Mahanadi Coalfields Ltd vs Wa No.2084 Of 2024 Page 1 Of 56
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Orissa High Court

Mahanadi Coalfields Ltd vs Wa No.2084 Of 2024 Page 1 Of 56 on 24 April, 2025

             ORISSA HIGH COURT : CUTTACK

                     WA No.2084 of 2024

         In the matter of an Appeal under Clause 10 of the
                 Letters Patent constituting
            the High Court of Judicature at Patna
                and read with Article 4 of the
             Rules of High Court of Orissa, 1948

                            ***

1. Mahanadi Coalfields Ltd.

Having its Registered Office At Jagriti Vihar, Burla, Sambalpur Odisha - 768 020 Represented by Chairman-cum-Managing Director.

2. Director, Personnel Mahanadi Coalfields Limited At/P.O.: Jagriti Vihar, Burla District:Sambalpur.

3. General Manager Lingaraj Area Mahanadi Coalfields Limited At/P.O.: Deulbera Colliery Talcher, District: Angul.

4. General Manager Central Workshop Mahanadi Coalfields Limited At/P.O.: South Balanda, Talcher, District: Angul. ... Appellants

-VERSUS-

1. Jayanta Kumar Pradhan Aged about 47 years Son of Duryodhan Pradhan At/Village: Brajanathpur P.O.: Radharamanpur, Talcher District: Angul and Qtr A/21, Block No.3, CWS Colony At: Talcher, P.O.: South Balanda Talcher, District: Angul, Odisha.

2. The Collector & District Magistrate, Angul, At/P.O./P.S./District: Angul.

3. Loknath Pradhan Son of Gumani Pradhan At/Village.: Balugaon P.O. : Deulbera Colliery, Talcher District: Angul. ... Respondents

4. General Manager (L&R) Mahanadi Coalfields Ltd.

     At/P.O.: Burla
     District: Sambalpur
     Odisha.                      ...      Pro forma Respondent

Counsel appeared for the parties:

For the Appellants        : Mr. Shaktidhar Das,
                            Senior Advocate along with
                            M/s. Haripad Mohanty,
                            K. Sattar, M. Faradish and
                            D. Samantaray, Advocates

For the Respondent No.1 : Mr. Bismay Anand Prusty, Advocate

P R E S E N T:

HONOURABLE CHIEF JUSTICE MR. HARISH TANDON

AND

HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN

Date of Hearing : 24.04.2025 :: Date of Judgment : 24.04.2025

J UDGMENT

MURAHARI SRI RAMAN, J.--

Invoking provisions under Clause-10 of the Letters Patent Constituting the High Court of Judicature at Patna read with Article 4 of the High Court of Orissa Rules, 1948, the present intra-Court appeal has been preferred at the instance of Mahanadi Coalfields Limited against the Judgement dated 25.06.2024 passed in W.P.(C) No.8555 of 2016 by the learned Single Bench with the following prayer(s):

―The appellant, therefore, prays that, this Hon'ble Court be graciously pleased to admit the appeal, call for the records and after hearing the counsel for the appellant, to set aside the judgment and order dated 25.06.2024 passed by the Hon'ble Single Judge in W.P.(C) No.8555 of 2016 considering the facts and circumstances narrated herein above and in the best interest of justice.

And for this act of kindness, the Appellant as in duty bound ever pray.‖

Facts:

2. Facts leading to filing of this writ appeal, as emanating from the pleadings, are narrated hereunder.

2.1. Jayanta Kumar Pradhan (for convenience referred to hereinafter as Respondent) had approached this Court by way of filing a writ petition under provisions of Articles 226 and 227 of the Constitution of India, 1950 challenging the proceeding of the Meeting of Sub-

Committee, Mahanadi Coalfields Limited (―MCL‖, hereinafter referred to) held on 02.08.2013, Show Cause Notice dated 19.04.2016 issued by the General Manager, CWS(X), Talcher, MCL and the Termination Order dated 07.05.2016 issued by the General Manager, CWS (X), Talcher.

2.2. The land of maternal grandfather of the Respondent situated in the village, Balugaon Khamar, Gongutia and Balugaon was acquired for the purpose of Lingaraj Open Cast Project of MCL for which an application for providing employment was submitted before the authorities under Rehabilitation and Resettlement Scheme, 1984 (for brevity, ―RR Scheme‖). The Personnel Manager issued a letter pursuant to the sponsored names by the Government, directing the maternal grandfather to appear before the Scrutiny Committee with relevant documents along with the ―nominee‖ (Respondent), in order to provide suitable employment to one of his family members. Accordingly, the Chief

General Manager issued appointment letter in favour of the Respondent directing him to join in the post of Trainee (Mining) under the RR Scheme.

2.3. After joining in his duty on 15.07.1996, the Respondent was granted promotion to higher posts. After having served for more than 20 years, the Sub-Committee in its Meeting held on 02.08.2013 decided to terminate the Respondent on the ground that the daughter's son of land loser is not entitled to employment under the RR Scheme. Consequent upon such decision the service of the Respondent was terminated vide Order dated 07.05.2016 issued by the General Manager, CWS (X), Talcher.

2.4. Challenging such action, the Respondent had approached this Court by way of filing application, being W.P.(C) No.8555 of 2016, which came to be disposed of vide Judgment dated 25.06.2024 with the following observations:

―***

5. Perused the materials available on records and considered the rival submissions made by the learned counsel for the Petitioner and the learned counsel for the Opposite Party Nos.1/5/MCL.

6. Upon hearing the submission made by the learned counsel for the parties and upon perusal of materials available on record, it is found that on 02.08.2013,

the Sub-Committee meeting was held under the Chairmanship of Collector, Angul, along with other members in which the employment matter of Sri Lokanath Pradhan, S/o. Sri Gumani Pradhan was taken up. Sri Gumani Pradhan, who is the son of Sri Dambaru Pradhan, the maternal grandfather of the Petitioner had claimed job benefits to his son, who was a minor at the time when the Petitioner was provided the employment benefit as the nominee of Dambaru Pradhan, the RT under the principle laid by the Government of Odisha in R&R Policy, 1989 that one job per land oustee family has to be provided in all land acquisition matters. However, after the death of Sri Dambaru Pradhan his son Sri Gumani Pradhan claimed for job benefit for his son Sri Lokanath Pradhan. The claim was rejected by the Functional Directors of MCL on the plea that the job benefit had already been given to the Petitioner as the family member of Sri Dambaru Pradhan. But the Collector, Angul expressed his displeasure over tis rejection and recommended job benefit to be provided to Sri Lokanath Pradhan, as he is to be treated as a member of a separate family of Sri Gumani Pradhan, as he was already married at the time of acquisition as per the guidelines of R& R policy, 1989. At the same time, it was also pointed out that the Petitioner's appointment on the said ground is not coming under the purview of nominee as the Petitioner happens to be the daughter's son of Sri Dambaru Pradhan. However, since the Petitioner has already served the Opposite Parties-company for more than 20 years and he was not engaged in any malpractice/suppression of facts while securing his job. Any termination at this stage, is likely to affect his livelihood badly. He has also been

promoted to the next level of posts with unblemished track record. MCL being a model employer is not supposed to do injustice to a sincere and old employee.

7. In such view of the matter, the Petitioner's prayer made in this Writ Petition is allowed.‖

2.5. Being dissatisfied, this intra-Court appeal has been preferred by the MCL (opposite parties in the writ petition).

Hearing:

3. Heard Sri Shaktidhar Das, learned Senior Advocate being assisted by Sri Haripad Mohanty, learned counsel for the Appellants and Sri Bismay Anand Prusty, learned Advocate appeared for the Respondent No.1. Since short point is involved, on the consent of the counsel for the parties, this matter is disposed of at the stage of ―Fresh Admission‖.

Rival contentions and submissions:

4. Sri Shaktidhar Das, learned Senior Advocate appearing along with Mr. Haripad Mohanty, learned counsel for the Appellants took a stand inter alia that the daughter's son of land loser is not comprehended within the meaning of family member in terms of RR Scheme and thereby he sought to justify action of terminating the service of Respondent. He would submit that after marriage of the

daughter status being changed, the son of the daughter of the land loser ceased to be family member and therefore, the employment offered wrongly, is decided to be terminated and rightly so.

4.1. Having not disputed the fact that the Respondent had undergone training for the post of Trainee (Mining) and after completion of his training period, he was allowed to join in his duty with effect from 15.07.1996 and thereafter got promotion to the next higher post of Senior Data Entry Operator, Grade-II in T & S Grade-B at Central Workshop (X), Talcher, Learned Senior Advocate urged that in the Sub-Committee Meeting of MCL held on 02.08.2013, the case of the Respondent was taken up and a conscious decision was taken to terminate him as daughter's son of land loser would not be entitled to employment in lieu of land acquired under the RR Scheme.

4.2. He went on to argue that illegal appointment could not be perpetuated and thereby the service of the Respondent was terminated with effect from 07.05.2016 for justified reasons. Such vital aspect being not appropriately appreciated by the learned Single Judge, he insisted to allow this writ appeal restoring the Order dated 07.05.2016 terminating the service of the Respondent issued by the General Manager, CWS (X), Talcher.

5. Sri Bismay Anand Prusty, learned Advocate appearing for the Respondent vehemently opposing the contentions and submissions advanced by the learned Senior Advocate for MCL submitted that having considered the application for employment under the provisions of RR Scheme, the MCL Authorities way back in 1996 not only allowed him to join his duty but after being satisfied with the unblemished service record, granted promotions to the higher position. The Respondent continued in his service for more than two decades. At this belated stage, i.e., 2013/2016, in absence of any allegation of fraud or misrepresentation on the part of the Respondent on the specious plea that the MCL Authorities had given employment to the Respondent, son of daughter of land oustee (loser) de hors terms of RR Scheme.

5.1. Strongly relying on a copy of Letter Reference No.GM(JA)/L&R/ Master/2016/316, dated 12.08.2016 supplied by the Senior Manager (L&R), Jagannath Area under the Right to Information Act, 2005, he submitted that said letter without any ambiguity reveals that under the RR Scheme of MCL not only employment was provided to son-in-law but also ―daughter's son‖ on many earlier occasions. Therefore, he submitted that the case of Respondent could not have been discriminated and his service ought not to have been terminated.

5.2. He placed reliance on Vikas Pratap Singh & Ors vs State Of Chhatisgarh 2013-14 SCC 499 and Rakesh Kumar Vrs. State of Bihar 2014 SCC 690 to buttress his argument that the Respondent having served MCL for more than two decades, in absence of any allegation of fraud, misappropriation and misconduct, his service should not have been terminated.

5.3. He, thus, essentially contended before the learned single Judge that the termination is not tenable in the eye of law and fervently prayed before this Court not to entertain the intra-Court appeal and dismiss the present writ appeal by sustaining the Judgment dated 25.06.2024 of the learned Single Bench

Discussions and analysis:

6. Considered the contentions of the learned counsels for the respective parties carefully, the undisputed fact remains that the Respondent has been serving in the MCL for more than two decades and was given promotion having unblemished service career. The MCL Authorities have sought to consider the case of Respondent in the year 2013 and terminated his services by Order dated 07.05.2016 of the General Manager, CWS (X), Talcher.

7. The seminal question sought to be raised by the learned Senior Advocate is that whether ―married daughter‖

could be considered for the purpose of RR Scheme so that her son could be beneficiary thereunder as nominee of maternal grandfather, who happened to be land loser.

8. This Court would refer to C.B. Muthamma Vrs. Union of India, (1979) 4 SCC 260, wherein the Hon'ble Supreme Court in the context of Indian Foreign Service (Conduct and Discipline) Rules, 1961, which prohibits appointment of married woman to such service, observed as follows:

―6. At the first blush this rule is in defiance of Article 16.

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

7. We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to

pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our Governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter-

affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central Government's affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.‖

8.1. Similar view has also been taken by a Division Bench of the Bombay High Court in Ranjana Murlidhar Anerao Vrs. State of Maharashtra, 2014 SCC OnLine Bom 910, which needs reference in the present context:

―7. Initially, the State of Maharashtra had made the Maharashtra Kerosene Dealers Licensing Order, 1966 in view of the power conferred by Section 3(2) of the Essential Commodities Act, 1955. Thereafter the Licensing Order of 1966 was replaced by the Licensing Order of 1979. By Government Resolution dated 22.12.1997 it was directed that while issuing license to a legal representative of a deceased license holder it was not necessary to issue a proclamation. In the category of legal representatives only the spouse of the deceased, major son, major unmarried daughter and dependent mother/father

were included. By subsequent Government Resolution dated 16.08.2001 certain changes were made in the categories of Licensing Authorities. The expression ―family‖ was explained to include husband, wife, major son, major unmarried daughter, daughter-in-law and dependent parents. By Government Resolution dated 10.12.2003, divorced daughter was included in the expression ―family‖. However, it was stated that on remarriage of such divorced daughter, the license would come to an end. Thereafter, by Government Resolution dated 20.02.2004, the expression ―family‖ as stipulated in earlier Government Resolution dated 16.08.2001 was modified. The expression ―family‖ included widow/widower of the license holder, major son, major unmarried daughter, daughter-in-law, legal heir, adopted son, divorced wife dependent on the head of the family of the license holder and dependent parents. Thus, except a married daughter, other categories of legal representatives were included in the expression ―family‖.

***

9. Before considering the challenge to the aforesaid Government Resolutions it may be noted that the Control Order of 1979 has been made in exercise of powers under section 3(2) of the Essential Commodities Act, 1955 with a view to regulate supply of kerosene which is an essential commodity through issuance of license. While the Control Order of 1979 lays down the manner in which a retail dealers' license is to be granted, manner in which it is to be renewed and the consequence of contravention of the conditions of the license, it is by way of Government Resolutions that the expression

―family‖ of a retail license holder is sought to be defined. In other words, by executive instructions the expression ―family‖ is defined thereby excluding a married daughter from its purview.

In this regard, it would be appropriate to refer to the decision of the Constitution Bench of the Supreme Court of India in Shri Sitaram Sugar Co. Ltd. Vrs. Union of India, (1990) 3 SCC 223 wherein notifications issued by the Central Government in exercise of power under Section 3(3-C) of the Essential Commodities Act, 1955 dividing the country into 16 zones and fixing the price of sugar for various zones were in challenge. In para-52 thereof it was observed as under:

‗52. The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with 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.'

10. Now coming to the principal challenge in the Writ Petition to Government Resolution dated 20-2-2004 to the extent it excludes a married daughter from being considered a member of the family of the deceased license holder is concerned, it must be noted that legal heirs of a deceased retail license holder are entitled to seek transfer of license in their name after the death of the license holder. However, by including only the spouse of the deceased, his/her major son, or unmarried daughter above the age of 18 years, daughter-in-law,

legal representative, adopted son, divorced daughter dependent on the head of the family and parents dependent on the head of the family in the meaning of the expression "family", a married daughter has been consciously excluded. Thus, a daughter prior to her marriage and a dependent divorced daughter are included within the purview of the expression "family" but a married daughter has been left out. There does not appear any rational basis for doing so. There could be a license holder having only one daughter. If the license holder unfortunately expires prior to her marriage, she if above 18 years of age would be eligible to be treated as a member of the family of the license holder. Similarly, if such daughter is divorced she would fall within the purview of the expression ―family‖. But, if married and also supporting the license holder in his/her old age, she would be excluded from being included in the expression of family in case the license holder expires. This exclusion of a married daughter does not appear to be based on any logic or other justifiable criteria. Marriage of a daughter who is otherwise a legal representative of a license holder cannot be held to her disadvantage in the matter of seeking transfer of license in her name on the death of the license holder. Under Article 19(1)(g) of the Constitution of India the right of a citizen to carry on any trade or business is preserved. Under Article 19(6) reasonable restrictions with regard to professional or technical qualifications necessary for carrying on any trade or business could be imposed. Similarly, gender discrimination is prohibited by Article 15 of the Constitution. The exclusion of a

married daughter from the purview of expression ―family‖ in the Licensing Order of 1979 is not only violative of Article 15 but the same also infringes the right guaranteed by Article 19(1)(g) of the Constitution.

11. In Savita Samvedi (Ms) Vrs. Union of India, (1996) 2 SCC 380, a circular of the Railway Board holding that a married daughter of a retiring official eligible to obtain regularization if her retiring father had no son was considered. In that context it was observed in paras-6 and 7 as under:

‗6. A common saying is worth pressing into service to blunt somewhat the Circular. It is-- ‗A son is a son until he gets a wife. A daughter is a daughter throughout her life.'

7. The retiring official's expectations in old age for care and attention and its measure from one of his children cannot be faulted, or his hopes dampened, by limiting his choice. That would be unfair and unreasonable. If he has only one married daughter, who is a railway employee, and none of his other children are, then his choice is and has to be limited to that railway employee married daughter. He should be in an unfettered position to nominate that daughter for regularization of railway accommodation. It is only in the case of more than one children in railway service that he may have to exercise a choice and we see no reason why the choice be not left with the retiring official's judgment on the point and be not respected by the Railway authorities irrespective of the gender of the child. There is

no occasion for the Railways to be regulating or bludgeoning the choice in favour of the son when existing and able to maintain his parents. The Railway Ministry's Circular in that regard appears thus to us to be wholly unfair, gender-biased and unreasonable, liable to be struck down under Article 14 of the Constitution. The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit of the earlier part of the Circular, referred to in its first paragraph, above-quoted.'

***

In Meena Dinkar Deshmukh @ Meena Sanjay Bawaskar Vrs. State of Maharashtra, Writ Petition No. 9474 of 2011 decided on 13.02.2012, the Division Bench of this Court referred to the decision in Apama Narendra Zambre Vrs. Assistant Superintendent Engineer, Krishna-Koyna Upsa Sinchan Project Board, Sangli, 2011 (5) Mh.L.J. 290 and held that a candidate could not be denied the benefits as available to a freedom fighter's nominee only on the ground that she was a married daughter of the freedom fighter.

In Sou. Swara Sachin Kulkarni (Kumari Deepa Ashok Kulkarni) Vrs. Superintending Engineer, Pune, Writ Petition No. 11987 of 2012 decided on 06.12.2013, the claim of a married daughter for appointment on compassionate basis was turned down by the authorities as she was not a part of the family of the deceased. This Court held that the stand of the State Government that a married

daughter would not be eligible or could not be considered for compassionate appointment was violative of the mandate of Articles 14, 15 and 16 of the Constitution of India. It was further held that no discrimination could be made in public employment on gender basis. It was directed that the claim of the petitioner be considered irrespective of the fact that she was married.

12. *** The aforesaid Government Resolutions therefore recognize the entitlement of a married daughter to seek benefits in the matter of compassionate appointment in State Government service and benefits admissible to a freedom fighter. It is thus obvious that the State of Maharashtra has recognized the entitlement of a married daughter to claim compassionate appointment in State Government services or seek benefits as a nominee of a freedom fighter as the case may be. If this be so there is no reason why a married daughter cannot be included in the expression "family" as stated in Government Resolution dated 20.02.2004. Such non- inclusion would itself militate against the decision of the State Government to recognize entitlement of a married daughter in the case of compassionate appointment or freedom fighter‟s benefits as the case may be. Hence, this is one more reason by which aforesaid Government Resolution dated 20.02.2004 to the extent it excludes a married daughter from being considered as a member of the family of a retail license holder is discriminatory and hence violative of Article 14 of the Constitution of India also.‖

8.2. 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:

―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 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 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 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 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. 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.

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.

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 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 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

non-discrimination 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 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).' ‖

8.3. In the case of Kshirabadi Bala Behera Vrs. Odisha Administrative Tribunal, W.P.(C) No. 14945 of 2015 [Judgment of Division Bench on 24.08.2022], this Court has made the following observation:

―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 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 wipe out 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.‖

8.4. The tenor and tone of Division Bench of this Court in the case of Kshirabadi Bala Behera (supra), 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 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.'

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 (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.

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 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.

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 Vrs. 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 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 appointment. 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 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 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 Vrs 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.

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.‖

8.5. Similar is the view of the Andhra Pradesh High Court in the case of Ch. Damayanthi Vrs. APSRTC rep. by its Managing Director, 2021 SCC OnLine AP 382.

9. In the above backdrop of understanding of position of ―married daughter‖ vis-à-vis ―unmarried daughter‖ qua Article 14 of the Constitution of India, the conceptually the term ―rehabilitation‖ can be couched from the discussions made in different pronouncements of the Courts.

9.1. The word ‗rehabilitation' has been defined in the Black's Law Dictionary (Sixth Edition). It means,

―Investing or clothing again with some right, authority, or dignity. Restoring person or thing to a former capacity, reinstating, qualifying again. Restoration of an individual to his greatest potential, whether physically, mentally, socially, or vocationally.‖

9.2. In Collector of 24 Parganas Vrs. Lalit Mohan Mullick, AIR 1986 SC 622 the object of ―rehabilitation‖ has been highlighted in the following manner:

―13. In Collins Dictionary of the English Language, the meaning for the word ‗rehabilitate' is given as "to help a person (who is physically or mentally disabled or has just been released from prison) to readapt to society or a new job as by vocational guidance, retraining or thereby*** . By rehabilitation

what is meant is not to provide shelter alone. The real purpose of rehabilitation can be achieved only if those who are sought to be rehabilitated are provided with shelter, food and other necessary amenities of life. It would be too much to contend, much less to accept, that providing medical facilities would not come within the concept of the word ‗rehabilitation'. ***‖

9.3. In the matter of Narmada Bachao Andolan Vrs. Union of India, (2000) 10 SCC 664, the Hon'ble Supreme Court noticed that displacement of people living on the proposed project sites and the areas to be submerged is an important issue and a properly drafted R&R plan would improve the living standards of displaced persons after displacement, and held as under in paragraph 241:

―Displacement of people living on the proposed project sites and the areas to be submerged is an important issue. Most of the hydrology projects are located in remote and inaccessible areas, where local population is, like in the present case, either illiterate or having marginal means of employment and the per capita income of the families is low. It is a fact that people are displaced by projects from their ancestral homes. Displacement of these people would undoubtedly disconnect them from their past, culture, custom and traditions, but then it becomes necessary to harvest a river for the larger good. A natural river is not only meant for the people close by but it should be for the benefit of those who can make use of it, being away from it or nearby. Realising the fact that displacement of these people would disconnect them from their past, culture, custom and traditions, the moment any

village is earmarked for takeover for dam or any other developmental activity, the project-implementing authorities have to implement R&R programmes. The R&R plans are required to be specially drafted and implemented to mitigate problems whatsoever relating to all, whether rich or poor, landowner or encroacher, farmer or tenant, employee or employer, tribal or non-tribal. A properly drafted R&R plan would improve the living standards of displaced persons after displacement.‖

9.4. The Hon'ble Supreme Court of India in N.D. Jayal Vrs.

Union of India, (2004) 9 SCC 362 held that,

―60. Rehabilitation is not only about providing just food, clothes or shelter. It is also about extending support to rebuild livelihood by ensuring necessary amenities of life. Rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in a better position to lead a decent life and earn livelihood in the rehabilitated locations. Thus observed this Court in Narmada Bachao Andolan case, (2000) 10 SCC 664. The overarching projected benefits from the dam should not be counted as an alibi to deprive the fundamental rights of oustees. They should be rehabilitated as soon as they are uprooted. And none of them should be allowed to wait for rehabilitation. Rehabilitation should take place before six months of submergence. Such a time-limit was fixed by this Court in B.D. Sharma Vrs. Union of India, 1992 Supp (3) SCC 93 and this was reiterated in Narmada, (2000) 10 SCC 664. This prior rehabilitation will create a sense of confidence among the oustees and they will be in a better position to start their life by acclimatizing themselves with the new environment.‖

9.5. In State of Madhya Pradesh Vrs. Narmada Bachao Andolan, (2011) 7 SCC 639, it has been clearly held that the land oustees are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned and observed as under:

―Thus, from the above referred judgments, it is evident that acquisition of land does not violate any constitutional/fundamental right of the displaced persons. However, they are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned.‖

Conclusion:

10. Thus, being the perspective of ―married daughter‖ and the position of ―married daughter‖ in a family, as examined with respect to object and nature of the RR Scheme/Policy qua land losers/oustees, only point which needs to be highlighted here is that there could not be any discriminatory treatment to ―married daughter‖, who is treated to be member of the family whose father's land is acquired for beneficial use of larger public. The RR Scheme of MCL should not have confined its extension only to ―unmarried daughter‖. The pious obligation of the Government/project for which the land is sought to be acquired is not only to extend benefit of food, cloth and shelter, but also to provide all necessary amenities of life which includes employment to member of the land oustee/affected family. The

member of the affected family is entitled for resettlement and rehabilitation as per the Scheme framed in that behalf by the Government/MCL and as such, the RR Scheme framed for rehabilitation of land oustee must be just, fair, reasonable and consistent with the provisions of the Constitution of India, particularly Articles 14 and

15.

10.1. Since no invidious distinction can be perceived between the ―married daughter' and ―unmarried daughter‖, in view of the aforesaid cited and referred decisions, this Court is of the considered view that the argument advanced by Sri Shaktidhar Das, learned Senior Advocate while justifying the action of the MCL Authorities is untenable and the employment given to the Respondent way back in the year 1996 under the RR Scheme in lieu of acquisition of land of his maternal grandfather could not be taken away in garb of reconsidering the case of the grandfather in the year 2013 conspicuously around two decades after allowing the Respondent to join the service of MCL and granting promotion thereafter.

10.2. This Court also takes cognizance of the fact that the Respondent has served in MCL for more than 20 years with unblemished service record. For no fault of him, the MCL-Employer should not have decided to terminate him and, accordingly, this Court finds the decision of the

Sub-Committee dated 02.08.2013 (Annexure-8) and consequential Termination Order dated 07.05.2016 under Annexure-14 cannot be sustained.

10.3. This Court appreciates the fact, to which learned Senior Advocate conceded, that the MCL has been providing employment under the Rehabilitation and Resettlement Scheme to ―son-in-law‖ as well as ―daughter's son‖. This fact is discernible from the information supplied by the Senior Manager (L&R), Jagannath Area of MCL under the Right to Information Act, 2005. It may be stated that in the context of employment under the Rehabilitation and Resettlement Scheme, particularly those designed for land losers, there are specific legal and ethical considerations that govern the employment practices of employers, which is exception to regular process of recruitment. The Scheme is implemented to support individuals who have lost their lands due to development projects. The intent is to provide them with opportunities for sustainable livelihood. The principle established here is rooted in fairness and equity, especially when considering the socio-economic vulnerabilities faced by families affected by land acquisition.

When an employer adopts ‗pick and choose' method while retaining certain employees, being the son-in-law or the son of the married daughter, who were given employment under the Rehabilitation and Resettlement

Scheme, the same not only raises significant concerns regarding fairness and legality, but also offends the constitutional principle-- equal protection of law. If the employer has been consistently employing the son of a married daughter of a land loser while not taking action against such other employees, who were appointed under the same scheme, this could be seen as discriminatory practice, which violates the norm envisioned under Article 14 of the Constitution of India.

This Court, on a query posed to the Senior Counsel for the MCL in this respect, got the reply that no such action has been taken against other similarly situated employees as that is taken against the present petition. MCL, being employer, is required to adhere to principles of equality and cannot render discriminatory treatment to equally circumstanced employees. As the petitioner could demonstrate that he has been terminated from service by Order in Letter dated 07.05.2016, whereas no such step has been taken by the MCL with respect to other employees, being son-in-law or son of married daughter of land losers, who are similarly placed. Such unfair treatment qua the petitioner compared to others who are similarly situated warrants intervention in the Order in Letter dated 07.05.2016 (Annexure-16) terminating service.

Thus, in the case at hand, there is material on record to suggest that the MCL has been selectively extending the benefit of employment to the son-in-law or the son of the married daughter of the land oustee by applying the Rehabilitation and Resettlement Scheme without objection over a period of time, it has no ground to terminate the service of the petitioner without just cause. This aligns with broader legal principles regarding employment security and non-discrimination.

10.4. With the above note, the Judgment dated 25.06.2024 of learned Single Bench in W.P.(C) No.8555 of 2016 does not suffer from any infirmity or illegality.

11. Accordingly, the writ appeal is dismissed. As a result of disposal of the writ appeal, all pending interlocutory applications, if any, shall stand disposed of.

                                                               (HARISH TANDON)
                                                                 CHIEF JUSTICE



                                                          (MURAHARI SRI RAMAN)
Signature Not                                                   JUDGE
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal Assistant
(Secretary-in-Charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 29-Apr-2025 19:59:46

                    High Court of Orissa, Cuttack

The 24h April, 2025//Aswini/Laxmikant/Suchitra