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2025 DIGILAW 721 (HP)

Rashma Devi v. State of H. P.

2025-04-10

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. By medium of this writ petition, the petitioner has assailed the office memorandum dated 18.05.2022, whereby a provision has been made by the State Government to make only the married daughter(s) eligible for compassionate appointment, in case, the family of the deceased government employee has only daughter(s) and none in both the families i.e. her parental family and the family into which she is married is in employment, funded by the government. 2. The office memoraundum reads as under:- “OFFICE ORDER Subject: ‘Compassionate Employment’- Provision regarding married daughter(s) 1. The matter regarding providing compassionate employment/assistance to married daughter(s) in case(s) where the family of the deceased employee has only daughter(s) was under consideration of the Government for some time. 2. After due consideration of this issue, it has been decided that married daughter(s) will also be eligible for compassionate appointment, in case the family of the deceased Government employee has only daughter(s) and none from the families i.e. her parental family and the family into which she is married, are in an employment, funded by the Government. As regards income criteria for married daughter(s), income of the parental family will be taken into account to determine indigency. 3. This provision may be brought to the notice of all concerned for information and compliance. 4. This Office Memorandum/instruction may also be seen on www.himachal.nic.in/finance under the link “Expenditure”. 3. It is evident from the perusal of the office memorandum that the same is in utter disregard and violation, and contrary to the ratio of the judgment of learned Division Bench of this Court in Mamta Devi vs. State of H.P. & Ors., 2021 (1) SLC 202 , more particularly the observations as contained in paras 17 to 23, which read as under:- “17. The conjunctional reading of the above judgments, viz-a-viz, the facts of the instant case, extensively convinces us that the State cannot carve out or draw, even a thin line, separating married daughter(s) from unmarried daughter(s)/son(s)/married son(s), ultimately depriving married daughter(s) of their valuable right of compassionate appointment. The State cannot discriminate married daughter(s) on the mere fact of marriage. The conjunctional reading of the above judgments, viz-a-viz, the facts of the instant case, extensively convinces us that the State cannot carve out or draw, even a thin line, separating married daughter(s) from unmarried daughter(s)/son(s)/married son(s), ultimately depriving married daughter(s) of their valuable right of compassionate appointment. The State cannot discriminate married daughter(s) on the mere fact of marriage. The policy of providing compassionate employment, which is in vogue, evidently provide a criterion of dependency on the deceased government servant, now, it is difficult to understand that married sons remain dependent and dependency of married daughters ceases with marriage, hence forming an exception. This exception may have hypothetical rationale, which though not offered, behind depriving employment assistance to a married daughter and it can be twin-fold, viz., (i) with marriage, financial dependency of a female shifts from her parents to her husband and his family; and (ii) least or no expectation from a married daughter to look after her surviving mother/father and siblings, who have chosen to give ‘No objection’ in favour of a married daughter, for her’s being given employment on compassionate grounds. The above two rationale, in fact, fail to constitute a valid and viable basis depriving employment on compassionate grounds to married daughters, especially when daughters, married or unmarried, have been given all legal rights, as available to sons (married/unmarried), after the death of parents. So, the real test of “dependency” is the fact that the applicant, seeking compassionate appointment, was dependent on him/her prior to his/her demise. Thus, any other condition(s), debarring married daughter(s) is not only against the scheme of Constitution of India , but also against the dependency test. 18. The legality of the compassionate policy, in vogue, and in question herein, has to be evaluated on the touchstone of its constitutionality, but the policy, upon its evaluation, is discriminatory to married daughters, hence against the spirit of Article 15 of the Constitution of India . The State cannot act in a misogynistic way, carving ways to debar compassionate employment to married daughters and such act(s) fall within the definition of discrimination based on sex, which is against Article 15 of the Constitution of India . 19. The State cannot act in a misogynistic way, carving ways to debar compassionate employment to married daughters and such act(s) fall within the definition of discrimination based on sex, which is against Article 15 of the Constitution of India . 19. The object of compassionate employment is not only social welfare, but also to support the family of the deceased government servant, who dies in harness, and by excluding married daughter(s) from the sweep of the family, the real purpose of social purpose cannot be achieved. If the marital status of a son does not make any difference in the eyes of law, then it is difficult to think, how marital status of a daughter makes such a huge difference in her eligibility. In fact, marriage does not have proximate nexus with identity and even after marriage, a daughter continues to be a daughter. Therefore, if a married son has right to compassionate appointment, then a married daughter also stands on the same footing and her exclusion does not have any plausible basis or logic, so her exclusion has no justifiable criteria. 20. Moreover, in the instant case there is no male member in the family, since the father of the petitioner, who died in harness, left behind his widow and two daughters only, the petitioner, being the elder daughter. The aim and object of the policy for compassionate appointment is to provide financial assistance to the family of the deceased employee. In the absence of any male child in the family, the State cannot shut its eyes and act arbitrarily towards the family, which may also be facing financial constraints after the death of their sole bread earner. 21. As held above, the object of compassionate appointment is not only social welfare, but also to support the family of the deceased government servant, so, the State, being a welfare State, should extend its hands to lift a family from penury and not to turn its back to married daughters, rather pushing them to penury. In case the State deprives compassionate appointment to a married daughter, who, after the death of the deceased employee, has to look after surviving family members, only for the reason that she is married, then the whole object of the policy is vitiated. 22. In case the State deprives compassionate appointment to a married daughter, who, after the death of the deceased employee, has to look after surviving family members, only for the reason that she is married, then the whole object of the policy is vitiated. 22. After incisive deliberations, it emerges that core purpose of compassionate appointment is to save a family from financial vacuum, created after the death of deceased employee. This financial vacuum could be filled up by providing compassionate appointment to the petitioner, who is to look after the survivors of her deceased father and she cannot be deprived compassionate appointment merely on the ground that she is a married daughter, more particularly when there is no male child in the family and the petitioner is having ‘No Objection Certificates’ from her mother and younger sister, the only members in the family. 23. In the instant case, in case the petitioner is not given compassionate appointment, who has to take care of her widowed mother and sister, if she is otherwise eligible and she fulfills the apt criteria, the whole family will be pushed to impoverishment, vitiating the real aim of the compassionate employment policy. 4. It is surprising to note that this office memorandum has been issued after the decision of this Court in the aforesaid case, which was decided on 28.10.2020, that too, without even considering the judgment. It is not a case where the respondents have attempted to over-rule or set aside the decision of this Court by bringing about a legislation, therefore, clearly office memorandum being in gross violation of the judgment of this Court cannot withstand judicial scrutiny and is accordingly quashed and set aside to the extent that it only makes married daughter(s) eligible for compassionate appointment, only in case, where the family of the deceased government employee has only daughter(s). The remaining part of the office memorandum which provides for a condition that none in both the families i.e. her parental family and the family in which she is married, is in employment funded by the government, is not interfered with. Similarly, the income criteria for married daughter, income of the parental family, which is required to be taken into consideration to determine the indigency, is also not interfered. 5. Similarly, the income criteria for married daughter, income of the parental family, which is required to be taken into consideration to determine the indigency, is also not interfered. 5. Accordingly, the respondents are directed to consider the case of the petitioner for grant of compassionate appointment against Class-IV post in accordance with law. 6. The petition stands disposed of in the aforesaid terms, so also pending applications, if any.