THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
Dated : 4th May, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.28 of 2018
Petitioner : Sarada Gautam
versus
Respondents : The State of Sikkim and Others
Application under Articles 226/227 of the Constitution of India
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Appearance
Mr. A. K. Upadhyaya, Senior Advocate (Legal Aid Counsel) with Ms.
Gita Bista, Advocate (Legal Aid Counsel) for the Petitioner.
Dr. Doma T. Bhutia, Additional Advocate General with Ms. Pema
Bhutia and Mr. Shakil Raj Karki, Assistant Government Advocates
for the State-Respondents No.1 to 2.
Ms. K. D. Bhutia, Advocate (Legal Aid Counsel) for the Respondent
No.3.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The apple of discord herein is the entitlement to
Government service, granted in lieu of land donated by the father
of the Petitioner, who is the father-in-law of the Respondent No.3,
with both the Petitioner and Respondent No.3 staking claim to the
service, based on a Government Scheme known as "Guidelines for
appointment of Land Donors" of the State-Respondent No.2, the
Human Resource and Development Department, Government of
Sikkim.
2. The short facts leading to the dissension, is, that, one
Narapati Gautam (hereinafter, the "donor"), on 19-01-2009,
donated his self acquired land, bearing plot no.257, to the State-
Respondent No.2 for the establishment of "Sripatam Sanskrit
Patshala, South Sikkim". The State-Respondent No.2 apparently WP(C) No.28 of 2018 2
Sarada Gautam vs. The State of Sikkim and Others
issued a Scheme known as the "Guidelines for appointment of Land
Donors" (undated), on the basis of which, on 25-07-2013, the
donor petitioned the Government requesting that his daughter, the
Petitioner, be appointed to the post of Peon, under the Human
Resource and Development Department (now Education
Department) or any other Department. The personal details of the
Petitioner were furnished in his Petition which inter alia mentioned
that she is a bona fide Sikkimese, holder of Certificate of
Identification (C.O.I), belongs to the Below Poverty Line (BPL)
category, and that no one in the donor‟s family was serving in the
Government. Pursuant thereto, the Panchayat of the area on 12-
08-2013 issued a certificate claiming to have no objection to the
proposal. The School Managing Committee of Sripatam Sanskrit
Patshala also certified (undated) that, a plot of land had been
donated by the donor for construction of the said "Patshala", in lieu
of which he had sought appointment of the Petitioner as a Peon,
which had not materialised till then. Pursuant thereto, on 31-01-
2017, vide Office Order No.2153/HRDD/ADM, the Petitioner along
with fourteen others were appointed as Peons in various schools,
under the Human Resource Development Department, on a
consolidated pay of ₹ 5,500/- (Rupees five thousand and five
hundred) only, each, per month. The Petitioner accordingly joined
her place of posting on 13-02-2017. On 01-06-2017, the
Respondent No.3 filed an objection before the State-Respondent
No.2, complaining against the "illegal appointment" of the
Petitioner in the post of school Peon, inter alia on grounds that,
despite the Petitioner having withdrawn her Petition for the post of
Peon, the Petition of Respondent No.3 was rejected. On 03-06-
2017, the donor filed a representation to the State-Respondent WP(C) No.28 of 2018 3
Sarada Gautam vs. The State of Sikkim and Others
No.2 submitting therein that, his youngest daughter had been
"rightly employed" in the school, in terms of the Government
Scheme and he along with his family members had issued a "No
Objection Certificate" (N.O.C), in this context. He also requested
that there should be no interference in her appointment and she
should not be ousted from the post. In the teeth of his
representation, on 12-05-2017 the State-Respondent No.2 sought
a written explanation from the Petitioner, as to why her services
should not be terminated from the date of notice as per the norms
of the Land Donors Scheme. On 03-06-2017, she submitted her
response stating inter alia that, her brothers were employed and
her father had partitioned his landed property, of which she was
given no share, the employment being her share. On 01-08-2017,
nevertheless, the appointment of the Petitioner came to be
cancelled, with immediate effect. Hence, the instant Writ Petition
inter alia praying that, the order of dismissal be set aside and
Clause 4 of the Guidelines for appointment be struck down as
discriminatory.
3. Learned Senior Counsel for the Petitioner contended
that Clause 4 of the said Scheme is discriminatory as it excludes
married daughters from the ambit of Government employment,
even when the land is donated by their father or by any other
person to whom they are legal heirs. That, despite the donor, her
father, having categorically nominated the Petitioner for
Government service, in lieu of the land donated by him, the State-
Respondent No.2 ousted the Petitioner from service based on the
discriminatory scheme. That, not only is she a C.O.I holder of
Sikkim but she is also married to a Sikkimese C.O.I holder. That,
in light of the above circumstances, Clause 4 of the Guidelines be WP(C) No.28 of 2018 4
Sarada Gautam vs. The State of Sikkim and Others
struck down, the order of dismissal be revoked and the Petitioner
be reinstated in service with entire arrears of salary and
increments as applicable during the period be paid to her.
4. Stridently repudiating the arguments above, Learned
Counsel for the Respondent No.3 submitted that, the husband of
the Petitioner was already employed as a Headmaster in a
Government school and therefore the Petitioner did not fall within
the umbrella of the BPL category, the category to which preference
is to be given for employment under Clause 6 of the said
Guidelines. That, if the Scheme is to be struck down as ultra vires,
as sought for by the Petitioner then her appointment would also be
without force as she had been appointed under the said Scheme.
Admitting that there was no letter of the donor nominating his
daughter-in-law for employment, it was contended that her
appointment is necessitated on account of the fact that her
husband is employed in a pharmaceutical company and is earning
₹ 9,000/- (Rupees nine thousand) only, per month, [bringing them
within the ambit of Clause 6 (supra)] contrary to ₹ 15,000/-
(Rupees fifteen thousand) only, per month, that the Petitioner has
alleged that he earns. Hence, the Petition be dismissed.
5. Learned Additional Advocate General for the State-
Respondent Nos.1 and 2 submitted that the Petitioner was
appointed in deference to the Petition dated 25-07-2013,
submitted by the donor, to the Government, which was later
objected to by his son and Respondent No.3. The Petitioner‟s
appointment was withdrawn on the objection raised by the
Respondent No.3, in view of the fact that the Guidelines at Clause
4 specified that married daughters are not entitled to such
appointment. Admitting that the Guidelines have no force of law, it WP(C) No.28 of 2018 5
Sarada Gautam vs. The State of Sikkim and Others
was contended that the issue is now in fact a family dispute in
which the State-Respondents do not seek to be embroiled. That,
should the parties decide who should be appointed, then the
appointment will be issued to the said person.
6. The only question that requires determination by this
Court is; Whether the Petitioner‟s appointment under the Clause 4
of the Guidelines for appointment of Land Donors framed by the
Respondent No.2-Department is to be struck down as being
discriminatory.
(i) The Guidelines (Annexure R-1) are extracted herein for
quick reference;
"GUIDELINES FOR APPOINTMENT OF LAND DONORS
1. Essential Criteria for appointment :
a) Land should be registered in the name of school/HRDD, copy of Land Parcha to be enclosed.
b) Filled in Verification form mandatory
c) Family NOC
d) Marriage/Unmarried certificate compulsory in case of women candidates.
e) All other necessary documents (COI, School certificate, employment card etc.))
2. Post offered: Group „D‟ (Peon, Nightguard for males only and Safaikarmachari- whichever is vacant)
3. Appointments to be made in concerned school only
4. Nominees/other than legal heirs of land donors including married daughters are not entitled for appointment. All such applications stands rejected.
5. In case of clear cases where there is no vacancy in concerned school, appointment will be withheld till availability of clear vacancy.
6. Preference shall be given to applicants hailing from BPL families and such families having no member employed in Govt. service.
7. Decision to be made regarding applicants from schools that are closed due to poor enrolment.
8. Multiple Applicants All such applications shall be forwarded to concerned SMCs. The SMC may nominate one applicant only and forward his/her application through concerned Joint Director for appointment.
The following criteria may be adopted for arriving at a decision;
WP(C) No.28 of 2018 6
Sarada Gautam vs. The State of Sikkim and Others
- Applicant from economically weaker family or family that does not have any earning member may be given preference.
- Monetary compensation may be arranged from school level or a written assurance for allotting all construction/civil works to those who surrenders the claim.
- Encouraging the donors to voluntarily surrender for greater good of school family.
- The candidate who have donated the largest chunk may be given preference.
- Any other criteria deemed fit.
If the SMC fails to solve the issue concerned Joint Director may be approached. And if the matters still remains unsolved, it may be forwarded to the head office for further course of action.
All multiple cases to be finalized and names of selected donor to be forwarded to the head office latest by 30th Nov. 2016"
(emphasis supplied)
7. In Narendra Kumar Maheshwari vs. Union of India and 1 Others the Supreme Court explained that Guidelines are issued by
Governments and statutory authorities in various types of
situations. Where such Guidelines are intended to clarify or
implement the conditions and requirements precedent to the
exercise of certain rights, conferred in favour of citizens or persons
and a deviation therefrom directly affects the rights so vested, the
persons whose rights are affected have a clear right to approach
the court for relief. Sometimes Guidelines control the choice of
persons competing with one another for the grant of benefits,
largesses or favours and if the Guidelines are departed from
without rhyme or reason, an arbitrary discrimination may result
which may call for judicial review. Guidelines, by their very nature,
do not fall into the category of legislation, direct, subordinate or
ancillary. They have only an advisory role to play and non-
adherence to or deviation from them is necessarily and implicitly
permissible if the circumstances of any particular fact or law
1 1990 (Supp) SCC 440 WP(C) No.28 of 2018 7
Sarada Gautam vs. The State of Sikkim and Others
situation warrants the same. Judicial control takes over only where
the deviation either involves arbitrariness or discrimination or is so
fundamental as to undermine a basic public purpose which the
Guidelines and the statute under which they are issued are
intended to achieve.
8. The scope and ambit of Guidelines have been succinctly
delineated supra hence I refrain from further elucidation.
(i) Clause 4 of the Guidelines supra provides as follows;
"4. Nominees/other than legal heirs of land donors including married daughters are not entitled for appointment. All such applications stands rejected."
This clause prima facie is discriminatory and regressive, and
is a glaring failure to recognize a married daughters‟ right as the
legal heir of her father. In other words, it removes the married
daughter from the ambit of being a legal heir of her father only by
virtue of her marital status. An exemplary progress in legislation
and mindset is manifested in Section 6 of the Hindu Succession
Act, 1956, which was amended in the year 2005, conferring the
status of a coparcener to the daughter of a male Hindu. The
Section stipulates that on and from the commencement of the
amended Act of 2005, the daughter of a coparcener shall by birth
become a coparcener in her own right in the same manner as a
son. By virtue of the new provision, a daughter of a coparcener in
a joint Hindu family governed by the Mitakshara law now becomes
a coparcener in her own right and thus enjoys rights equal to those
hitherto enjoyed by a son of a coparcener. The implications of this
fundamental change are wide. Since a daughter now stands on an
equal footing with the sons of a coparcener, she is now invested
with all the rights, including the right to seek partition of a WP(C) No.28 of 2018 8
Sarada Gautam vs. The State of Sikkim and Others
coparcenary property [See Mulla Hindu Law -- 23rd Edition --
LexisNexis].
9. This provision is being emphasised only for the purpose
of highlighting the principle of equality that it embodies between all
children of a male Hindu after the amendment. When such
progressive legislation is being inserted to address inequalities
between male and female legal heirs, this Court records its
consternation with regard to the inequality Clause, being Clause 4
of the Guidelines (supra), which seeks to perpetuate discrimination
on gender and short-changes a daughter only on account of her
gender and marital status. Besides the donor vide his letter dated
25-07-2013 has specified his choice for appointment in the post of
Peon and sought the appointment of the Petitioner, in lieu of his
donation. On 03-06-2017 he has reiterated his option and urged
that his daughter be allowed to continue in service, irrespective of
any objection. The objection appears to be an oblique reference to
the Petition filed by the Respondent No.3 on 01-06-2017. No proof
has been furnished with regard to the BPL status of the
Respondent No.3 which however does not even merit
consideration, in light of the Petition of the donor. There is also no
proof that the Petitioner had withdrawn her Petition seeking
appointment, as claimed by Respondent No.3, which therefore is a
false statement. Despite the preference flagged by the donor the
State-Respondent No.2 decided to remove the Petitioner from
service by relying on a Clause which places the married daughter
on a back burner. The argument of Learned Counsel for
Respondent No.3 that, should the Scheme be struck down as ultra
vires, the appointment of the Petitioner would have no legs to
stand in an erroneous understanding of the arguments advanced WP(C) No.28 of 2018 9
Sarada Gautam vs. The State of Sikkim and Others
by the Petitioner. The Petitioner‟s contention is that Clause 4 of
the Guidelines requires to be struck down as it exhibits
discrimination.
10. In my considered view, there is no fathomable reason,
nor is one advanced by the State-Respondents, as to why married
daughters should be excluded from the appointment in
Government service under the Guidelines (supra). The preference
of the donor and his recommendation has to be afforded due
deference and given effect to by the State-Respondents.
11. On the cornerstone of the foregoing discussions, I am
of the considered opinion that Clause 4 of the Guidelines (supra)
being discriminatory and perpetuating inequality deserves to be
and is accordingly struck down.
12. The order of dismissal dated 01-08-2017, is quashed
and set aside.
13. Writ Petition is allowed.
14. It is ordered that the Petitioner be reinstated in service
with immediate effect.
15. All arrears of salary and other dues that she is entitled
to and that have accrued to her in the interregnum, during her
dismissal, be paid to her.
( Meenakshi Madan Rai ) Judge 04-05-2023
Approved for reporting : Yes
ds/sdl
