent judgment reported in 2020 SCC OnLine SC 200
(Secretary, Ministry of Defence Vrs. Babita Puniya and
others), the Apex Court opined that--
'67. The policy decision of the Union Government is a
recognition of the right of women officers to equality
of opportunity. One facet of that right is the principle
of nondiscrimination on the ground of sex which is
embodied in Article 15(1) of the Constitution. The
second facet of the right is equality of opportunity for
all citizens in matters of public employment under
Article 16(1).'
32. This recent judgment in Babita Puniya, (2020) 7 SCC 469 is
a very important step to ensure "Gender Justice". In view
of catena of judgments referred hereinabove, it can be
safely concluded that Clause 2.2 to the extent it deprives
married woman from right of consideration for
compassionate appointment violates equality clause and
cannot be countenanced. By introducing Clause 2.4, the
Government partially recognised the right of consideration
of married daughter but such consideration was confined to
such daughters who have no brothers. Clause 2.2, as
:: 29 ::
noticed, gives option to the living spouse of deceased
government servant to nominate son or unmarried
daughter. There is no condition imposed while considering
a son relating to marital status. Adjective/condition of
'unmarried' is affixed for the daughter. This condition is
without there being any justification and; therefore,
arbitrary and discriminatory in nature.
33. Looking from any angle, it is crystal clear that clause 2.2
which deprives the married daughter from right of
consideration cannot sustain judicial scrutiny. Thus, for
different reasons, we are inclined to hold that Indore Bench
has rightly interfered with Clause 2.2 of the said policy in
the case of Smt. Meenakshi (Supra).
34. 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).' "
6.17. The tenor and tone of Division Bench of this Court in the case of
Kshirabadi Bala Behera Vrs. Orissa Administrative Tribunal,
W.P.(C) No. 14945 of 2015, vide Judgment dated 24.08.2022, is
required to be reflected in the present context:
"16. In view of propositions of law, as laid down by the apex
Court, it is made clear that 'marriage' is an
institution/sacred union not only legally permissible but
also basic civil right of the man and woman and one of the
most important inevitable consequences of marriage is the
reciprocal support and the marriage is an institution has
great legal significance and right to marry is necessary
concomitant of right to life guaranteed under Article 21 of
:: 30 ::
the Constitution of India as right to life includes right to
lead a healthy life.
17. It is very often said that 'married' daughter has no
obligation to maintain her parents even if they are unable to
maintain themselves. In Dr. (Mrs.) Vijaya Manohar Arbat v.
Kashi Rao Rajaram Sawai, (1987) 2 SCC 278, the apex
Court held that a daughter after her marriage does not
cease to be a daughter of her father or mother, and
observed in paragraphs 12 and 13 as follows:
'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, in that case, 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. Section 488 of the old
Criminal Procedure Code did not contain a provision
like clause (d) Section 125(1). The legislature in
enacting Criminal Procedure Code, 1973 thought it
wise to provide for the maintenance of the parents of
a person when such parents are unable to maintain
themselves. The purpose of such enactment is to
enforce social obligation and we do not think why the
daughter should be excluded from such obligation to
maintain their (sic her) parents.'
:: 31 ::
18. The apex Court in number of cases repeatedly emphasized
the need of compassionate appointment to the dependent of
the deceased Government servant without any loss of time.
The whole object of granting compassionate appointment to
enable the dependent(s) of deceased's family to earn bread
and butter for the family and to come out from financial
crisis, who suffers on account of unexpected and untimely
death of deceased/Government servant therefore, the
criteria to grant compassionate appointment should be
'dependency' rather than 'marriage'. In a given case, a
'married' daughter might be deserted wife, might have been
abandoned wife, fully dependent upon her father, she might
have been married to an indigent husband so that both the
married daughter and son-in-law could have been
dependent of the bread winner whose death left them to
extreme financial hardship. There might be many other
probability in which married daughter might be fully
dependent upon the income of her father so that the death of
the father to leave her and rest of the family members in
extreme financial hardship, therefore, the yardstick for
extending the benefit of compassionate appointment should
be dependency of the dependents on the deceased
Government Servant and their marital status of dependent
should not be impediment for his/her consideration on
compassionate ground to wipe out leaves from the eyes of
the suffering family on account of loss of earning member in
the family.
19. A daughter after her marriage doesn't cease to be daughter
of the father or mother and obliged to maintain their
parents and daughter cannot be allowed to escape its
responsibility on the ground that she is now married,
therefore, such a policy of the State Government
disqualifying, a 'married' daughter and excluding her from
consideration apart from being arbitrary and
discriminating is retrograde step of State Government as
welfare State, on which stamp of approval cannot be made
by this Court.
20. Article 14 of the Constitution mandates that the State shall
not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Clauses
:: 32 ::
(1) and (2) of Article 15 of the Constitution prohibit the
State from discriminating any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
Article 16 of the Constitution which contains the
fundamental right of equality of opportunity in matters of
public employment, by sub-clauses (1) and (2) thereof
guarantees that:
'16. (1) There shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State.
16. (2) No citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or
discriminated against in respect of, any
employment or office under the State.'
21. Article 16(2) of the Constitution prohibits discrimination
only on sex but clause (3) of Article 15 enables the State to
make 'any special provision for women and children'.
Articles 15 and 16 of the Constitution read together
prohibit direct discrimination between members of different
sexes if they would have received the same treatment as
comparable to members of the opposite gender. The
constitutional mandate is infringed only where the females
would have received same treatment with males but for
their sex.
22. In Shreejith L. Vrs. Director of Education, Kerala, (2012) 7
SCC 248, the apex Court held that marriage by itself does
not disqualify the person concerned from seeking
employment.
23. In Secretary, Ministry of Defence (supra), the apex Court,
while considering gender equality/equality of opportunity in
case of claim for Permanent Commissions by women
officers engaged in Short Service Commissions officers in
Army, held that women officers who are granted Permanent
Commission are entitled to all consequential benefits at par
with male officers.
:: 33 ::
24. In Manjul Srivastava, (supra) learned Single Judge of
Allhabad High Court, while considering the claim for
compassionate appointment under the Uttar Pradesh
Recruitment of Dependents of Government Servants Dying
in Harness Rules, 1974, directed the authority to consider
the claim of compassionate appointment in accordance with
law, which shall mean without reference to her marital
status.
25. In Udham Singh Nagar District Cooperative Bank Ltd
(supra), the Full Bench of Uttarakhand High Court, while
considering the definition of "Family" in Rule 2(c) of the
Uttar Pradesh Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974 and in the note
below Regulation 104 of the U.P. Cooperative Committee
Employees Service Regulations, 1975 that any of the
members, referred to which includes a 'married' daughter
would be entitled to compassionate appointment even if they
were not dependent on the Government servant at the time
of death and also struck down the non-inclusion of
'married' daughter within the definition of 'family' under
Rule 2 (C) of 1975 Rules and in the note of Regulation 104
of 1975 Regulation holding that same is discriminatory and
in violation of Articles 14, 15 and 16 and Part-III of the
Constitution of India.
26. Reverting back to the case at hand, exclusion of "married
daughters" in the Rules, as mentioned above, is based on
the premise that, on her marriage, a daughter ceases to
depend on her father and is, thereafter, dependent on the
her husband and her in-laws. While this premise may,
possibly, have been justified in the social environment
prevalent half a century ago, such a premise ignores the
realities of present day society where the number of
destitute women abandoned by their husbands, or those
who are divorced and are not even provided maintenance,
are on rise. The policy, based on the marriage of a
daughter proving fatal for appointment on compassionate
grounds, proceeds in oblivion of husbands harassing and
torturing wives in ample measure, and thereby creating a
situation for the wives to withdraw from the matrimonial
household, and return to her paternal home, usually the
:: 34 ::
first refuge of one in distress. Such situations are not
uncommon in Indian conditions. These destitute women
invariably come back to their parental home, and are
supported by their parents both financially and otherwise.
This premise of the State Government, in making the
Rule/Regulation, is completely flawed and ignores present
day social realities.
27. Considering the question of dependence, it matters little
whether or not the son or the daughter is married for, if a
married son dependent on the deceased Government
servant is eligible for compassionate appointment, there is
no justifiable reason why a married daughter, merely
because of her 'marriage', should be held disentitled to be
considered for compassionate appointment, even if she
fulfills the requirement of being dependent on the deceased
Government servant at the time of his demise. Just as a son
continues to be the son of the deceased Government
servant, both before and after marriage, so does the
daughter. The mere fact that she is married does not result
in her ceasing to be the daughter of the deceased
Government servant. Just as sons (married or unmarried)
or daughters (widowed or unmarried) may also have an
independent means of livelihood and would therefore not be
eligible to be considered for compassionate appointment as
they are not dependent on the deceased Government
servant, likewise a married daughter, who is not dependent
on the deceased, would also be ineligible for being
considered for compassionate appointment.
28. No doubt, a daughter acquires a new relationship on
marriage; she does not, however, lose the old relationship;
qua relationships she is a daughter before, during and after
marriage; once married, the dependency factor does not
altogether cease; and proceeding on such an assumption
would be a misadventure. Therefore, drawing a distinction
between "married sons" on the one hand and "married
daughters" on the other, should satisfy the requirement of a
classification based on an intelligible differentia. It should,
in addition, fulfill the other test of having a reasonable
relation to the object sought to be achieved thereby.
:: 35 ::
29. If "dependency" is the intelligible differentia, which
distinguishes those included in the group from those
excluded therefrom, then a classification, which excludes
"married daughters dependent on the deceased
Government servant" from within its ambit, would not
satisfy the test of a valid classification, as it would then not
be based on an intelligible differentia. A valid classification
should also have a reasonable nexus with the object sought
to be achieved by the Rules/Regulations which, in the
present case, is to provide immediate succor, to the
deceased Government servant's family in financial distress,
by providing appointment on compassionate grounds to a
dependent.
30. Violation of gender equality is in violation of the
fundamental rights guaranteed under Articles 14, 15 and 21
of the Constitution. The guarantee under Article 15 of the
Constitution encompasses gender discrimination, and any
discrimination on grounds of gender fundamentally
disregards the right to equality, which the Constitution
guarantees. There cannot be any discrimination solely on
the ground of gender. The sustenance of gender justice is
the cultivated achievement of intrinsic human rights.
Equality cannot be achieved unless there are equal
opportunities and, if a woman is debarred at the threshold,
it clips her capacity and affects her individual dignity.
Gender identity is an integral part of sex and no citizen can
be discriminated on the ground of gender identity.
Discrimination, on the basis of gender identity, includes any
discrimination, exclusion, restriction or preference, which
has the effect of nullifying the equal protection of laws
guaranteed under our Constitution.
31. In the context of compassionate appointments, various High
Courts in Manjul Srivastava; Ranjana Murlidhar Anerao
(supra); State of West Bengal v. Purnima Das, 2017 SCC
Online Cal 13121; Anjula Singh and Smt. Sarojni Bhoi
(supra) have held that 'married' women cannot be denied
entry into service by way of compassionate appointment,
merely on the ground of marriage.
32. The exclusion of married daughter is based on the
assumption that, while a son continues to be a member of
:: 36 ::
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 compassionate appointment;
marriage does not determine the continuance of the
relationship of a child, whether a son or a daughter, with
the parents; the State has based its defence, 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 it must be held answerable to the recognition of
gender identity under Article 15.
33. The inclusion of 'married daughter', in the definition of a
'family', would enable her alone to get the benefit from two
families (that of her parents and of her husband) does not
merit acceptance. If the test is of dependence, a married
daughter who is dependent on her husband and her in-laws
would not be entitled to be extended the benefit of
compassionate appointment on the death of her parent,
since she would then not be dependent on them. It is
exclusion of only those destitute women, who are
abandoned/ignored by their husbands, who do not have any
other source of livelihood, and have perforce to depend on
their parent for their survival, from the ambit of a 'family',
which is unreasonable, irrational and arbitrary.
34. A larger Bench of Madhya Pradesh High Court in
Meenakshi Dubey (supra) held that Clause-2.2 of policy of
compassionate appointment of the State Government dated
29.09.2014 is violative of Articles 14, 16 and 39(a) of the
Constitution of India to the extent it deprives a 'married'
daughter from consideration for compassionate
appointment.
35. Adverting to the prayer made to declare the provision as
ultra vires, it means beyond powers, in strict sense.
Therefore, the expression is used to mean any act
performed in excess of powers of the authority or the
:: 37 ::
person, who performs the act. Prof. Wade, H.W.R.:
Administrative Law, observes as follows:
'The ultra vires doctrine is, therefore, not confined to cases
of plain excess of power; it also governs abuse of power, as
where something is done unjustifiably, for the wrong
reasons or by the wrong procedure. In law the
consequences are exactly the same; an improper motive or
a false step in procedure makes an administrative act just
as illegal as does a flagrant excess of authority. Unless the
Courts are able to develop doctrines of this kind, and to
apply hem energetically, they cannot impose limits on the
administrative powers which Parliament confers so freely,
often in almost unrestricted language.'
36. The term 'ultra vires', therefore, not only means 'beyond
powers' but also "wholly unauthorized by law" and thus
void. Basically, ultra vires character of an act may be two-
fold, (i) simple ultra vires, and (ii) procedural ultra vires.
(i) Simple ultra vires--
An act may be said to acquire the character of simple
ultra vires when the person does the act in excess of
the power conferred on him.
(ii) Procedural ultra vires--
Procedural ultra vires may happen when there is a
failure to comply with mandatory procedural
requirements. All procedural requirements as laid
down by statute should be complied with.
37. The development of the doctrine of ultra vires now refers to
not only the lack of power to do any act but also to any
situation like improper or unauthorized procedure, purpose
or violation of the law of natural justice in exercising the
power that is lawfully conferred on the authority concerned.
38. In Shri Sitaram Sugar Company Ltd. Vrs. Union of India,
(1990) 3 SCC 223, the apex Court observed that
'a repository of power acts ultra vires either when he acts
in excess of his power in the narrow sense or by acting in
:: 38 ::
bad faith or for an inadmissible purpose or for irrelevant
grounds or without regard to relevant considerations or
with gross unreasonableness. Act any of the repository of
power, whether legislative, administrative or quasi-judicial,
is open to challenge if it violates the provisions of the
Constitution or the governing Act or the general principles
of the law of the land or it is so arbitrary or unreasonable
that no fair minded authority could ever have made it.'
39. In Express Newspapers (P) Ltd Vrs. Union of India, AIR
1986 SC 872, the apex Court observed that
"the doctrine of ultra vires can cover virtually all situations
where statutory power is exercised contrary to some legal
principles. Where a public authority is held to have acted
for improper motives or irrelevant considerations, its action
is ultra vires and void".
40. In National Institute of Mental Health and Neuro Sciences v
Dr. K. Kalyana Raman, AIR 1992 Supp (2) SCC 481, the
apex Court observed that
'the procedural fairness is the main requirement in
administrative action. The 'fairness' or 'fair procedure' in
the administrative action ought to be observed.'
41. In Km. Srilekha Vidyarthi v. State of U.P., (1991) SCC 212,
the apex Court observed that
'arbitrariness and abuse of power is the antithesis of the
rule of law and hence every action involving arbitrary
decision and abuse of power is ultra vires.'
42. Article 14 of the Constitution guarantees to every person in
India equal treatment before law and extends protection of
the laws in equal measures to all.
43. In D.K. Yadav Vrs. J.M.A. Industries Ltd, (1993) 3 SCC
259, the apex Court held that Article 14 has a pervasive
processual potency and versatile quality, equalitarian in its
social and allergic to discriminatory dictates. Equality is
the antithesis of arbitrariness.
:: 39 ::
44. In Savitri Cairae Vrs. U.P. Avas Ebam Vikas Parishad, AIR
2003 SC 2725, the apex Court observed that
'equality clause in Article 14 is of wide import and it
permits reasoning classification based on intelligible
differentia having nexus with the object sought to be
achieved. Ordinarily equality clause cannot be invoked in
the enforcement of a State legislation vis-à-vis a
Parliamentary legislation or the legislation of another
State.'
45. In Maneka Gandhi Vrs. Union of India, AIR 1978 SC 597,
the apex Court observed that
'Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence.'
46. From the factual and legal analysis, as made above, it
emanates that institution of marriage is an important and
basic civil right of man and woman and marriage by itself
is not a disqualification and impugned policy of the State
Government barring and prohibiting the consideration of
the 'married' daughter from seeking compassionate
appointment merely on the ground of marriage is plainly
arbitrary and violative of constitutional guarantees, as
envisaged in Articles 14, 15, and 16(2) of the Constitution
of India. Accordingly, the word 'unmarried', as prescribed
in Rules, 1990 and Rules, 2020 is hereby struck down being
unconstitutional and ultra vires being violative of Articles
14, 15 and 16 of the Constitution of India.
47. As a fallout and consequence of aforesaid discussions, the
orders dated 06.05.2015 and 29.06.2015 passed by the
Tribunal in O.A. No.1063 (C) of 2015 and M.P. No.637(C)
of 2015 respectively cannot be sustained in the eye of law
and accordingly the same are liable to quashed and are
hereby quashed. As a consequence thereof, refusal to grant
benefit to the 'married' daughter for consideration of
compassionate appointment is hereby declared void and
inoperative. Hence, the order impugned passed by the
:: 40 ::
authority in rejecting the petitioner's case for
compassionate appointment is hereby quashed.
Accordingly, the opposite parties are directed to reconsider
the claim of the petitioner for being appointed on
compassionate ground afresh in accordance with law
keeping in mind the fact that her father was died on
12.12.2010 and her application was rejected on 17.11.2014
after four years.
48. Before parting with the case, this Court strongly condemns
the attitude of the Tahasildar, Khaira, who was discharging
his duty at the relevant point of time, in not providing the
enquiry report to the Collector, Balasore in spite of
repeated communications being made through Deputy
Collector, Addl. District Magistrate and Collector,
Balasore for issuance of distress certificate in favour of the
petitioner in time. The Tahasildar concerned shall be
communicated with regard to displeasure of this Court and
compliance thereof shall be filed before this Court by the
State Government within three months hence."
6.18. Similar is the view of the Andhra Pradesh High Court in the case
of Ch. Damayanthi Vrs. APSRTC rep by its Managing Director &
Ors., 2021 SCC OnLine AP 382 = (2021) 2 ALT 238 = (2021) 2
ALD 582 = (2021) 2 AmLJ 320 = 2021 Lab IC 4652.
6.19. Taking into view the aforesaid legal position as enunciated by
different Courts including this Court with reference to RA Rules
particularly Rule 2(b) which does not include "married daughter",
this Court is of the considered opinion that the reason assigned by
the Additional District Magistrate, Angul-opposite party No.3 for
rejecting the proposal of the Chief District Veterinary Officer,
Angul-opposite party No.4 vide Letter dated 18.03.2016
(Annexure-4) cannot be held to be tenable in the eye of law.
Hence, the Writ Petition/Original Application is bound to succeed.
:: 41 ::
7. Since the word 'unmarried', as provided in the RA Rules, 1990
and the RA Rules, 2020 is struck down by this Court in Division
Bench in the case of Kshirabadi Bala Behera Vrs. Orissa
Administrative Tribunal, W.P.(C) No. 14945 of 2015 [Judgment of
Division Bench on 24.08.2022], there is no other option but to set
aside the decision of the opposite party No.3-Additional District
Magistrate, Angul and, accordingly, the prayer of the petitioner to
quash the Order of refusal contained in Letter dated 18.03.2016
vide Annexure-4 enclosed to the writ petition is allowed.
7.1. The Division Bench of this Court, following the Judgment dated
24.08.2022 rendered in Kshirabadi Bala Behera Vrs. Orissa
Administrative Tribunal, W.P.(C) No. 14945 of 2015, in Sarojini
Rout Vrs. State of Odisha, WP(C) No.20508 of 2014, vide Order
dated 16.09.2022 directed as follows:
"6. Considering the contentions raised by learned counsel for
the parties and after going through the records, since the
case of the petitioner is covered by the ratio decided by this
Court in Kshirabadi Bala Behera (supra), the order dated
09.04.2013 under Annexure-6 passed by the District
Education Officer, Puri, as well as the order dated
29.09.2014 passed by the Tribunal in O.A. No.1178 (C) of
2013 cannot sustain in the eye of law. Accordingly, the
same are quashed. Therefore, this Court directs the State-
opposite parties to consider the case of the petitioner for
compassionate appointment, as she is entitled to get the said
benefit as OCS (RA) Scheme, 1990 is applicable to her.
Needless to say the State-opposite parties shall examine and
pass appropriate order within a period of four months from
the date of communication/production of certified copy of
this order."
7.2. This Court is not oblivious of the principles qua compassionate
appointment propounded in the Judgment of the Hon'ble Supreme
:: 42 ::
Court of India rendered in the case of State of Maharashtra Vrs.
Ms. Madhuri Maruti Vidhate (since after marriage Smt. Madhuri
Santosh Koli), 2022 LiveLaw (SC) 820 = 2022 SCC OnLine SC
1327. Said principles as summarized in the said case are
reproduced herein below:
"5. While considering the issue involved in the present appeal,
the law laid down by this Court on compassionate ground
on the death of the deceased employee are required to be
referred to and considered. In the recent decision, this
Court in the case of Director of Treasuries in Karnataka
and Anr. Vrs. V. Somyashree, 2021 SCC Online SC 704,
had occasion to consider the principle governing the grant
of appointment on compassionate ground. After referring to
the decision of this Court in N.C. Santhosh Vrs. State of
Karnataka, (2020) 7 SCC 617, this Court has summarised
the principle governing the grant of appointment on
compassionate ground as under:
(i) that the compassionate appointment is an exception
to the general rule;
(ii) that no aspirant has a right to compassionate
appointment;
(iii) the appointment to any public post in the service of
the State has to be made on the basis of the principle
in accordance with Articles 14 and 16 of the
Constitution of India;
(iv) appointment on compassionate ground can be made
only on fulfilling the norms laid down by the State's
policy and/or satisfaction of the eligibility criteria as
per the policy;
(v) the norms prevailing on the date of the consideration
of the application should be the basis for
consideration of claim for compassionate
appointment."
:: 43 ::
ORDER:
8. As a consequence of aforesaid discussions, the Order of refusal to
go ahead with the application of the petitioner-Bhanuprava
Garnaik under the RA Rules as communicated to the opposite
party No.4-Chief District Veterinary Officer, Angul by the
opposite party No.3-Additional District Magistrate, Angul on
18.03.2016 vide Annexure-4 to the Writ Petition/Original
Application on the ground that petitioner is married daughter
cannot be sustained in the eye of law and therefore, the same is set
aside.
9. Accordingly, the opposite parties are directed to examine and pass
appropriate order within a period of four months from the date of
communication/production of certified copy of this judgment
keeping in mind the fact that Khitish Chandra Garnaik, the father
of the petitioner-Bhanuprava Garnaik, died while in Government
service on 09.03.2015 and her mother-Sulochana Garnaik is found
to be not suitable to undertake Government service on account of
health issues and also provisions of Rule 16 of the RA Rules.
Needless to point out here that while considering the application
under the RA Rules, the competent authority shall bear in mind
the principles laid down by the Courts as referred to above and
take a decision in accordance with law. With the above terms, the
writ petition stands allowed, but there is no order as to costs in the
facts and circumstances of the case.
(M.S. RAMAN)
JUDGE
Aks High Court of Orissa, Cuttack
December 02, 2022
