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2003 DIGILAW 93 (CAL)

Usha Singh v. State of West Bengal

2003-02-28

GIRISH CHANDRA GUPTA

body2003
JUDGMENT One Sri Ganga Dayal Singh was an assistant teacher of Janata Vidyalaya situate at Calcutta. He died on 25.9.1997 leaving him surviving his widow Smt. Saraswati Devi and his only child Smt. Usha Singh, an unmarried daughter. On 21.6.1998 Usha applied for appointment on compassionate ground in died-in-harness category. The Primary School Council by its letter dated 24.3.1999 directed the petitioner Usha to appear for an interview on 6.4.1999 together with the requisite testimonials for appointment in the died-in-harness category. The concerned Headmaster of the school and the Sub-Inspector of Schools were also directed to remain present at the time of interview to be held on 6.4.1999. Case of the petitioner is that on the date of interview after being fully satisfied with her candidature she was told by the authority that necessary recommendation would be forwarded to the Chairman seeking approval for appointment of the petitioner in the aforesaid category. She has since then been waiting for an appointment. In the month of April 2001 she got married to one Sri Indra Mohan Singh. She has however been looking after her widowed mother, since there is nobody else to look after her, with whatever money she earns by giving private tuition. By a letter 22.5.2002 the Chairman of the Primary School Council purported to inform the petitioner as follows:– “In connection with the subject mentioned above, the undersigned has to inform that her case has been rejected by the Director of School Education, vide memo No. 555-SC/P dated 1.4.2002. It was stated in that memo that a married daughter of a teacher who died-in-harness is not considered as a “Ward” as per existing rules.” 2. It is this order dated 22.5.2002 rejecting the candidature of the petitioner on the ground that a married daughter is not eligible for appointment in the died-in-harness category which is under challenge. She has also prayed for a writ in the nature of mandamus directing the respondent authorities to approve the recommendation of the Council for appointment of the petitioner to the post of an assistant teacher. 3. Directions for affidavit were issued on 17.7.2002. Copy of an affidavit-in-opposition used by the Council appears to have been served upon the petitioner but no such affidavit was filed with the Court even at the time of hearing of the petition. Mr. 3. Directions for affidavit were issued on 17.7.2002. Copy of an affidavit-in-opposition used by the Council appears to have been served upon the petitioner but no such affidavit was filed with the Court even at the time of hearing of the petition. Mr. Tulsi Das Maity, learned Advocate appearing for the Council reiterated the stand of his client that a married daughter is not entitled to be appointed on compassionate ground in the died-in-harness category according to the rules governing the field. It would be apposite to set out the rules:– “14. Appointment on compassionate ground.– The Council may appoint primary teachers with the approval of the Director on compassionate ground in the following cases where in the opinion of the Council, the cases deserve compassionate consideration:– (a) when a teacher dies in harness before the date of his superannuation leaving a family which, in the opinion of the Council, shall be in extreme economic hardship. (1) the unemployed widowed wife, or (2) the unemployed son, or (3) the unemployed unmarried daughter, of the deceased primary teacher possessing required educational qualifications as laid down in sub-rules (a) and (b) of Rule 6 and found eligible to teach, may make within two years from the date of such death a prayer in writing to the Council for appointment as primary teacher on compassionate ground, provided that only one member of a deceased primary teacher's family may be appointed on compassionate consideration; (b) when a primary teacher is declared permanently incapacitated by the competent medical board set up according to the procedure laid down in the Government order and he has been allowed to retire at least two years before he attains the age of superannuation and his family is in extreme economic hardship after such retirement, (1) the unemployed wife, or (2) incapacitated and prematurely retired primary teacher possessing the required as laid down in sub-rules (a) and (b) of Rule 6. Educational qualifications/and found eligible to teach, may make within two years from the date of such retirement, a prayer in writing to the Council for appointment as primary teacher on compassionate ground: Provided that only one member of the family of the incapacitated and prematurely retired primary teacher possessing the required educational qualifications and found eligible to teach, may be appointed on compassionate ground. 15. Maintenance of roster. 15. Maintenance of roster. – (a) The Council shall maintain separate rosters for the cases as referred to in sub-rules (a) and (b) of Rule 14 and appointment shall be offered, after observing all formalities, to the senior most in such roster. In no case, such appointment on compassionate ground shall be made exceeding ten percent of the existing vacancies in a calendar year. (b) In the cases of appointment under sub-rules (a) and (b) of Rule 14, reference to the employment exchange and preparation of panel shall not be necessary. 16. Posting on appointment.– The primary teachers shall be posted in primary schools within the jurisdiction of the Council according to vacancies as determined by the Council.” (Relevant portion has been underlined by me for convenience) 4. It may be recorded that the petitioner is otherwise eligible for an appointment in the died-in-harness category and there is no dispute with regard thereto. 5. It has been contended by Mr. Arabinda Chatterjee, learned Advocate appearing for the petitioner that the condition with regard to eligibility in the case of a daughter that she should be unmarried is relatable to the date of the application or at any rate the date of the interview and that a subsequent marriage cannot disentitle the candidate for an appointment in the died-in-harness category. Mr. Maity maintained that appointment shall not be given if on the date of appointment she is already married. He however conceded that there is no restriction against the daughter getting married subsequent to the appointment but if she is already married appointment shall not be given. He submitted that the petitioner is admittedly a married woman. Therefore, she is clearly not eligible for appointment. 6. After considering the respective submissions of the learned Counsel and considering the concerned rules quoted here in above this Court is of the view that the correct interpretation is that in order to be eligible for an appointment in the died-in-harness category the daughter must be an unmarried daughter on the date of death of the bread winner. The rationale of the rule is that she •must have been dependent on the income of the deceased so that extreme economic hardship is caused to her and other family members by the untimely death of the concerned teacher. This Court is not inclined to read in the rules quoted hereinabove a restraint upon marriage. The rationale of the rule is that she •must have been dependent on the income of the deceased so that extreme economic hardship is caused to her and other family members by the untimely death of the concerned teacher. This Court is not inclined to read in the rules quoted hereinabove a restraint upon marriage. Rule 15 would go to show that the Council shall maintain a roster of the eligible candidates for appointment in the died-in-harness category and shall provide appointment on the basis of seniority in the roster and that appointment on the compassionate ground shall not exceed 10 per cent of the existing vacancy in a calendar year. This means that there is no guarantee that the appointment shall be made immediately upon the death or even immediately upon the applicant being found eligible. He/she has to a wait his/her turn in the roster, which may take any length of time, may be 2 years, may be 3 years or may be even more. For instance, in the case in hand the petitioner was interviewed on 6.4.1999 and was recommended for appointment. More than three years thereafter her case has been rejected on the ground that she got married in the meantime. The way the Council acted and the submission which the learned Advocate for the Council advanced if accepted would leave no manner of doubt that the rules do in fact contain a restraint upon marriage. If this were the correct interpretation, then the restraint is bound to be struck down on the ground that it is opposed to the fundamental rights guaranteed to the citizen, it is patently illegal and opposed to the public policy. 7. No authority need be cited for the proposition that right to marry is a necessary concomitant of right to life guaranteed under Article 21 of the Constitution. “Right to life includes right to lead a healthy life so as to enjoy all the faculties of the human body in their prime condition”. (See in this regard Mr. X v. Hospital Z, reported in 1998 (8) SCC 296 ). 8. “Right to life includes right to lead a healthy life so as to enjoy all the faculties of the human body in their prime condition”. (See in this regard Mr. X v. Hospital Z, reported in 1998 (8) SCC 296 ). 8. In Re : Michaelham's Will Trusts reported in (1963) 2 All ER 188, sitting in the Chancery Division, Lord Buckley stated the law with regard to restraint of marriage as follows:–– “A contract which is in general restraint of marriage is unenforceable on the grounds of public policy, whether it contains an express undertaking that the subject will not marry, or whether it is merely a contract of a kind which, on financial or other grounds, will tend to discourage the subject from marrying.” 9. Section 26 of the Indian Contract provides as follows:– “Every agreement in restraint of the marriage of any person, other than a minor, is void.” 10. The rationale of the rules quoted hereinabove is that the son or the daughter who applies for an appointment in the died-in-harness category should have been dependent upon the income of the deceased so that his untimely death left him/her/them in extreme economic hardship. The Avowed object of the rules is to provide relief to the family which is in extreme financial hardship and for this purpose an unemployed son can apply whether married or unmarried. Why then is the restriction upon a daughter that she should be unmarried in order to be eligible for appointment? An unmarried daughter can be a divorcee fully dependent upon the father. She may have been an abandoned wife again fully dependent upon the father. She may have been married to an indigent husband so that both the married daughter and the son-in-law would have been dependent upon the income of the breadwinner whose death led them to extreme financial hardship. The concept of a “Ghar Jamai” (one who lives at one's father-in-law's house) is well accepted in Indian society particularly in those families where there is no son. There may be many other probabilities in which a married daughter may be fully dependent upon the income of her father so that death of the father would leave her and the rest of the members of the family in extreme economic hardship. Why should then a distinction be made between a son and a married daughter? There may be many other probabilities in which a married daughter may be fully dependent upon the income of her father so that death of the father would leave her and the rest of the members of the family in extreme economic hardship. Why should then a distinction be made between a son and a married daughter? An unemployed married son according to the rules is eligible but an unemployed married daughter is ineligible irrespective of the fact that they are or may be similarly placed and equally distressed financially by the death of the father. Take the case of a teacher who died in harness leaving him surviving his illiterate widow, an unqualified married son and a qualified married daughter who were all dependent on the income of the deceased. Following the rule as it is interpreted by the Council and its learned Advocate, this family cannot be helped. Is this the intended result of the rule? Or does this interpretation advance the object of the rule? What is the basis for the qualification which debars the married daughter? And what is the nexus between the qualification and the object sought to be achieved? In my view, there is none. If 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 Sa vita v. Union of India reported in 1996 (2) SCC 380 wherein Their Lordships quoted with approval a common saying; “A son is a son until he gets a wife. A daughter is a daughter throughout her life”. 11. I am therefore inclined to hold that the discrimination made by the aforesaid rules between a married son and a married daughter only on the basis of sex in order to be eligible for appointment in the died-in-harness category is unconstitutional and offends Article 15 when it provides that an unemployed married son is eligible but an unemployed married daughter is not. 12. Similar question arose in the case of Savita v. Union of India reported in 1996 (2) SCC 380 . 12. Similar question arose in the case of Savita v. Union of India reported in 1996 (2) SCC 380 . In that case the concerned circular issued by the Ministry of Railways provided that a married daughter cannot claim regularisation of the official accommodation upon retirement of the parent. It would be useful to set out the circular in extenso:– “The respondents in defence rely upon the Railway Board Circular dated 11.8.1992, whereunder regularisation is permitted on terms. The operative part thereof reads as follows: “Reference Railway Ministry's letters No. E(G)82 R 1-23 dated 27.12.1982 and E(G)85 R 1-9 dated 15.1.1990 as clarified vide their letters No. E(G) 90 R 1-11 dated 15.3.1991 and 1.7.1991, conveying instructions that when a railway servant who is an allottee of railway accommodation retires from service, his/her son, unmarried daughter, wife, husband or father as the case may be, may be allotted railway accommodation on out of turn basis subject to fulfillment of prescribed condition. The Ministry of Railways has reviewed the matter and in supersession of the instructions vide their letter No. E(G)82 R dated 27.12.1982 have decided to extend the scope of this concession to the married daughter of a retiring official, in case he does not have any son or in case where the married daughter is the only person who is prepared to maintain the parent(s) and the sons are not in a position to do so (e.g. minor sons). This will be subject to the conditions already prescribed which are applicable to the other eligible wards seeking such concessions. The decision communicated above will also be equally applicable in the case of death/medical unfitness.” 13. Their Lordships struck down the circular stating the law as follows :– “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.” 14. Gender-bias is to be abhorred and condemned unless there are compelling reasons not to do so. Gender-bias is to be abhorred and condemned unless there are compelling reasons not to do so. Reference in this regard can be made to the case of Valsama Paul v. Cochin University, reported in 1996 (3) SCC 545 wherein Their Lordships reiterated the law as of date as follows :–– “Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Convention for Elimination of all forms of Discrimination Against Women (for short, “CEDAW”) was ratified by the UNO on 18.12.1979 and the Government of India had ratified as an active participant on 19.6.1993 acceded to CEDAW and reiterated that discrimination against women violates the principles of equality of rights and respect for human dignity and it is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country, it hampers the growth of the personality from society and family, making more difficult for the full development of potentialities of women in the service of the respective countries and of humanity.” “Establishment of a new international economic order based on equality and justice will contribute significantly towards the promotion of equality between men and women etc. 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 of impairing or nullifying the recognised enjoyment or exercise by women, irrespective of their marital status, on the 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) enjoins upon 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 upon the State 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 upon the 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.” 15. “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 an integral part of the Constitution of India and the Human Rights Act and became enforceable. Section 12 of the 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.” “Though the Government of India kept its reservations on Article 5(e), 16 (1), 16 (2) and 29 of CEDAW, they bear little consequence in view of the fundamental rights in Articles 15 (1) and (3) and Article 21 and the Directive Principles of the Constitution.” 16. For the reasons aforesaid the qualification to be found in Rule 14 quoted hereinabove restricting the eligibility for appointment in the died-in-harness category only to an unmarried daughter is struck down. The word “unmarried” to be found in Rule 14(a) is struck down so that an unemployed daughter shall be eligible as much as an unemployed son is eligible. It would however be open to the appropriate authority to frame rules in the light of this judgment. Accordingly the impugned order, a copy whereof is Annexure P-3 to the writ petition, is set aside. There will also be an order in terms of prayer (b). In the facts of this case there will be no order as to costs. Let urgent xerox certified copy of this order, if applied for, be given to the respective parties as early as possible.