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Madhya Pradesh High Court · body

2019 DIGILAW 296 (MP)

Bhawna Chourasia v. State of M. P.

2019-04-05

SUJOY PAUL

body2019
ORDER 1. This is second visit of the petitioner to this Court for the same grievance. Draped in brevity, the relevant facts are that petitioner’s mother Janki Chourasia, an Assistant Teacher died in harness on 26.1.2013. The petitioner, the only daughter, preferred an application for grant of compassionate appointment which was rejected on 23.1.2014 Annexure P-4. Aggrieved, petitioner filed W.P. No.13325/2014 which was disposed of as per settlement arrived at in Lok Adalat on 13.4.2014. As per the settlement, the respondents were required to take a fresh decision on the claim of compassionate appointment as per the applicable policy. In turn, by order dated 23.1.2014, the outcome was communicated. Although a new policy dated 29.9.2014 is now invogue which contains a clause which enables the employer to consider the claim of married daughter, the said claim qua petitioner cannot be considered in the teeth of clause 12.2 of this policy dated 29.9.2014. 2. Learned counsel for the petitioner submits that although clause 12.2 of this policy provides that previously preferred and rejected/disposed of claims shall not be considered, such impediment is bad in law and hits Article 14, 15, 16, 39(a), 42, 51(1)(k), 243D(3) and 243T(3) of the Constitution of India. He submits that different High Courts have disapproved the action of respective state governments in depriving the married daughter from the fruits of compassionate appointment. Reliance is placed on the judgments of Karnataka High Court reported in ILR 1992 KAR 3416 (R. Jayamma v. Karnataka Electricity Board), Madras High Court reported in 2015-3-L.W. 756 (R. Govindammal v. The Principal Secretary, Social Welfare and Nutritious Meal Programme Department) and Bombay High Court reported in 2013 SCC OnLine Bom 1549 (Sou. Swara Sachin Kulkarni v. The Superintending Engineer, Pune Irrigation Project Circle and another). He submits that clause 12.2 is bad in law and it deprives the petitioner despite her eligibility other wise. 3. Prayer is opposed by Shri Sheetal Tiwari, learned Panel Lawyer for the State. Shri Tiwari submits that as per the Full Bench judgment of this Court, the policy at the time of consideration is relevant policy which will govern the field. As per the policy of 2008, since there existed no enabling provision, petitioner’s claim was rejected on 23.1.2014. In the light of clause 12.2 of New Policy dated 29.9.2014, petitioner has no right whatsoever to claim compassionate appointment. 4. As per the policy of 2008, since there existed no enabling provision, petitioner’s claim was rejected on 23.1.2014. In the light of clause 12.2 of New Policy dated 29.9.2014, petitioner has no right whatsoever to claim compassionate appointment. 4. No other point is pressed by the learned counsel for the parties. 5. I have heard the learned counsel for the parties and perused the record. 6. The different High Courts have considered this aspect in great detail. It is apposite to quote the relevant passages which read as under: 7. In R. Jayamma (supra), it is held as under : 9. Though women have equal rights in law, tradition and social customs hinder Indian women in enjoying equal rights with men. With the change in family structure and life styles and the social norms, nothing is so detrimental to society as a blind adherence to outworn forms and obsolete social customs which survive because of inertia. 10. This discrimination, in refusing compassionate appointment on the only ground that the woman is married is violative of Constitutional Guarantees. It is out of keeping with the trend of times when men and women compete on equal terms in all areas. The Electricity Board would do well to revise its guidelines and remove such anachronisms.” [Emphasis Supplied] 8. In R. Govindammal (supra), it is opined as under : “14. Therefore, I am of the view that G.O.Ms. No. 560 dated 3.8.1977 depriving compassionate appointment to married daughters, while married sons are provided compassionate appointment, is unconstitutional. In fact, the State can make law providing certain benefits exclusively for women and children as per Article 15(3) of the Constitution. But the State cannot discriminate women in the matter of compassionate appointment, on the ground of marriage. 15. It is also useful to refer to Article 39(a) of the Constitution, that appears in Part IV of the Constitution viz., Directive Principles of State Policy : “39. Certain principles of policy to be followed by the State.— The State shall, in particular, direct its policy towards securing— (a) that the citizens, men and women equally, have the right to an adequate means of livelihood;” 23. At this juncture, it is useful to refer to the judgment of this Court in G. Girija’s case (cited supra). In that case, the Government servant died on 26.2.1991 leaving his wife and others. At this juncture, it is useful to refer to the judgment of this Court in G. Girija’s case (cited supra). In that case, the Government servant died on 26.2.1991 leaving his wife and others. The eldest daughter of the Government servant sought compassionate appointment, as there was no one in her family in employment. No order was passed on the application of the petitioner dated 2.6.1997. She gave another application on 12.4.2001. The Government imposed ban on recruitment in 2001 and the same was lifted on 21.2.2006. After the ban was lifted, she was directed to furnish certain particulars. In the mean time, she got married on 10.9.2006. Based on the same, her request for compassionate appointment was rejected. 24. In Paragraph 6 of the judgment, this Court referred to a judgment of the Division Bench and ultimately quashed the order refusing to grant compassionate appointment and issued direction to provide compassionate appointment without reference to marriage of the daughter. Paragraph 6 is extracted hereunder:— “6. The learned counsel for the petitioner as well as the learned counsel for the respondents submits that a similar issue was considered by the Division Bench of this Court in W.P. No. 18916 and the Division Bench in paragraphs No. 8 and 9 has held as follows:— “8. There is no dispute that the Government has made provision for appointment on compassionate ground, obviously with a view to enable the family members of the deceased employee to tide over immediately the financial stringency on account of the breadwinner in the family. It is of course true that as per G.O.Ms. No. 73, Employment Services dated 26.10.1983, only an unmarried daughter is eligible and not a married daughter. However, there is no requirement in the G.O. that at the time of actual employment such unmarried daughter should continue to be unmarried nor there is any requirement that after an unmarried daughter gets employment on the compassionate ground, she cannot marry in future. There is no dispute that the present petitioner was eligible to make the application and she made an application as an unmarried daughter. The appropriate authority took about 3 to 4 years to finalise the matter. There is no dispute that the present petitioner was eligible to make the application and she made an application as an unmarried daughter. The appropriate authority took about 3 to 4 years to finalise the matter. Merely because the unmarried daughter got married in the meantime and that too with a specific understanding that her husband would have no objection to her maintaining the members of the family of her father, it cannot be said that such person had got employment by suppressing any material fact. 9. We have also perused the format in which such Applications are required to be made. There is no column in such format to indicate that an applicant at the time of her employment is required to disclose whether she is married in the meantime is any requirement that an unmarried daughter after getting such appointment on compassionate ground is required to remain as a spinster for ever. If an unmarried daughter after getting employment on compassionate ground has liberty to marry, we fail to understand as to why an unmarried daughter, who makes such Application and is otherwise eligible, keeping in view the financial aspect, would be deprived of the right of getting employment, more particularly when there is no objection raised by any other eligible person. As a matter of fact, in the present case, the mother and the petitioner’s brother, who has become major in the meantime, have filed affidavits stating that they have no objection to the petitioner continuing in service. 9. For the aforesaid reasons, we are unable to sustain the order passed by the Tribunal and such order is hereby quashed. The petitioner shall be deemed to be continuing in service from the date of order of removal. However, no amount would for the period from 25.6.2004 till the date of rejoining pursuant to the present order. The petitioner shall be permitted to rejoin in service within a period of 30 days from the date of receipt of a copy of this order. The entire period shall be notionally counted for the purpose of seniority, increments, pension and other service benefits.” 25. In that case, the daughter was unmarried at the time of death and also at the time of making application. Hence, it was suffice for the Court to issue such a direction as stated above. 26. The entire period shall be notionally counted for the purpose of seniority, increments, pension and other service benefits.” 25. In that case, the daughter was unmarried at the time of death and also at the time of making application. Hence, it was suffice for the Court to issue such a direction as stated above. 26. In the decision in Krishnaveni’s case reported in (2013) 8 MLJ 684 , I had an occasion to consider the claim made by married daughter for compassionate appointment, when the same was rejected by the State. Relying on my earlier judgments in W.P. (MD) No. 5183 of 2013 (M. Sudha v. the District Collector, Thanjavur District) and W.P. (MD) No. 8686 of 2011, I held in categorical terms in (2013)8 MLJ 684 that if marriage is not a bar in the case of son, the same yardstick shall be applied in the case of a daughter also. It is relevant to extract paragraph 6, which is as follows :— “6. In similar circumstances, the matter was considered by me in W.P.(MD) No. 5183 of 2013 (M. Sudha v. the District Collector, Thanjavur District), and I set aside the similar impugned order and issued direction to the respondent therein to consider the case of the petitioner therein for compassionate appointment, if the petitioner therein was otherwise eligible for appointment. In fact, in the said judgment, I followed the earlier judgment of mine in W.P. (MD) No. 8686 of 2011. The relevant paragraph 5 of the aforesaid judgment is extracted hereunder: “5. As rightly contended by the learned counsel for the petitioner, the matter is squarely covered by a decision dated 2.7.2012 rendered by me in W.P.(MD) No. 8686 of 2011. Paragraph 9 of the judgment is extracted hereunder : 9. As stated above, if marriage is not a bar in the case of son, the same yardstick shall be applied in the case of a daughter also. At this juncture, it is relevant to take note of the statute, namely the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which places equal duty on both the son and daughter to take carte of the parents at the old age. Therefore, in the case of death of the parents, there cannot be any unequal treatment among the children based on sex. Therefore, in the case of death of the parents, there cannot be any unequal treatment among the children based on sex. Further, as rightly contended by the learned counsel for the petitioner, the judgment of this Court reported in 2008 5 CTC 685 (G. Girija v. Assistant Director (Panchayats) Kancheepuram, Kancheepuram District) applies to the facts of this case. In the said case, the Government servant died on 26.2.1991. The daughter got married on 10.9.2006. She gave an application for compassionate appointment on 2.6.1997. This Court quashed the order declining to give compassionate appointment holding that there cannot be any discrimination between sons and daughters in the case of giving compassionate appointment. The said judgment squarely applies to the facts of this case. Therefore, I have no hesitation to quash the impugned order. Accordingly, the impugned order is quashed and a direction is issued to the respondents to consider the claim of the petitioner for compassionate appointment without reference to the marriage of the petitioner and to pass appropriate orders in the light of this judgment within a period of eight weeks from the date of receipt of a copy of this order.” 27. In Krishnaveni’s case (cited supra), I have referred to the statute, namely the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which places equal duty on both the son and daughter to take care of the parents at the old age and held that the daughters shall be treated alike the sons in providing compassionate appointment. Thus, in the matter of providing compassionate appointment, no distinction shall be made between a son and a daughter. 28. The case on hand is a classic case, wherein, the deceased Government servant has no male issue. Nowadays, it is a common thing that a family have a single child; either male or female. Thus, if a Government servant has only daughter, as in this case, the widow of the Government servant cannot be stated that her married daughter could not be provided compassionate appointment, particularly, when she has to solely rely on her daughter. As stated above, Maintenance and Welfare of Parents and Senior Citizens Act, also now places equal responsibility on both the son and daughter to take care of their parents. 29. As stated above, Maintenance and Welfare of Parents and Senior Citizens Act, also now places equal responsibility on both the son and daughter to take care of their parents. 29. Hence, for all the aforesaid reasons, the impugned order is quashed and a direction is issued to the first respondent to provide compassionate appointment to the petitioner, if she is otherwise eligible, without reference to marriage. Such exercise shall be undertaken within a period of eight weeks from the date of receipt of a copy of this order.” [Emphasis Supplied] 9. In Sou. Swara Sachin Kulkarni (supra), it is opined as under: “The petitioner pointed out that such an insistence is impermissible in law. A letter dated 27th February, 2009 was issued communicating to her that her name has been deleted from the wait list owing to her marriage. If the petitioner’s name is to be deleted from the list because of her marriage then insistence on production of a certificate about her marital status in the year 2011 was clearly an exercise visited by non-application of mind. The deletion by letter dated 27th February, 2009 itself is violative of constitutional mandate. We cannot expect a Welfare State to take a stand that a married daughter is in-eligible to apply for compassionate appointment simply because she becomes a member of her husband’s family. She cannot be treated as not belonging to her father’s family. The deceased was her father. In this case, the deceased has only daughters. Both are married. The wife of the deceased and the mother of the daughters has nobody else to look to for support, financially and otherwise in her old age. In such circumstances, the stand of the State that married daughter will not be eligible or cannot be considered for compassionate appointment violates the mandate of Article 14, 15 and 16 of the Constitution of India. No discrimination can be made in public employment on gender basis. If the object sought can be achieved is assisting the family in financial crisis by giving employment to one of the dependents, then, undisputedly in this case the daughter was dependent on the deceased and his income till her marriage. Even her marriage was solemnized from the income and the terminal benefits of the deceased. If the object sought can be achieved is assisting the family in financial crisis by giving employment to one of the dependents, then, undisputedly in this case the daughter was dependent on the deceased and his income till her marriage. Even her marriage was solemnized from the income and the terminal benefits of the deceased. In such circumstances if after marriage she wishes to assist her family of which she continues to be a part despite her marriage, then, we do see how she is dis-entitled or ineligible for being considered for compassionate employment. This would create discrimination only on the basis of gender. We do no t see any rationale for this classification and discrimination being made in matters of compassionate appointment and particularly when the employment is sought under the State. The State is obliged to bear in mind the constitutional mandate and also directive principles of the State Policy. The point raised in this case is covered by the Judgment of a Division Bench in Writ Petition No. 1284 of 2011 decided on 1.8.2011 and a Judgment of a learned Single Judge in W.P. No. 6056 of 2010 decided on 26th October, 2010, all of this Court.” [Emphasis Supplied] 10. Pertinently, the State Government itself realized this fact in the policy dated 29.9.2014 that married daughter is also entitled to be considered. Clause 2.4 reads as under : ß2-4 fnoxar 'kkldh; lsod dh larku flQZ iq=h@iqf=;k¡ gks vkSj og fookfgr gS fnoaxr 'kkldh; lsod ds vkfJr ifr@iRuh }kjk ukekafdr fookfgr iq=hA ;g Li"V fd;k tkrk gS fd e`rd 'kkldh; lsod ds vkfJr ifr@iRuh thfor gksus ij gh fookfgr iq=h dks vuqdaik fu;qfDr dh ik=rk gksxhA vuqdaik fu;qfDr ikus okyh iq=h dks 'kkldh; lsod ds vkfJr ifr@iRuh ikyu&iks"k.k dh ftEesnkjh dk 'kiFk i= nsuk gksxkAÞ 11. Despite insertion of this clause in policy dated 29.9.2014, the petitioner is deprived because of clause 12.2 which reads as under : ß42-2 bl ifji= ds tkjh gksus dh frfFk ls iwoZ vLohÑr@fujkÑr izdj.kksa ij iqufoZpkj ugha fd;k tk,xkAÞ 12. No doubt, as per Full Bench judgment of this Court, reported in 2010(3) JLJ 300 (FB)= 2010(3) MPLJ 213 (FB), [Bank of Maharashtra v. Manoj Kumar Deharia & another], the policy which was applicable at the time of consideration is material. Fact remains that in the Full Bench, constitutionality of no clause of any policy was called in question. No doubt, as per Full Bench judgment of this Court, reported in 2010(3) JLJ 300 (FB)= 2010(3) MPLJ 213 (FB), [Bank of Maharashtra v. Manoj Kumar Deharia & another], the policy which was applicable at the time of consideration is material. Fact remains that in the Full Bench, constitutionality of no clause of any policy was called in question. Since clause 12.2 is called in question, this Court is obliged to answer this question. 13. This is trite law that cut off date or classification cannot be made which violates equality clause enshrined in Article 14 of the Constitution. A Constitution Bench of Supreme Court in Budhan Choudhry v. State of Bihar [ (1955)1 SCR 1045 ] opined as under : “The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases, namely, Chiranjit Lal Chowdhuri v. Union of India [(1950)1 SCR 869], State of Bombay v. F.N. Balsara [(1951)2 SCR 682], State of West Bengal v. Anwar Ali Sarkar [(1952)3 SCR 284], Kathi Raning Rawat v. State of Saurashtra [(1952)3 SCR 435], Lachmandas Kewalram Ahuja v. State of Bombay [(1952)3 SCR 710] and Qasim Razvi v. State of Hyderabad[ AIR 1953 SC 156 : (1953)4 SCR 581] and Habeeb Mohamad v. State of Hyderabad [(1953)4 SCR 661]. It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. The contention now put forward as to the invalidity of the trial of the appellants has, therefore to be tested in the light of the principles so laid down in the decisions of this Court.” [Emphasis Supplied] 14. If argument of learned Government Advocate is accepted that as per Full Bench judgment of this Court Manoj Kumar Deharia (supra), the consideration of compassionate appointment must be based on the policy which was prevailing at the time of consideration, the policy of 2008 would be applicable. Admittedly, in this policy, there was no provision for consideration of married daughter/woman candidate. Although it contains a provision for consideration of son/male candidates. As noticed, this was disapproved by difference High Courts on the anvil of various provisions of Constitution including Article 14 of the Constitution. I am in respectful agreement with the view taken in the said judgments by the High Courts. Thus, even if policy of 2008 is applicable in the instant case, the petitioner cannot be deprived from right of consideration for compassionate appointment being a married daughter. 15. This is a matter of common knowledge that in present days there are sizable number of families having single child. In many families, there are no male child. The daughter takes care of parents even after her marriage. The parents rely on their daughters heavily. Cases are not unknown where sons have failed to discharge their obligation of taking care of parents and it is taken care of and obligation is sincerely discharged by married daughters. Thus, it will be travesty of justice if married daughters are deprived from right of consideration for compassionate appointment, if a spouse of a deceased employee is alive and married daughter undertakes to take care of such living parent, if she gets compassionate appointment. 16. As per Clause 12.2 of new policy, the Government itself decided to consider the claims of married daughters by putting a condition that previously disposed of/rejected cases shall not be considered. 16. As per Clause 12.2 of new policy, the Government itself decided to consider the claims of married daughters by putting a condition that previously disposed of/rejected cases shall not be considered. In the peculiar facts of this case, it is clear that the claim of petitioner was directed to be considered again by settlement dated 13.12.2014 arrived at in Lok Adalat. In the light of said settlement, the claim was reconsidered. It was rejected in the teeth of Clause 12.2 above. 17. If said clause is pressed into service in the present case, it will have a discriminatory result. It will deprive the petitioner from the fruits of consideration on the ground that her claim was previously rejected. At the cost of repetition, her claim could not have been rejected even as per the earlier policy for want of enabling provision. Clause 12.2 cannot be pressed into service qua petitioner otherwise it will amount to dividing a homogeneous class and create a class within the class. The respondents are unable to show any rational object and purpose sought to be achieved by pressing this clause against the petitioner. 18. In the peculiar facts of this case, Clause 12.2 cannot be pressed into service because petitioner’s claim for compassionate appointment remained alive in the light of order of Lok Adalat dated 13.12.2014. In this peculiar backdrop, I am unable to countenance the order dated 25.2.2017 (Annexure-P/7), whereby the claim of petitioner was rejected in the light of Clause 12.2. Whether Clause 12.2 can be pressed into service in those cases where : (i) validity of Clause 12.2 is not called in question & (ii) claim for compassionate appointment is rejected before introduction of policy of 2014 and such rejection order had attained finality, is a different facet which is not required to be decided in the present case. 19 In view of aforesaid analysis, the impugned orders dated 23.1.2014 (Annexure-P/4) & 25.2.2015 (Annexure-P/7) are set aside. The respondents are directed to considered the claim of the petitioner for compassionate appointment within 90 days from the date of production of copy of this order. If she is otherwise eligible, the respondents shall pass appropriate order within same time. It is made clear that petitioner’s claim cannot be rejected on the ground that she is married daughter of deceased government servant. Petition is allowed. No cost.