Excel for
Allahabad High Court
Case :- WRIT - C No. - 60881 of 2015 Petitioner :- Smt. Vimla Srivastava Respondent :- State Of U.P. And Another WITH Case :- WRIT - C No. - 14853 of 2015 Petitioner :- Smt. Deepti Respondent :- State Of U.P. And 2 Ors. WITH Case :- WRIT - C No. - 20204 of 2015 Petitioner :- Smt. Priyanka Srivastava Respondent :- State Of U.P. & Another Coram: Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Yashwant Varma,J. Order (Per: Dr D Y Chandrachud, CJ) The Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 19741 have been framed under the proviso to Article 309 of the Constitution and regulate the grant of compassionate appointment to the members of the family of a government servant who dies in harness. The Rules define the expression "family" to include, among others, "unmarried daughters and unmarried adopted daughters". The Rules also bring sons and adopted sons within the ambit of a family. The eligibility of a son or adopted son is not conditioned by marital status. The challenge in these proceedings is to the stipulation that only an unmarried daughter falls within the definition of the expression "family". As a consequence of the condition, a married daughter ceases to fall within the family of a deceased government servant for the purpose of seeking compassionate appointment. Rule 2 (c) of the Dying-in-Harness Rules defines the expression "family" in the following terms: "2(c) "family" shall include the following relations of the deceased Government servant: (i) Wife or husband; (ii) Sons/adopted sons; (iii) Unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law; (iv) Unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried; (v) aforementioned relations of such missing Government servant who has been declared as "dead" by the competent Court; Provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word "family" shall also include the grandsons and the unmarried granddaughters of the deceased Government servant dependent on him."
In exploring the nature of the constitutional challenge which has been addressed in these proceedings, it would at the outset be necessary to dwell briefly on the nature and purpose of compassionate appointment. The object and purpose of compassionate appointment is to provide ameliorative relief to the family of a government servant who has died in harness. Compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment under Article 16 of the Constitution. Equality of opportunity postulates a level playing field where all eligible persons are entitled to compete in an effort to secure public employment. The basis of the exception that is carved out by the Dying-in-Harness Rules is that the death of a wage earner while in the service of the State imposes severe financial hardship on the family faced with an untimely death. Compassionate appointment is intended to provide immediate financial support to such a family by stipulating that upon the death of its wage earner while in harness as a government servant, another member of the family would be granted appointment. Compassionate appointment is not a reservation of a post in public employment but is in the nature of an enabling provision under which a member of the family of a deceased government servant who has died while in harness can seek appointment based on financial dependency and need.
The basic rationale and the foundation for granting compassionate appointment is thus the financial need of the family of a deceased government servant who has died in harness and it is with a view to alleviate financial distress that compassionate appointment is granted. The submission which has been urged on behalf of the petitioners in challenging Rule 2 (c) (iii), insofar as it confines the zone of eligibility only to unmarried daughters, is two fold. Firstly, it has been submitted that in matters of public employment, marital status cannot disqualify an applicant and any discrimination on the ground of marital status would be violative of Articles 14 and 15 of the Constitution. Secondly, it has been urged that there can be no discrimination between a son and a daughter in the grant of compassionate appointment and any discrimination on the ground of gender violates Article 15 of the Constitution. A counter affidavit has been filed on behalf of the State in these proceedings in which, it has been asserted that: "After marriage, the daughter becomes the family member of her husband and the responsibility of her maintenance solely lies upon her husband, therefore, in such circumstance there is no justification of giving employment to the married daughter of the deceased employee as the dependent of deceased employee. That, it is also relevant to mention here that the employment as a dependent of deceased is a compassionate appointment which is not a matter of right. It is further submitted that the married daughter is not covered by definition of "family", therefore, she cannot be considered eligible for giving the compassionate appointment. It is further submitted that under the Hindu Law, a married daughter cannot be considered as dependent of her father or dependent of joint Hindu family. After the marriage, her husband is not only her guardian but he is under legal obligation to maintain her. Under the Hindu Law, after the marriage, the daughter even does not remain member of the family of her father and she becomes member of her in laws family." Moreover, it has been submitted that a married daughter is not considered as a dependent of her deceased father and is not legally entitled to get compassionate appointment. In support of the submissions which have been urged in the counter affidavit, learned Standing Counsel submits that Rule 2 (c) has made no discrimination on grounds of gender. The submission is that the purpose of Rule 2 (c) is to enable the State to grant compassionate appointment to a member of the family who was dependent on the deceased government servant. When a daughter is married, it is asserted, the element of dependency on the deceased government servant ceases to exist and the reason for the exclusion is not gender but the absence of dependency. While assessing the rival submissions, it must be noted at the outset that the definition of the expression "family" in Rule 2 (c) incorporates the categories of heirs of a deceased government servant. Among them are the wife or husband, sons and adopted sons, unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law. Clause (ii) of Rule 2 (c) brings a son as well as an adopted son within the purview of the expression "family" irrespective of marital status. A son who is married continues to be within the ambit of the expression "family" for the purpose of Rule 2 (c). But by the stroke of a legislative definition, a daughter who is married is excluded from the scope and purview of the family of a deceased government servant unless she falls within the category of a widowed daughter. The invidious discrimination that is inherent in Rule 2 (c) lies in the fact that a daughter by reason of her marriage is excluded from the ambit of the expression "family". Her exclusion operates by reason of marriage and, whether or not she was at the time of the death of the deceased government servant dependent on him. Marriage does not exclude a son from the ambit of the expression "family". But marriage excludes a daughter. This is invidious. A married daughter who has separated after marriage and may have been dependent on the deceased would as a result of this discrimination stand excluded. A divorced daughter would similarly stand excluded. Even if she is dependent on her father, she would not be eligible for compassionate appointment only because of the fact that she is not "unmarried". The only basis of the exclusion is marriage and but for her marriage, a daughter would not be excluded from the definition of the expression "family".
The issue before the Court is whether marriage is a social circumstance which is relevant in defining the ambit of the expression "family" and whether the fact that a daughter is married can constitutionally be a permissible ground to deny her the benefit of compassionate appointment. The matter can be looked at from a variety of perspectives. Implicit in the definition which has been adopted by the state in Rule 2 (c) is an assumption that while a son continues to be a member of the family and that upon marriage, he does not cease to be a part of the family of his father, a daughter upon marriage ceases to be a part of the family of her father. It is discriminatory and constitutionally impermissible for the State to make that assumption and to use marriage as a rationale for practicing an act of hostile discrimination by denying benefits to a daughter when equivalent benefits are granted to a son in terms of compassionate appointment. Marriage does not determine the continuance of the relationship of a child, whether a son or a daughter, with the parents. A son continues to be a son both before and after marriage. A daughter continues to be a daughter. This relationship is not effaced either in fact or in law upon marriage. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed or defined by marital status. The State has based its defence in its reply and the foundation of the exclusion on a paternalistic notion of the role and status of a woman. These patriarchal notions must answer the test of the guarantee of equality under Article 14 and must be held answerable to the recognition of gender identity under Article 15.
A variety of situations can be envisaged where the application of the rule would be invidious and discriminatory. The deceased government servant may have only surviving married daughters to look after the widowed parent - father or mother. The daughters may be the only persons to look after a family in distress after the death of the bread earner. Yet, under the rule, no daughter can seek compassionate appointment only because she is married. The family of the deceased employee will not be able to tide over the financial crisis from the untimely death of its wage earner who has died in harness. The purpose and spirit underlying the grant of compassionate appointment stands defeated. In a given situation, even though the deceased government employee leaves behind a surviving son, he may not in fact be looking after the welfare of the surviving parents. Only a daughter may be the source of solace - emotional and financial, in certain cases. These are not isolated situations but social realities in India. A surviving son may have left the village, town or state in search of employment in a metropolitan city. The daughter may be the one to care for a surviving parent. Yet the rule deprives the daughter of compassionate appointment only because she is married. Our law must evolve in a robust manner to accommodate social contexts. The grant of compassionate appointment is not just a social welfare benefit which is allowed to the person who is granted employment. The purpose of the benefit is to enable the family of a deceased government servant, who dies in harness, to be supported by the grant of compassionate appointment to a member of the family. Excluding a married daughter from the ambit of the family may well defeat the object of the social welfare benefit.
The living tree - the Constitution - on which the law derives legitimacy is a liberal instrument for realising fundamental human freedoms. The law and the Constitution must account for multiple identities. Individuals - men and women - have multiple identities : as a worker in the work place; as a child, parent and spouse; identities based on preferences and orientation; those based on language, religion and culture. But from a constitutional perspective, they are protected and subsumed in the overarching privileges of citizenship and in the guarantee of individual freedoms.
Dealing with the aspect of marriage, the Division Bench held as follows:
In Air India Cabin Crew Assn. vs. Yeshaswinee Merchant7, the Supreme Court dealt with the prohibition under Article 15(2) on discrimination on the ground only of sex. Interpreting the provisions of Articles 15 and 16, the Supreme Court held that the constitutional mandate would be infringed where a woman would have received the same treatment as a man but for her sex.
(Yashwant Varma, J) (Dr D Y Chandrachud, CJ)
You may also like the following Posts:
Related Updates:
Allahabad HC-Family in UP Dying in Harness Rules include Unmarried Brother, Unmarried Sister and Widowed Mother Click Here >> |