Rajasthan High Court - Jodhpur
Smt. Heena Sheikh vs State Of Rajasthan on 13 September, 2022
Bench: Sandeep Mehta, Vijay Bishnoi
(1 of 33)
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
Civil Reference No. 1/2022
Priyanka Shrimali D/o Bhagwati Lal Shrimali, aged about 34
Years, Resident of 25-A, Bapunagar, Kanchan Kutiya, Badgaon,
Udaipur
----Petitioner
Versus
1. State of Rajasthan, Secretary, Department of Personnel,
Secretariat, Jaipur
2. The Director, Secondary Education, Bikaner
3. District Education Officer (Head Quarter), Secondary,
Rajsamand
4. Chief Block Education Officer Cum Edication, Khamnore,
Rajsamand
----Respondents
Connected With
D.B. Civil Writ Petition No. 7343/2019
1. Kavita Gurjar D/o Late Ramesh Chandra Gurjar, aged
about 22 Years, R/o 50-E, Gandhi Nagar, Chittorgarh
(Raj.).
2. Kamlesh Gurjer W/o Late Ramesh Chandra Gurjar, aged
about 43 Years, R/o 50-E, Gandhi Nagar,
Chittorgarh(Raj.).
----Petitioners
Versus
1. State of Rajasthan through the Principal Secretary,
Department of Transport, Govt. of Rajasthan, Secretariat,
Jaipur.
2. Rajasthan Road Transport Corporation through its
Managing Director, Head Office, Chamu House, Parivahan
Marg, Jaipur.
3. Chief Manager, Rajasthan State Road Transport
Corporation, Chittorgarh Depot, Chittorgarh.
----Respondents
D.B. Civil Writ Petition No. 13697/2021
Savita Khatik D/o Rameshwar Lal Khatik, aged about 26 Years,
B/c Khatik, Resident of Khatik Mohalla, Lasani, District
Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Chief Secretary,
Government Of Rajasthan, Jaipur.
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2. The Secretary, Department of Secretary Education,
Government Of Rajasthan, Jaipur.
3. The Director, Department of Elementary Education,
Rajasthan, Bikaner (Rajasthan).
4. The District Education Officer (Elementary), Rajsamand
(Raj.).
5. The Block Education Officer (Elementary), Panchayat
Samiti Devgarh, District Rajsamand (Rajasthan).
6. Principal/peeo, Government Higher Secondary School,
Lasani, District Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 15488/2021
Smt. Heena Sheikh D/o Jameel Mohammad Sheikh W/o
Mohamed Rashid Khan, aged about 33 Years, Resident of 205,
Gandhi Nagar, Kalka Mata Road, Pahada, Udaipur (Rajasthan)
----Petitioner
Versus
1. State of Rajasthan through the Chief Secretary,
Secondary Education Department, Govt. of Rajasthan,
Secretariat, Jaipur (Rajasthan).
2. The Director, Secondary Education Department, Bikaner
(Rajasthan)
3. The District Education Officer, Head Quarter, (Secondary
Education) Chittorgarh (Rajasthan)
4. The Chief Block Education Officer, Panchayat Samiti
Bhupalsagar, District Chittorgarh (Rajasthan)
----Respondents
Members of the Bar : Mr. Vinay Jain.
Dr. Nupur Bhati.
Mr. Harish Purohit.
Mr. M.S. Purohit.
Mr. Rakesh Kalla.
Mr. Manish Pitaliya.
Mr. Subhankar Johari.
Mr. Vikas Bijarnia.
Mr. Vivek Mathur.
Mr. Hanuman Singh Choudhary.
Mr. Amit Kumar Purohit.
Mr. D.D. Purohit.
Mr. Narayan Yadav.
Mr. Lalit Parihar.
Mr. Rishabh Tayal.
Mr. Jitendar Choudhary.
Mr. Kuldeep Vaishnav.
Mr. V.D. Vaishnav.
Mr. Vikram Singh.
Mr. Arpit Samariya.
Mr. Virendra Agarwal.
(Downloaded on 13/09/2022 at 11:59:59 PM)
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Mr. G.S. Rathore.
Mr. Hari Singh Rajpurohit.
Mr. Bharat Devasi.
Ms. Paru Malik.
Mr. Narendra Malik.
Mr. Rishabh Purohit.
Mr. Pawan Bharti.
Mr. M.P. Singh.
Mr. Arpit Gupta.
Mr. K.D. Dayal.
Ms. Adeeti.
Ms. Kingal Purohit.
Ms. Radhika Vyas.
Mr. Manoj Purohit.
Mr. RDSS Kharlia.
Mr. Naman Bhansali.
Mr. S.S. Choudhary.
Mr. Vishal Singhal.
Mr. K.S. Sisodia through V.C.
Mr. Kshma Purohit through V.C.
Mr. Manish Vyas, AAG with
Mr. Kailash Choudhary.
Mr. Sunil Beniwal, AAG.
Mr. Sudhir Tak, AAG with
Mr. Saransh Vij.
Mr. Vikram Choudhary.
Mr. R.R. Ankiya.
Mr. Avin Chhangani.
Ms. Dimple Chhangani through V.C.
Mr. Parmeshwar Pilania through V.C.
Mr. Surya Kant through V.C.
Mr. Sayar Gurjar, through V.C.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VIJAY BISHNOI
HON'BLE MR. JUSTICE ARUN BHANSALI
ORDER
Reportable
13/09/2022
By the Court (Per Hon'ble Mr. Justice Arun Bhansali) :
The present reference has come-up before this Larger Bench
on account of issue referred by the Division Bench on 12.01.2022,
inter alia, observing and referring the question as under:-
"In our opinion, the view of the Rajasthan High
Court requires consideration by a larger Bench. The
reference is therefore made to three members Bench
on the following:
(4 of 33)
"Whether the view taken by the
three Division Benches of this Court in
the cases of Smt. Sumer Kanwar (supra),
Smt. Vandana Sharma (supra) and
Kshama Devi (supra) upholding the vires
of Rule 2(c) of the Rules, which excludes
the married daughter from the definition
of term 'dependent' is correct?"
After hearing the learned counsel appearing before this
Bench, on 20.07.2022, the question referred was re-framed with
the following observations:-
"After hearing the learned counsel
appearing before us on previous dates and
today, we are of the opinion that the question
which has been referred to the Larger Bench
requiring it to examine the correctness of the
Division Bench judgments in the case of Smt.
Sumer Kanwar, Smt. Vandana Sharma and
Kshama Devi restricts the scope of consideration
of the aspects which arise in the matter and
rather puts this Larger Bench in an appellate
position, which essentially is contrary to the
jurisprudence in relation to reference of issues to
a Larger Bench.
In view of the above, after hearing the
learned counsel, the issue for consideration in
the present reference is re-framed as under:
"Whether the provisions of Rule
2(c) of the Rajasthan Compassionate
Appointment of Dependents of
Deceased Government Servant Rules,
1996, which excludes the married
daughter from the definition of
'dependent', prior to its amendment
vide Notification dated 28/10/2021, is
discriminatory and violative of Articles
14 & 16 of the Constitution of India? In
case the provision is discriminatory etc.,
the consequences thereof."
The above question was referred by the Division Bench, while
hearing the case of Priyanka Shrimali v. State of Raj. & Ors.:
DBCW No. 14345/2021. Whereafter, in Savita Khatik v. State of
Raj. & Ors.: DBCW No. 13697/2021 and Smt. Heena Sheikh v.
State of Raj. & Ors.: DBCW No. 15488/2021 also directions were
given for connecting the said petitions with the present reference.
(5 of 33)
Though in Kavita Gurjar & Anr. v. State of Raj. & Ors.:DBCW
No.7343/2019, challenge has been laid to the validity of Clause
2(c) of the Rajasthan State Road Transport Corporation
Compassionate Appointment of the Dependents of Deceased
Employees Regulations, 2010, as the provisions are akin to the
provisions of Rule 2(c) of the Rajasthan Compassionate
Appointment of Dependents of Deceased Government Servant
Rules, 1996 ('the Rules of 1996'), the same was also ordered to
be connected to the present reference.
The petitioner-Priyanka Shrimali filed the petition praying that
the provisions of Rule 2(c) of the Rules of 1996 be declared
unconstitutional to the extent it envisage that besides spouse and
son only 'unmarried daughter' is entitled for consideration for
compassionate appointment as the petitioner, a married daughter
of Smt. Hemlata Shrimali, a Government Servant, who died on
18.06.2021 sought compassionate appointment as the only child
of the deceased, even after the marriage, she was living with her
parents and now father only, however, on account of the
provisions of the Rules of 1996, her candidature was rejected by
order dated 01.09.2021, inter alia, indicating that married
daughter is not eligible for compassionate appointment under the
Rules of 1996.
Similarly, the petitioner-Savita Khatik, on account of death of
her mother, a Government servant, who died on 18.04.2021 and
being the only child claimed herself to be wholly dependent on her
mother, sought appointment under the Rules of 1996, however,
(6 of 33)
as the definition of dependent excluded married daughter under
the Rules of 1996, she has challenged the validity of the provision.
The petitioner-Heena Sheikh's mother Smt. Nuzhat Aara was
a Government servant, who died on 04.03.2019 and the petitioner
also being the only child, sought compassionate appointment
claiming herself as dependent on the deceased, however, it was
indicated to her that on account of the fact that the petitioner is a
married daughter of the deceased, she is not entitled for
compassionate appointment under the Rules of 1996.
Rule 2(c) of the Rules of 1996, a part whereof is under
question reads as under:
"2(c) "Dependent" means a spouse, son,
unmarried or widowed daughter, adopted son/
adopted unmarried daughter legally adopted by
the deceased Government servant during his/
her life time and who were wholly dependent on
the deceased government servant at the time of
his/her death."
As per the above Rule, the word 'dependent', which is the
requirement for seeking compassionate appointment under the
Rules of 1996, has been defined as spouse, son, unmarried or
widowed daughter, adopted son/adopted unmarried daughter,
legally adopted by the deceased Government servant during
his/her life time and who were wholly dependent on the deceased
Government servant at the time of his/her death.
The language of the provision makes it clear that married
daughter/adopted married daughter, do not fall within the
definition of the said provision and, consequently, the married
daughters are not entitled to seek compassionate appointment.
(7 of 33)
It would be relevant to notice at this stage that the definition
under Rule 2(c) of the Rules of 1996, has undergone change on
account of amendment in the Rules of 1996 w.e.f. 28.10.2021,
wherein the existing definition has been substituted as under:-
"(c) "Dependent" means,:
(i) spouse, or
(ii) son including son legally adopted by
the deceased Government servant
during his/her life time, or
(iii) unmarried/widowed/divorced daughter
including daughter legally adopted by
the deceased Government servant
during his/her life time, or
(iv) married daughter, if no other
dependent of the deceased
Government servant mentioned in
clause (ii) and (iii) above is available,
or
(v) mother, father, unmarried brother or
unmarried sister in case of unmarried
deceased Government servant,
who was wholly dependent on the deceased
Government servant at the time of his/her
death."
It would be seen that now a married daughter also has been
included in the definition of 'dependent', subject to certain
conditions.
On account of nature of reference and its implication, large
number of lawyers appeared and made submissions.
Learned counsel appearing for the petitioners and all the
counsel appearing in support of the proposition regarding the
provision being discriminatory and violative of Articles 14 to 16 of
the Constitution of India, made vehement submissions with
reference to the facts of their cases that in all the three cases, the
applicants are single daughters of the deceased Government
servant and their father/mother, are not in a position to seek
compassionate appointment and that as the petitioners were
(8 of 33)
dependent on the deceased Government servant, they sought
compassionate appointment.
However, on sole consideration that the requirement of the
Rule is 'unmarried daughter' and the petitioners are married,
without considering the other relevant aspects under the Rules of
1996, their applications have been turned down.
Submissions have been made that the restrictive definition of
'dependent' in the Rules forbids compassionate appointment to an
unmarried daughter, which is wholly discriminatory and violative
of Articles 14 to 16 of the Constitution of India.
Submissions were made that only on account of the fact that
the petitioners were married, they could not be debarred from
consideration for grant of compassionate appointment as they
otherwise fulfill all the requisite considerations.
It was emphasized that the prefix 'unmarried' before daughter
in the provision, by itself is discriminatory be it qua the son, for
whom, there is no such restriction or qua an unmarried daughter
itself and, therefore, the provision restricting the definition of
daughter to an unmarried daughter, deserves to be struck down.
It was submitted that the Division Bench, while considering
the validity of the said provision in Sumer Kanwar v. State of Raj.
& Ors.: 2012(3) RLW 2546 (Raj.), upheld the validity thereof, on
the said aspect, by observing that the definition of the dependent,
cannot be expanded by the Court as it's a matter of policy of the
State and that the aspects pertaining to the provision being
(9 of 33)
discriminatory and violative of Articles 14 to 16 of the Constitution
of India, were not adverted to.
It is further submitted that in Kshama Devi & Ors. v. State of
Raj. & Ors.: DBCW No. 14393/2019, decided on 27.08.2019 at
Jaipur Bench, the Division Bench simply followed/agreed with the
view taken in the case of Sumer Kanwar (supra) and in the case of
Vandana Sharma v. State of Raj. & Ors.: DBCW No. 13087/2017,
decided on 14.10.2017, the issue though specifically raised, was
not dealt with by the Division Bench.
It was submitted that as the judgments in the case of Sumer
Kanwar (supra), Kshama Devi (supra) and Vandana Sharma
(supra), have not even dealt with the issue pertaining to the
provision being discriminatory and violative of Articles 14 to 16 of
the Constitution of India, the said judgments, require
reconsideration in light of the submissions made.
Further submissions were made that the similar provisions,
have been interpreted by several High Courts, who have all come
to the unanimous conclusion that exclusion of married daughters
from the purview of compassionate appointment is unreasonable,
arbitrary and violative of equity clauses enshrined in Articles 14 to
16 of the Constitution of India.
Reference was made to judgments in State of Tripura & Ors.
v. Smt. Debashri Chakraborty : WA No. 80 of 2020, decided on
08.02.2022 by the Division Bench of Tripura High Court; Udham
Singh Nagar District Cooperative Bank Ltd. & Anr. v. Anjula Singh
& Ors.: Special Appeal No. 187 of 2017, decided on 25.03.2019 by
the Full Bench of Uttarakhand High Court; Mamta Devi v. State of
(10 of 33)
Himachal Pradesh & Ors.: CWP No. 3100/2020, decided on
28.10.2020 by the Division Bench of Himachal Pradesh High
Court; Manjul Srivastava v. State of UP & Ors.: Writ-A No.10928
of 2020, decided on 15.12.2020 by Allahabad High Court;
Meenakshi Dubey v. M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. &
Ors.: WA No. 756/2019, decided on 02.03.2020 by Full Bench of
Madhya Pradesh High Court; Smt. Sarojni Bhoi v. State of
Chhattisgarh & Ors.: WP(S) No. 296 of 2014, decided on
30.11.2015 by Chhattisgarh High Court; State of West Bengal &
Ors. v. Purnima Das & Ors.: CAN - 12495/2014 in FMA -
1277/2015, decided on 13.09.2017 by Full Bench of Calcutta High
Court; Smt. Bhuvaneshwari V. Puranik v. State of Karnataka &
Ors.: WP No. 17788/2018, decided on 15.12.2020 by Karnataka
High Court; Smt. Vimla Srivastava v. State of UP & Anr.: Writ-C
No. 60881 of 2015, decided on 04.12.2015 by the Division Bench
of Allahabad High Court; Sou. Swara Sachin Kulkarni (Kumari
Deepa Ashok Kulkarni) v. The Superintending Engineer, Pune
Irrigation Project Circle : 2013 SCC Online Bom 1549(DB).
Further submissions have been made that Hon'ble Supreme
Court in State of Karnataka & Ors. v. C.N. Apporva Shree & Anr.:
Special Leave to Appeal (C) No.20166/2021, decided on
17.12.2021 has approved the view of Karnataka High Court
noticing the judgment in the case of Smt. Bhuvaneshwari V.
Puranik (supra) by way of a reasoned order and, therefore, the
provision restricting the definition to 'unmarried daughter'
deserves to be struck down.
(11 of 33)
It was also emphasized that the subsequent amendment
dated 28.10.2021 introduced by the State, clearly reflects that the
State also has realized that the provision of debarring a married
daughter from consideration for grant of compassionate
appointment, is not valid and has amended the definition, which
clearly is an admission on part of the State qua the provision
being discriminatory.
Emphasize was also laid that as the cut-off date for
consideration of application for compassionate appointment is the
date of death of the Government servant, which in all these cases
is before the amendment dated 28.10.2021, the cases of the
petitioners would be governed by the unamended provision and,
therefore, the validity needs to be examined by the Court as
unless the Rule is struck down to the extent of 'unmarried' from
the definition as it stood prior to the amendment, the petitioners
would be deprived of consideration by the respondents.
Submissions were also made that in case, the provision to the
extent of the word 'unmarried' is struck down, the apprehension
expressed by few counsels regarding the same leading to
reopening of the settled cases and/or opening the flood gates in
relation to the applications, which can be now made by married
daughters, who may have been denied the appointments at the
relevant time, have no basis, inasmuch as, by the striking down
the said word from the provision, the other related requirements
pertaining to compassionate appointment as laid down by Hon'ble
Supreme Court from time to time, would not be nullified due to
(12 of 33)
this event and, therefore, the provision to the above extent
deserves to be quashed and set aside.
Learned counsel appearing for the respondent-State and few
counsel opposing the proposition, made submissions that on
account of amendment dated 28.10.2021, to Rule 2(c) of the
Rules of 1996, the challenge to the Rule prior to amendment, does
not survive, the amendment is prospective, the exercise is
academic in nature, the non-inclusion of married daughter in the
definition is a matter of reasonable restriction to ensure that the
immediate family /dependent of the deceased Government
servant, can avail the benefit of compassionate appointment and
as such the same is not violative of Articles 14, 15 and 16 of the
Constitution of India.
It was emphasized that as the validity of the provision has
been repeatedly upheld by this Court in the cases of Smt. Sumer
Kanwar (supra), Smt. Vandana Sharma (supra) and Kshama Devi
(supra) and several other cases, there is now, no necessity to re-
adjudicate the said aspect.
It was re-emphasized that the action taken/orders passed
under the previous law, cannot be reopened and that the policy of
compassionate appointment is to assuage the immediate financial
hardship of the incumbent Government servant, who died in
harness and, therefore, the cases already decided, cannot be
permitted to be reopened and that there is no vested right of the
legal representatives of the deceased in seeking compassionate
appointment.
(13 of 33)
Learned counsel emphasized that the compassionate
appointment is an exception to the general rule that appointment
to any public post in the service of the State has to be made on
the basis of principles in accordance with Article 14 to 16 of the
Constitution of India.
Further submissions were made that as other provisions of
the Rules of 1996, require the applicant to be wholly dependent
on the deceased Government servant at the time of his/her death,
a married daughter would not fulfill the said requirement.
Submissions have also been made that the State Government
has taken a policy decision and has amended the Rule vide
notification dated 28.10.2021 and, therefore, the validity of the
decision made prior to promulgation of the notification, cannot be
questioned at this belated stage. Further, as the aspect of
inclusion/exclusion for grant of compassionate appointment is in
the domain of policy making, the State Government has the power
to completely exclude the married daughters from its ambit. The
State can create classification on the basis of degree of
dependency as an unmarried/widowed/divorced daughter has
greater degree of dependency on her premarital family in
contradistinction to degree of dependency of a married daughter.
It is further submitted that a law cannot be struck down
merely because a better policy/course of action could be adopted.
Apprehension has been expressed that reopening the validity of
decisions made prior to 28.10.2021 would cause prejudice to the
dependents/incumbents, who have been employed under the
compassionate appointment, whose rights have already
(14 of 33)
crystallized. It was again re-emphasized that compassionate
appointment is not regular source of recruitment.
Reliance was placed on the judgments in the case of Smt.
Sumer Kanwar (supra), Smt. Vandana Sharma (supra) and
Kshama Devi (supra), which are under consideration in the
present matter.
One of the learned counsel made reference to the judgment
in Miss C.B. Muthamma v. UOI & Ors.: AIR 1979 SC 1868 to
contend that equality of men and women, cannot be universalised.
For emphasizing the general propositions relating to
compassionate appointment, reliance was placed on Umesh
Kumar Nagpal v. State of Haryana : (1994) 4 SCC 138; Indian
Bank v. Promila (2020) 2 SCC 729; State of H.P. v. Parkash
Chand : (2019) 4 SCC 285; State Bank of India v. Somvir Singh :
(2007) 4 SCC 778; N.C. Santhosh v. State of Karnataka & Ors.:
(2020) 7 SCC 617; The Director of Treasuries in Karnataka & Anr.
v. V. Somyashree : AIR 2021 SC 5620 and State of Himachal
Pradesh & Anr. v. Shashi Kumar : (2019) 3 SCC 653.
We may at this stage also notice that besides the three
judgments in the case of Smt. Sumer Kanwar (supra), Smt.
Vandana Sharma (supra) and Kshama Devi (supra) referred to by
the Division Bench by its order of reference dated 12.01.2022,
orders in Janita Kumari & Ors. V. State of Raj. & Ors.: DBCW No.
6776/2015, decided on 03.05.2016 at Jaipur Bench; Urmila Devi
v. State of Raj. & Ors.: DBCW No. 1255/2018, decided on
22.03.2018 at Jaipur Bench; Lavina David v. State of Raj. & Ors.:
DBCW No. 7355/2017, decided on 11.07.2017 at Jaipur Bench;
(15 of 33)
Sapna v. University of Rajasthan : DBCW No. 9686/2020, decided
on 04.12.2020 at Jaipur Bench and Medha Tiwari v. State of Raj.
& Ors.: DBCW No. 11193/2015, decided on 05.05.2016 at Jaipur
Bench, have also upheld the validity of provisions of Rule 2(c) of
the Rules of 1996 to the extent the same has excluded the
married daughter from the definition of 'dependent'.
We have considered the submissions made by learned
counsel for the parties and have perused the material available on
record and plethora of judgments cited by the learned appearing
counsel.
At the outset, it may be noticed that it is now well settled
that the object of according compassionate appointment to the
dependent of a deceased government servant, is to help the
family to tide over the crisis, which unfortunately they are faced
with on account of death of the sole earner of the family. The
intention is to ensure that the family is able to face the
catastrophe and, therefore, emphasis has always been laid on
according immediate appointment to the dependent.
The Hon'ble Supreme Court has time and again interpreted
the above aspect including the limitations ever since the judgment
in the case of Umesh Kumar Nagpal (supra), wherein it was, inter
alia, laid down as under:-
"2. The question relates to the considerations which
should guide while giving appointment in public
services on compassionate ground. It appears that
there has been a good deal of obfuscation on the
issue. 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
permissible. Neither the Governments nor the public
(16 of 33)
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 dependants 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 dependants 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 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.
The posts in Classes III and IV are the lowest posts in
non-manual and manual categories and hence they
alone can be offered on compassionate grounds, the
object being to relieve the family, of the financial
destitution and to help it get over the emergency. The
provision of employment in such lowest posts by
making an exception to the rule is justifiable and valid
since it is not discriminatory. The favourable
treatment given to such dependent of the deceased
employee in such posts has a rational nexus with the
object sought to be achieved, viz., relief against
destitution. No other posts are expected or required
to be given by the public authorities for the purpose.
It must be remembered in this connection that as
against the destitute family of the deceased there are
millions of other families which are equally, if not
more destitute. The exception to the rule made in
favour of the family of the deceased employee is in
consideration of the services rendered by him and the
legitimate expectations, and the change in the status
and affairs, of the family engendered by the erstwhile
employment which are suddenly upturned."
The above principles laid down have been repeatedly
reiterated by Hon'ble Supreme Court, in all its subsequent
judgments. The recent being in the case of N.C. Santhosh (supra),
wherein it was, inter alia, reiterated as under:-
(17 of 33)
"14. It is well settled that for all government
vacancies equal opportunity should be provided to all
aspirants as is mandated under Articles 14 and 16 of
the Constitution. However appointment on
compassionate ground offered to a dependant of a
deceased employee is an exception to the said norms.
In Steel Authority of India Limited v. Madhusudan
Das & Ors.: (2008) 15 SCC 560. It was remarked
accordingly that compassionate appointment is a
concession and not a right and the criteria laid down
in the Rules must be satisfied by all aspirant."
In the case of V. Somyashree (supra), it was, inter alia, laid
down as under:-
"7. While considering the submissions made on behalf
of the rival parties a recent decision of this Court in
the case of N.C. Santhosh (Supra) on the
appointment on compassionate ground is required to
be referred to. After considering catena of decisions
of this Court on appointment on compassionate
grounds it is observed and held that appointment to
any public post in the service of the State has to be
made on the basis of principles in accordance with
Articles 14 and 16 of the Constitution of India and the
compassionate appointment is an exception to the
general rule. It is further observed that the
dependent of the deceased Government employee
are made eligible by virtue of the policy on
compassionate appointment and they must fulfill the
norms laid down by the State's policy. It is further
observed and held that the norms prevailing on the
date of the consideration of the application should be
the basis for consideration of claim of compassionate
appointment. A dependent of a government
employee, in the absence of any vested right accruing
on the death of the government employee, can only
demand consideration of his/her application. It is
further observed he/she is, however, entitled to seek
consideration in accordance with the norms as
applicable on the day of death of the Government
employee. The law laid down by this Court in the
aforesaid decision on grant of appointment on
compassionate ground can be summarized 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
(18 of 33)
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."
In The Secretary to Govt. Department of Education
(Primary) & Ors. v. Bheemesh Alias Bheemappa : Civil Appeal No.
7752/2021, decided on 16.12.2021, after noticing the conflict in
few judgments in relation to the applicability of law i.e. whether
the law as applicable on the date of death of government servant
or the date of consideration of the application would apply and the
fact that issue was pending consideration before the Larger Bench,
it was laid down as under:-
"17. Keeping the above in mind, if we critically
analyse the way in which this Court has proceeded to
interpret the applicability of a new or modified
Scheme that comes into force after the death of the
employee, we may notice an interesting feature. In
cases where the benefit under the existing Scheme
was taken away or substituted with a lesser benefit,
this Court directed the application of the new
Scheme. But in cases where the benefits under an
existing Scheme were enlarged by a modified
Scheme after the death of the employee, this Court
applied only the Scheme that was in force on the
date of death of the employee. This is fundamentally
due to the fact that compassionate appointment was
always considered to be an exception to the normal
method of recruitment and perhaps looked down
upon with lesser compassion for the individual and
greater concern for the rule of law.
18. If compassionate appointment is one of the
conditions of service and is made automatic upon the
death of an employee in harness without any kind of
scrutiny whatsoever, the same would be treated as a
vested right in law. But it is not so. Appointment on
compassionate grounds is not automatic, but subject
to strict scrutiny of various parameters including the
financial position of the family, the economic
dependence of the family upon the deceased
employee and the avocation of the other members of
the family. Therefore, no one can claim to have a
vested right for appointment on compassionate
grounds. This is why some of the decisions which we
have tabulated above appear to have interpreted the
applicability of revised Schemes differently, leading to
conflict of opinion. Though there is a conflict as to
(19 of 33)
whether the Scheme in force on the date of death of
the employee would apply or the Scheme in force on
the date of consideration of the application of
appointment on compassionate grounds would apply,
there is certainly no conflict about the underlying
concern reflected in the above decisions. Wherever
the modified Schemes diluted the existing benefits,
this Court applied those benefits, but wherever the
modified Scheme granted larger benefits, the old
Scheme was made applicable.
19. The important aspect about the conflict of opinion
is that it revolves around two dates, namely, (i) date
of death of the employee; and (ii) date of
consideration of the application of the dependant. Out
of these two dates, only one, namely, the date of
death alone is a fixed factor that does not change.
The next date namely the date of consideration of the
claim, is something that depends upon many
variables such as the date of filing of application, the
date of attaining of majority of the claimant and the
date on which the file is put up to the competent
authority. There is no principle of statutory
interpretation which permits a decision on the
applicability of a rule, to be based upon an
indeterminate or variable factor. Let us take for
instance a hypothetical case where 2 Government
servants die in harness on January 01, 2020. Let us
assume that the dependants of these 2 deceased
Government servants make applications for
appointment on 2 different dates say 29.05.2020 and
02.06.2020 and a modified Scheme comes into force
on June 01, 2020. If the date of consideration of the
claim is taken to be the criteria for determining
whether the modified Scheme applies or not, it will
lead to two different results, one in respect of the
person who made the application before June 1, 2020
and another in respect of the person who applied
after June 01, 2020. In other words, if two employees
die on the same date and the dependants of those
employees apply on two different dates, one before
the modified Scheme comes into force and another
thereafter, they will come in for differential treatment
if the date of application and the date of
consideration of the same are taken to be the
deciding factor. A rule of interpretation which
produces different results, depending upon what the
individuals do or do not do, is inconceivable. This is
why, the managements of a few banks, in the cases
tabulated above, have introduced a rule in the
modified scheme itself, which provides for all pending
applications to be decided under the new/
modified scheme. Therefore, we are of the
considered view that the interpretation as to the
applicability of a modified Scheme should depend
only upon a determinate and fixed criteria such as
the date of death and not an indeterminate and
variable factor."
(20 of 33)
Besides the above, in the case of Shashi Kumar (supra), it
was, inter alia, laid down as under:-
"But, where there is a policy, a dependant
member of the family of a deceased employee is
entitled to apply for compassionate appointment
and to seek consideration of the application in
accordance with the terms and conditions which
are prescribed by the State.
.............................................
.............................................
Insofar as the individual facts pertaining to the
respondent are concerned, it has emerged from
the record that the Writ Petition before the High
Court was instituted on 11 May 2015. The
application for compassionate appointment was
submitted on 8 May 2007. On 15 January 2008
the Additional Secretary had required that the
amount realized by way of pension be included in
the income statement of the family. The
respondent waited thereafter for a period in
excess of seven years to move a petition under
Article 226 of the Constitution. In Umesh Kumar
Nagpal (supra), this Court has emphasized that
the basis of a scheme of compassionate
appointment lies in the need of providing
immediate assistance to the family of the
deceased employee. This sense of immediacy is
evidently lost by the delay on the part of the
dependant in seeking compassionate
appointment."
From the above, the principles pertaining to the nature of
claim made by the dependents, its consideration based on the
parameters as laid down in the relevant Rules, that also with the
emphasis that the applicant-dependent must strictly fall within the
parameters as on the date of the death of government servant,
are well established besides the fact that the appointment is
neither a right nor an alternative source of recruitment.
In the present circumstances, though the provision i.e. Rule
2(c) of the Rules of 1996 which defines dependent, stands
amended w.e.f. 28.10.2021, wherein the married daughter has
(21 of 33)
also been included in the definition, subject to certain conditions,
however as the government servants/employees in all the present
cases have died in harness prior to the date of amendment in the
provision, the cases of the applicants-petitioners would be
governed by the unamended provisions and as under the
unamended provision, on account of the stipulation 'unmarried'
daughter in the definition of dependent, they have been rendered
ineligible, the challenge laid by the petitioners, cannot be negated
merely on account of the fact that the provision stands amended
w.e.f. 28.10.2021.
As noticed hereinbefore and has been repeatedly emphasized
by learned counsel for the respondent-State the validity of the
provision on account of the above aspect i.e. exclusion of married
daughter has repeatedly been examined by the Division Benches
of this Court and the said exclusion has been upheld.
A perusal of all the judgments, as noticed hereinbefore and
cited, reveals that in each subsequent matter, the judgment in the
case of Smt. Sumer Kanwar (supra) has been followed.
In the case of Smt. Sumer Kanwar (supra), the Division
Bench, inter alia, came to the following conclusion:-
"5. In our considered opinion, it is not for the Courts
to expand the definition of the dependant. It is
matter of policy. The dependants are defined to be
spouse, son, unmarried or widowed daughter,
adopted son/adopted unmarried daughter, legally
adopted by the deceased Government servant.
Married daughter cannot be said to be dependant on
the deceased employee. The definition of dependant
is with a view to give appointment to spouse, son,
unmarried or widowed daughter, widow, etc. who are
real dependants of the deceased. Such matters are
within the purview of the policy of the State
Government. It is for the State Government to define
such matters and it is not for the Court to widen the
(22 of 33)
scope of the Rules as compassionate appointment
cannot be claimed as a matter of right. The definition
in Rule 2(c) cannot be said to be unconstitutional and
arbitrary in any manner. Exclusion of married
daughter from the purview of dependants is
appropriate. She is not dependant on premarital
family. It is trite law that Courts cannot enlarge scope
of such policy/rules. It is not for the Court to rewrite
the policy/rules. The provision of Rule 2(c) cannot be
said to be illegal or arbitrary in any manner."
It was also observed that appointment cannot be ordered
dehors the scheme, the same is not a source of recruitment and
the following conclusion was drawn:-
"12. Since married daughter is not included in the
definition of dependant as contained in Rule 2(c) of
the Rules of 1996, the Collector, Jaipur has rightly
rejected her application for compassionate
appointment.
13. In view of the aforesaid, we find no ground to
entertain the petition. The definition of dependant
under Rule 2(c) of the Rajasthan Compassionate
Appointment of Dependents of Deceased Government
Servants Rules, 1996 cannot be said to be
unconstitutional or ultra vires in any manner.
Consequently, the writ petition is dismissed."
It would be noticed from the above discussion by the
Division Bench that the Court, while considering the matter and
coming to the conclusion that the definition of the dependent was
a matter of policy, the married daughter, cannot be said to be
dependent on the deceased employee and it is not for the Courts
to widen the scope of the Rules on account of the nature of claim
i.e. compassionate appointment, negated the challenge to the
validity of the Rule.
However, apparently, the issue of exclusion of married
daughter, only on account of her marital status in contradistinction
to that of a married son and/or unmarried daughter, was not
(23 of 33)
examined on the touchstone of Articles 14 to 16 of the
Constitution of India.
The exclusion of married daughter from the definition of
dependent/family, appears to have been of universal application
i.e. across the country as in almost all the States/Government
Regulations providing for compassionate appointment, the married
daughters were excluded from consideration.
The issue with regard to validity of said exclusion, came to
be considered by Allahabad High Court in the case of Smt. Vimla
Srivastava (supra). The Division Bench, inter alia, observed and
came to the following conclusion:-
"The issue before the Court is whether marriage is a
social circumstance which is relevant in defining the
ambit of the expression "family" and whether the fact
that a daughter is married can constitutionally be a
permissible ground to deny her the benefit of
compassionate appointment. The matter can be
looked at from a variety of perspectives. Implicit in
the definition which has been adopted by the state in
Rule 2(c) is an 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.
A son continues to be a son both before and after
marriage. A daughter continues to be a daughter. This
relationship is not effaced either in fact or in law upon
marriage. Marriage does not bring about a severance
of the relationship between a father and mother and
their son or between parents and their daughter.
These relationships are not governed or defined by
marital status. The State has based its defence in its
reply 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 must be
(24 of 33)
held answerable to the recognition of gender identity
under Article 15.
The stand which has been taken by the state in the
counter affidavit proceeds on a paternalistic notion of
the position of a woman in our society and particularly
of the position of a daughter after marriage. The
affidavit postulates that after marriage, a daughter
becomes a member of the family of her husband and
the responsibility for her maintenance solely lies upon
her husband. The second basis which has been
indicated in the affidavit is that in Hindu Law, a
married daughter cannot be considered as dependent
of her father or a dependent of a joint Hindu family.
The assumption that after marriage, a daughter
cannot be said to be a member of the family of her
father or that she ceases to be dependent on her
father irrespective of social circumstances cannot be
countenanced. Our society is governed by
constitutional principles. Marriage cannot be regarded
as a justifiable ground to define and exclude from who
constitutes a member of the family when the state
has adopted a social welfare policy which is grounded
on dependency. The test in matters of compassionate
appointment is a test of dependency within defined
relationships. There are situations where a son of the
deceased government servant may not be in need of
compassionate appointment because the economic
and financial position of the family of the deceased
are not such as to require the grant of compassionate
appointment on a preferential basis. But the
dependency or a lack of dependency is a matter which
is not determined a priori on the basis of whether or
not the son is married. Similarly, whether or not a
daughter of a deceased should be granted
compassionate appointment has to be defined with
reference to whether, on a consideration of all
relevant facts and circumstances, she was dependent
on the deceased government servant. Excluding
daughters purely on the ground of marriage would
constitute an impermissible discrimination and be
violative of Articles 14 and 15 of the Constitution."
..............................................
..............................................
..............................................
"In conclusion, we hold that the exclusion of
married daughters from the ambit of the expression
"family" in Rule 2(c) of the Dying-in-Harness Rules is
illegal and unconstitutional, being violative of Articles
14 and 15 of the Constitution.
We, accordingly, strike down the word 'unmarried'
in Rule 2(c)(iii) of the Dying-in-Harness Rules.
In consequence, we direct that the claim of the
petitioners for compassionate appointment shall be
reconsidered. We clarify that the competent authority
would be at liberty to consider the claim for
compassionate appointment on the basis of all the
(25 of 33)
relevant facts and circumstances and the petitioners
shall not be excluded from consideration only on the
ground of their marital status."
The said judgment, in the case of Smt. Vimla Srivastava
(supra) was noticed by Full Bench of Calcutta High Court, which
inter alia, in the case of Purnima Das (supra), came to the
following conclusion:-
"113. Consequently, the offending provision in the
notification dated April 2, 2008 (governing the cases
of Arpita and Kakali) and February 3, 2009 (governing
the case of Purnima) i.e. the adjective 'unmarried'
before 'daughter', is struck down as violative of the
Constitution. It, however, goes without saying that
after the need for compassionate appointment is
established in accordance with the laid down formula
(which in itself is quite stringent), a daughter who is
married on the date of death of the concerned
Government employee while in service must succeed
in her claim of being entirely dependent on the
earnings of her father/mother (Government
employee) on the date of his/her death and agree to
look after the other family members of the deceased,
if the claim is to be considered further."
The Full Bench of Uttrakhand High Court in the case of
Anjula Singh (supra), on coming to the conclusion that exclusion
of a dependent married daughter while including a dependent
married son in definition of a family in the Regulations relating to
compassionate appointment, amounts to gender discrimination
and is in violation of Article 15 of the Constitution of India instead
of striking down the word 'unmarried', directed that married
daughter shall also be held to fall within the inclusive definition of
the family of the deceased government servant.
The High Court Tripura in the case of Smt. Debashri
Chakraborty (supra), inter alia, referring to the judgment in the
case of Smt. Vimla Srivastava (supra) and Purnima Das (supra),
came to the conclusion that exclusion of married daughters from
(26 of 33)
die-in-harness scheme was unconstitutional and that even a
married daughter would be entitled to make an application for
appointment on compassionate basis, which would be decided on
its own merit within the parameters of the scheme.
The Larger Bench of Madhya Pradesh High Court in the case
of Meenakshi Dubey (supra) came to the conclusion that the
clause in the policy to the extent, the same debars the married
daughter from right of consideration for compassionate
appointment, was violative of Articles 14, 15, 16 and 39(a) of the
Constitution of India.
A Single Judge of Karnataka High Court in the case of
Smt. Bhuvaneshwari V. Puranik (supra), after referring to various
judgments on the said aspect, came to the conclusion that without
a shadow of doubt the words unmarried were discriminatory and
struck down the word unmarried in the Rule.
The said judgment of the learned Single Judge was noticed
by another Single Judge in the State of Karnataka & Ors. v. C.N.
Apporva Shree & Anr.: WP No. 5409/2021 (S-KSAT), decided on
22.03.2021, who dismissed the petition filed by the State of
Karnataka.
Against the said judgment, when the State of Karnataka
approached Hon'ble Supreme Court by filing Special Leave to
Appeal, in State of Karnataka & Ors. v. C.N. Apporva Shree &
Anr.: Special Leave to Appeal (C) No.20166/2021, decided on
17.12.2021, Hon'ble Supreme Court ordered as under:-
"We have heard learned counsel for the
petitioner(s) and have analyzed the impugned
(27 of 33)
judgment. We give our full imprimatur to the
reasoning of the High Court, more so, as even the
rule in question relied upon by the petitioner to deny
a married daughter a job on compassionate grounds
while permitting it to a married son, has been
quashed in the judgment of the Karnataka High Court
in Bhuvaneshwari V. Purani v. State of Karnataka -
(2021) 1 AKR 444 [AIR Online 2020 Kar 2303].
The Special Leave Petition is dismissed."
From the above, it would be seen that Hon'ble Supreme
Court, while dismissing the Special Leave to Appeal made
observations giving its full imprimatur to the reasoning of the High
Court in the case of C.N. Apporva Shree (supra) and noticed that
the denial of job on compassionate basis to a married daughter
while giving such indulgence to a married son has been quashed
in the case of Smt. Bhuvaneshwari V. Puranik (supra).
From the above cited judgments, it would be seen that
practically all the High Courts, after testing the validity of
exclusion of a married daughter from the definition of
dependent/family have unanimously come to the conclusion that
the said exclusion was unconstitutional.
Coming to the submissions made by learned counsel for the
respondent-State seeking to emphasize that the Rule making
authority has deliberately omitted a married daughter from the
definition of dependent as after marriage, a married daughter
would be dependent on her husband and/or her-in-laws. The said
submissions and exclusion is based on an assumption that only as
a consequence of marriage, the married daughter would cease to
be dependent on the deceased government servant and,
therefore, disentitled to be considered for compassionate
appointment.
(28 of 33)
As the only reason indicated is purported lack of presumed
dependence, the said basis, cannot be sustained, inasmuch as,
there may be cases where despite marriage, the daughter for
various reasons may continue to be dependent on the deceased
government servant.
The very assumption that a married daughter, would
invariably and in all cases, would not be dependent on the
government servant is based on surmises, oblivious of the present
day social realities and at the same time including a dependent
married son, while leaving out a dependent married daughter from
the definition, is clearly discriminative.
The Hon'ble Supreme Court in Dr. (Mrs.) Vijaya Manohar
Arbat v. Kashi Rao Rajaram Sawai & Anr.: (1987) 2 SCC 278,
opined that a daughter after marriage does not cease to be a
daughter of a father and mother and did not accept the contention
that a married daughter has no obligation to maintain her parents
even if they are unable to maintain themselves. It was held that it
is moral obligation of the children to maintain their parents and
that Section 125 Cr.P.C. has imposed a liability on both the son
and daughter to maintain their parents, who is unable to maintain
himself or herself.
Further, now under the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007, equal duty on both sons and
daughters to take care and maintain the parents has been placed
and, therefore, the purported assumption in seeking to distinguish
a married son from a married daughter for the purpose of grant of
compassionate appointment, cannot be sustained.
(29 of 33)
Yardstick, for extending the benefit of compassionate
appointment in terms of the Rules is and should be dependency of
the dependents on the deceased government servant and,
therefore, their marital status only should not be an impediment
for consideration on compassionate ground. In fact, the
requirement of the definition quoted hereinbefore even for the
spouse, son and unmarried daughters, requires them to be wholly
dependent on the deceased government servant at the time of
his/her death and, therefore, inclusion of the married daughter in
the definition, would not dilute the said requirement of the Rule.
Further, the marriage by itself cannot be a disqualification
and, therefore, the definition barring a married daughter from
seeking compassionate appointment merely on the ground of her
marriage is apparently arbitrary and violative of Articles 14, 15
and 16(2) of the Constitution of India.
The catena of judgments cited on behalf of the State
essentially are based on the principles for grant of compassionate
appointment, which have all been noticed hereinbefore and qua
which, there is no dispute, which Principles/parameters have to be
strictly followed, even when the married daughter is included in
the definition.
Though the judgment in the case of Miss C.B. Muthamma
(supra) was cited opposing the plea raised by the petitioners. The
observations made in the said judgment, advances the cause of
the petitioners, which read as under:-
"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
(30 of 33)
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 book and Law in Action. And if the
Executive as the surrogate of Parliament, makes rules
in the teeth of Part III, especially when high political
office, even diplomatic assignment has been filled by
women, the inference of die-hard allergy to gender
parity is inevitable.
7. We do not mean to universalise or dogmatise that
men and women are equal in all occupations and all
situations and do not exclude the need to pragmatise
where the requirements of particular 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."
From what has been laid down by various High Courts,
dealing with the exclusion of married daughter from the purview
of grant of compassionate appointment, the opinion essentially is
unanimous that the same is violative of Articles 14 to 16 of the
Constitution of India. Except for the judgments of this Court,
which all have followed the initial judgment in the case of Smt.
Sumer Kanwar (supra), none has cited any other judgment
upholding the exclusion of married daughter from the definition.
Besides the above, the fact that Hon'ble Supreme Court in
the case of C.N. Apporva Shree (supra) has given its full
imprimatur to the reasoning of the High Court and has noticed
(31 of 33)
that the provision denying married daughter a job on
compassionate grounds, has been quashed in the case of
Bhuvaneshwari V. Purani (supra), the proposition holding the
married daughter as eligible for compassionate appointment, has
the sanction of Hon'ble Supreme Court as well.
Hon'ble Supreme Court in the case of The Secretary,
Ministry of Defence v. Babita Puniya & Ors.: (2020) 7 SCC 469,
wherein challenge was laid to the directions of the High Court
ordering that the Short Service Commission Women Officers are
entitled to Permanent Commission at par with Male Short Service
Commission with all consequential benefits, observed as under:-
"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)."
So far as apprehensions expressed by the learned counsel
for the respondent-State and certain other counsel regarding the
consequence of striking down of the word 'unmarried' are
concerned, the same are apparently misplaced, inasmuch as,
merely on account of quashing of the said word 'unmarried' from
the definition, by itself cannot revive the concluded cases wherein
the appointments have already been accorded in terms of the
existing provisions.
Further even after, quashing of the word 'unmarried' from
the definition, the same would apply to the pending cases only as
the likely applicants, qua whom the cause of action had arisen
(32 of 33)
long back even otherwise would not be eligible, in view of
repeated pronouncements of Hon'ble Supreme Court regarding the
purpose of grant of compassionate appointments i.e. for the
purpose of tiding over the immediate requirement, which arises on
account of death of the government servant while in service. In
cases where the government servant has died long back, the
striking down of the word from the definition, by itself would not
provide any fresh cause of action to any of the applicants and,
therefore, the apprehension expressed, has no basis.
From the above discussion, it can be safely concluded that
the use of word 'unmarried' in Rule 2(c) of the Rules of 1996
depriving a married daughter from right of consideration for
compassionate appointment, violates the equality clause and
cannot be countenanced.
Consequently, the reference is disposed of. The re-framed
question in the reference, is answered as under:-
The provision of Rule 2(c) of the Rules of 1996, which
excludes the married daughter from definition of dependent prior
to its amendment vide notification dated 28.10.2021, is
discriminatory and violative of Articles 14 to 16 of the Constitution
of India and as such, the word 'unmarried' from the definition of
'dependent', is struck down. Further, in Rule 5 of the Rules of
1996 also the word unmarried daughters/adopted unmarried
daughter, shall be read as daughters/adopted daughter.
The judgment in the case of Sumer Kanwar (supra) and all
other judgments, which have followed the judgment in the case of
(33 of 33)
Sumer Kanwar (supra), upholding the denial of compassionate
appointment to married daughter, are overruled.
As a consequence, it is directed that on account of striking
down of the word 'unmarried' from the definition - (i) the same
shall not effect any case, wherein compassionate appointment has
already been granted under the provisions as they stood before
this order; (ii) the same by itself would not provide a cause of
action to any applicant and would apply to cases which are either
pending before the competent authority and/or to the cases where
litigation is pending on the date of this order only; (iii) the
provisions and other requirements of the definition regarding the
applicant being wholly dependent on the deceased government
servant at the time of his/her death would be scrupulously
applied; (iv) all the parameters as laid down by Hon'ble Supreme
Court for grant of compassionate appointment, shall also be
scrupulously followed and that (v) all other provisions of the Rules
except the inclusion of the 'married daughter' in the definition of
'dependent', shall have full application.
The matters be now placed before the Division Bench for
appropriate orders.
(ARUN BHANSALI),J. (VIJAY BISHNOI),J. (SANDEEP MEHTA),J.
PKS/-
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