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2015 DIGILAW 1516 (GAU)

Nandini Kalita v. State of Assam

2015-12-10

UJJAL BHUYAN

body2015
ORDER Ujjal Bhuyan, J. (Oral) - Heard Mr. I. Choudhury, learned counsel for the petitioner, Mr. J.I. Borbhuiya, learned Standing Counsel, Public Health Engineering (PHE) Department and Mr. H.K. Mahanta, learned Standing Counsel, Personnel Department. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a declaration that the Office Memorandum (OM) dated 02.03.2009 is violative of Article 14 of the Constitution of India on the ground that it excludes married daughter of a deceased Government servant from compassionate appointment and consequently seeks quashing of the same. Petitioner also seeks a direction to the respondents to appoint her on compassionate ground. 3. Facts of the case may be briefly narrated. 4. Petitioner's father Nripen Kalita was a Government servant. He served as an Upper Division Assistant (UDA) in the office of the Superintending Engineer, PHE, Tezpur Circle. Unfortunately, he died in harness on 09.02.2010. 5. Petitioner is the only child of the deceased Government servant. Because of the sudden death of the Government servant, petitioner and her mother faced severe financial hardship. To tide over such financial hardship, petitioner submitted application before the authority seeking appointment on compassionate ground. Be it stated that petitioner is a graduate and, therefore, eligible to be appointed in a grade-III post. Application of the petitioner was forwarded by the Superintending Engineer, Tezpur PHE Circle to the Deputy Commissioner, Sonitpur district vide the forwarding letter dated 15.06.2010. It is stated that case of the petitioner was considered by the District Level Committee (DLC), Sonitpur, in its meeting held on 08.09.2010 and after due consideration, DLC recommended her appointment on compassionate ground. Recommendation of the DLC was thereafter placed before the State Level Committee (SLC). In its meeting held on 16.06.2012, SLC considered the case of the petitioner and thereafter approved her appointment on compassionate ground as Junior Assistant, which is a grade-III post, in the establishment of Superintending Engineer, Tezpur PHE Circle. 6. Police verification of the petitioner was also carried out in anticipation of her appointment which was conveyed to the Superintending Engineer by the Superintendent of Police (DSB), Sonitpur, on 04.10.2012 stating that nothing adverse was found in respect of the petitioner. 7. Notwithstanding the above, appointment of the petitioner was not forthcoming. Representation submitted by the petitioner was also not responded to. 8. 7. Notwithstanding the above, appointment of the petitioner was not forthcoming. Representation submitted by the petitioner was also not responded to. 8. At this stage, petitioner approached this Court by filing WP(C) No.1721/2013, which was, however, dismissed as not pressed on 03.02.2014. 9. According to the petitioner, she was informed thereafter that as she got married in the meanwhile, she would not be entitled to the benefit of compassionate appointment in view of the OM dated 02.03.2009 which specifically mentioned that benefit of compassionate appointment would be extended only to unmarried daughter or adopted unmarried daughter of a Government servant. 10. Aggrieved, the present writ petition has been filed seeking the relief as indicated above. 11. Respondent No.4, i.e., Superintending Engineer, Tezpur PHE Circle, has filed affidavit. While claim of the petitioner to compassionate appointment has not been disputed, it is, however, stated that at the time of appointment, petitioner appeared in his office on 03.10.2012 along with her husband and disclosed that she was married. It was at that stage that respondent No.4 sought clarification from the Government whether petitioner could be appointed on compassionate ground in view of her marital status. Petitioner was thereafter informed by the Deputy Secretary of the PHE Department vide letter dated 09.04.2013 that appointment on compassionate ground could not be given to the class of people mentioned in the OM dated 02.03.2009 including married daughter of a deceased employee. Petitioner being a married daughter of a deceased Government servant is not entitled to be appointed on compassionate ground as per views expressed by the Legal Remembrancer, Assam. Therefore, respondent No.4 has contended that not providing appointment to the petitioner is justified and no interference is called for. 12. During pendency of this proceeding, Mr. Mahanta, learned Standing Counsel, Personnel Department, submitted before the Court on 02.09.2015 that a fresh OM dated 01.06.2015 has been issued by the Personnel (B) Department, Govt. of Assam, whereby distinction between married and unmarried daughter of deceased Government servant has been removed. As per the OM dated 01.06.2015, a married daughter of a deceased Government servant would also be entitled to a consideration for compassionate appointment. 13. Mr. of Assam, whereby distinction between married and unmarried daughter of deceased Government servant has been removed. As per the OM dated 01.06.2015, a married daughter of a deceased Government servant would also be entitled to a consideration for compassionate appointment. 13. Mr. Choudhury, Learned counsel for the petitioner, submits that since the OM dated 01.06.2015 has clarified the matter, the exclusion of married daughters from consideration for compassionate appointment as per OM dated 02.03.2009 would now stand obliterated and accordingly necessary direction may be issued for compassionate appointment of the petitioner whose case for compassionate appointment has been found to be deserving by the DLC as well as by the SLC. In any case, he submits that distinction created by the OM dated 02.03.2009 between married and unmarried daughters of a deceased Government servant and excluding married daughters from consideration for compassionate appointment is wholly unreasonable, arbitrary and violative of Article 14 of the Constitution of India. He submits that if necessary, OM dated 01.06.2015 should be held to be retrospective in operation since the said OM lays down beneficial provision to benefit a class of citizens. In this connection he has placed reliance on a decision of the Apex Court in the case of Vijay V. State of Maharashtra, reported in (2000) 6 SCC 289. 14. Mr. Borbhuiya, learned Standing Counsel, PHE Department, submits that operation of OM dated 01.06.2015 would be prospective in nature. Case of the petitioner is covered by the OM dated 02.03.2009 which excludes married daughters from compassionate appointment. Since case of the petitioner would stand excluded by operation of OM dated 02.03.2009, she would not get the benefit of compassionate appointment as per approval of the SLC. Giving retrospective operation to OM dated 01.06.2015 would not only be legally impermissible but may lead to reopening of a number of cases, which were considered in terms of the earlier OM dated 02.03.2009. He however submits that in view of the change in the norms and coming into force of OM dated 01.06.2015, case of the petitioner may perhaps be considered afresh under the said OM. 15. Mr. Mahanta, learned Standing Counsel, Personnel Department, submits that role of Personnel Department in this matter is limited. Personnel Department had examined the earlier OM dated 02.03.2009 and after due consultation, had issued the subsequent OM dated 01.06.2015, which is currently holding the field. 15. Mr. Mahanta, learned Standing Counsel, Personnel Department, submits that role of Personnel Department in this matter is limited. Personnel Department had examined the earlier OM dated 02.03.2009 and after due consultation, had issued the subsequent OM dated 01.06.2015, which is currently holding the field. As per this OM, distinction between unmarried and married daughter, which was present in the earlier OM dated 02.03.2009, has been removed. Case of the petitioner may now be considered in terms of OM dated 01.06.2015. 16. Submissions made by learned counsel for the parties have received the due consideration of the Court. 17. At the outset, it may be noted that respondents have not disputed the claim of the petitioner to compassionate appointment on merit. Only objection is because of her marital status. As mentioned above, both DLC and SLC had recommended the case of the petitioner for compassionate appointment in a grade-III post, which would mean that petitioner fulfils the criteria for such appointment. The SLC meeting had taken place on 16.06.2012. It is also not the contention of the respondents that there has been change in the financial status of the petitioner post 16.06.2012. 18. As per statement made in the writ petition, petitioner got married on 11.12.2011, i.e., after her case was considered by the DLC on 08.09.2010. When the petitioner had applied for compassionate appointment, she was not married. 19. OM dated 02.03.2009 laid down revised guidelines for appointment on compassionate ground of a son, daughter or widow of a Government servant. It provided that widow or son or unmarried daughter or adopted son or adopted unmarried daughter of a Government servant who died in harness may be provided compassionate appointment in a class-III or class-IV post to give immediate financial assistance to the family of the deceased Government servant. Since other provisions of the OM dated 02.03.2009 have not been questioned, present deliberation is confined to the beneficiaries of compassionate appointment as per the said OM. 20. As seen from the above, benefit of compassionate appointment to a family member of a deceased Government servant was made available either to the widow or to the son or unmarried daughter or adopted son or adopted unmarried daughter. Thus, from the above what is evident is that in the case of son or adopted son, no distinction was made with regard to their marital status. Thus, from the above what is evident is that in the case of son or adopted son, no distinction was made with regard to their marital status. In other words, an unmarried son or a married son or an unmarried adopted son or a married adopted son were entitled to a consideration for compassionate appointment. However, in the case of daughter or adopted daughter, the OM was specific that only unmarried daughter or unmarried adopted daughter would be entitled to such a consideration. 21. This Court is unable to accept such artificial distinction introduced by the OM dated 02.03.2009. If a married son is entitled to a consideration for compassionate appointment, it is not understood as on what ground, a married daughter can be debarred from such a consideration. Such exclusion besides being unreasonable and arbitrary, also reflects discrimination on the basis of gender. It is a reflection of a deeply prejudiced mindset that a daughter once given in marriage is no longer a part of the family and, therefore, should be denied her rights as a member of the family. 22. Article 14 of the Constitution provides that State shall not deny to any person equality before the law or equal protection of the law within the territory of India. Article 15 prohibits discrimination on the ground of religion, race, caste, sex or place of birth. While Article 15 specifically prohibits the State from discriminating against any citizen on the ground of sex, sub-Article (3) on the other hand enables the State from making special provision relating to women and children having regard to their vulnerability in the Indian social context. On the other hand, Article 16(1) mentions that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 23. As already noticed above, this Court finds no justification in the artificial classification sought to be drawn between the son and the daughter of a deceased Government servant. If a married son is entitled to a consideration for compassionate appointment, such benefit cannot be denied to a married daughter. Otherwise, it would be violative of Articles 14, 15 and 16 of the Constitution of India. Discrimination based on sex is wholly unconstitutional and impermissible as per mandate of the Constitution. 24. If a married son is entitled to a consideration for compassionate appointment, such benefit cannot be denied to a married daughter. Otherwise, it would be violative of Articles 14, 15 and 16 of the Constitution of India. Discrimination based on sex is wholly unconstitutional and impermissible as per mandate of the Constitution. 24. Possibly, this aspect had drawn the attention of the authorities in the State Government and as a consequence, OM dated 01.06.2015 has been introduced. In this OM dated 01.06.2015, "dependant family member" of a Government servant entitled to a consideration for compassionate appointment has been defined to mean a person who was wholly dependent on the Government servant at the time of his death in harness or retirement on medical grounds or who had gone missing, as the case may be, and includes - (a) spouse, (b) son (including adopted son), (c) daughter (including adopted daughter) or (d) brother or sister in the case of an unmarried Government servant. Thus the present OM dated 01.06.2015 has removed the artificial and arbitrary classification between married son and married daughter while considering compassionate appointment of a dependant family member of a Government servant dying in harness. Under the OM dated 01.06.2015, a married daughter or married adopted daughter would be entitled to a consideration for compassionate appointment. 25. As already noticed above, when the petitioner had applied for compassionate appointment, she was not married. It was after consideration by the DLC and prior to consideration by the SLC that she got married on 11.12.2011. Even if provisions of the earlier OM dated 02.03.2009 were held to be applicable, it would be a wholly absurd proposition to suggest that an applicant seeking compassionate appointment should maintain her unmarried status till disposal of her consideration. Such a stand, if accepted would impinge upon the freedom of option to marry of an applicant seeking compassionate appointment which would be violative of her right to life as enshrined in Article 21 of the Constitution. It needs no re-statement that Supreme Court has time and again declared that life within the meaning of Article 21 cannot be confined to mere animal existence but means life with human dignity. It covers all such aspects which make man a man. Marriage is an important institution in the Indian social context - personal, social and religious. It needs no re-statement that Supreme Court has time and again declared that life within the meaning of Article 21 cannot be confined to mere animal existence but means life with human dignity. It covers all such aspects which make man a man. Marriage is an important institution in the Indian social context - personal, social and religious. Therefore, to tell a woman that to avail the benefit of compassionate appointment, she should not marry would not only be highly unconstitutional but offensive to womanhood itself. It also reflects a deep rooted patriarchal and patronising mindset as well as a totally unacceptable view that marital status would indicate relative affluence. Conversely, it is suggestive that people who are poor or suffer from relative poverty, cannot enter into marital relationship. Such a concept is untenable in the context of Indian culture and heritage where the institution of marriage has nothing to do with affluence. 26. Though submission has been made to interpret OM dated 01.06.2015 as having retrospective effect, I am of the view that such an interpretation is not required inasmuch as having regard to the discussions made above, presence of the word "unmarried" prefixing daughter or adopted daughter in the OM dated 02.03.2009 would be wholly illegal and unconstitutional. Accordingly, when the case of a daughter for compassionate appointment is considered even in terms of OM dated 02.03.2009, reference to her marital status would be repugnant to the constitutional mandate as indicated above. OM dated 02.03.2009 should be read accordingly. 27. The net result of the above discussion would be that a married daughter or a married adopted daughter would be entitled to a consideration for compassionate appointment whether it is under the OM dated 02.03.2009 or under the present OM dated 01.06.2015. 28. That being the position, this Court finds no impediment for appointment of the petitioner on compassionate ground as recommended by the SLC. Consequently, respondent Nos. 2 to 4 are directed to issue appointment letter to the petitioner within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. 29. Writ petition is accordingly allowed. No cost.