IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE/CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon’ble the Acting Chief Justice,
The Hon’ble Justice Dipankar Datta
AND
The Hon’ble Justice Tapabrata Chakraborty
C.A.N. 12495 of 2014
in
F.M.A. 1277 of 2016
The State of West Bengal ors.
v.
Purnima Das ors.
with
WPST 447 of 2013
Arpita Sarkar
v.
State of West Bengal ors.
with
WPST 78 of 2014
Kakali Chakraborty (Dutta)
v.
The State of West Bengal ors.
For the appellants/State : Mr. Joytosh Majumder,
in FMA 1277 of 2015 Mr. Pinaki Dhole,
and the respondents Mr. Rajat Dutta,
in WPST 447 of 2013 Mr. Avishek Prasad.
WPST 78 of 2014
For the petitioner in : Mr. Indranath Mitra,
WPST 447 of 2013 Mr. Subhankar Das,
For the petitioner : Mr. Rasomay Mondal,
in WPST 78 of 2014 Mr. S. K. Mukhopadhyay,
Mr. Subrata Kr. Sarkar,
Mr. R. Bose.
For the respondent : Mr. Anjan Bhattacharya.
no. 1/writ petitioner
in FMA 1277 of 2015.
Hearing concluded on: August 2, 2017
Judgment on: September 13, 2017
DIPANKAR DATTA, J. :
Introduction
1. While hearing C.A.N. 12495 of 2014 (an application for stay) in an intra-court
writ appeal [M.A.T. 2234 of 2014 (State of West Bengal ors. v. Purnima Das
ors.)], since renumbered F.M.A. 1277 of 2015, a Division Bench of this Court on
June 25, 2015 passed the following order:
“Having regard to the judgments of different Division Benches on the same
issue contravening each other, we are of the opinion, the matter has to be
referred to Larger Bench.
Place it before the Chief Justice for necessary order.”
2. By an administrative order dated February 17, 2016 passed on the file of F.M.A.
1277 of 2015, the Hon’ble the Chief Justice constituted a Bench of three learned
Judges of this Court, to be presided over by Her Ladyship, to hear the same. The
said Bench could not conclude hearing of the appeal owing to transfer of the
Hon’ble the Chief Justice.
3. A subsequent administrative order of the Hon’ble the Acting Chief Justice dated
December 7, 2016 resulted in constitution of this Bench to hear F.M.A. 1277 of
2015.
4. W.P.S.T. 447 of 2013 (Arpita Sarkar v. State of West Bengal ors.) and W.P.S.T.
78 of 2014 [Kakali Chakraborty (Dutta) v. State of West Bengal ors.) are writ
petitions directed against the decisions of the West Bengal Administrative
Tribunal (hereafter the WBAT), whereby the challenge laid before it by the
respective applicant was spurned. While hearing these writ petitions, a Division
Bench noticed that the issue arising for decision was “similar to the matter
pending adjudication before the Special Bench in F.M.A. 1277 of 2015”.
Accordingly, by an order dated November 25, 2016, these writ petitions were
directed to be “placed before the Special Bench”. A further administrative order
dated January 12, 2017 of the Hon’ble the Acting Chief Justice followed,
resulting in placement of all the writ appeals/writ petitions before us.
5. The basic issue in the writ appeal/writ petitions requiring determination is almost
common. It arises out of denial of appointment on compassionate grounds to
married daughters of Government employees who died-in-harness, on the
specious ground that such daughters are not eligible in terms of the relevant
scheme for compassionate appointment.
6. Before proceeding further, it is considered proper to place on record that the
Division Bench in its order dated June 25, 2015 passed in F.M.A. 1277 of 2015
having not formulated any question for an answer by the larger Bench, the
following question was formulated by us in course of hearing for decision:
“Whether the policy decision of the State Government to exclude from the
zone of compassionate appointment a daughter of an employee, dying-in-
harness or suffering permanent incapacitation, who is married on the date
of death/permanent incapacitation of the employee although she is solely
dependent on the earnings of such employee, is constitutionally valid?”
7. The parties to F.M.A. 1277 of 2015, W.P.S.T. 447 of 2013 and W.P.S.T. 78 of
2014 were put on notice and their respective learned advocates heard at length.
They advanced extensive arguments by placing the relevant circulars governing
compassionate appointment under the State and also by citing decisions of
various high courts touching the relevant point. Written notes of arguments were
filed on behalf of Arpita, Kakali and the State, upon obtaining leave from us.
The genesis of the lis
8. Tracing the genesis of the lis would inevitably require taking a close look at the
facts and circumstances that triggered the proceedings before the writ court by
Purnima and before the WBAT by Arpita and Kakali.
F.M.A. 1277 of 2015
9. Purnima, the first respondent in the appeal, is the daughter of Haru Chandra Das
(since deceased). He was employed as chowkidar under Bara-II Gram Panchayat
when he breathed his last on March 11, 2011. Late Haru Chandra Das left behind
him his widow and three daughters, all married, Purnima being the youngest.
After the death of the employee, his widow approached the respondents seeking
compassionate appointment. However, such application is not annexed to the writ
petition which Purnima had presented before this Court. Although Purnima
claimed that she had approached the respondents on 3rd September, 2012 with a
prayer to substitute her name in place of her mother for a job on compassionate
ground, it is evident from Annexure P-4 to the writ petition of Purnima that it was
her mother who made the aforesaid request for substitution and Purnima had only
undertaken to look after her mother, should she be considered for appointment in
place of her mother. Such application, however, was not considered prompting
Purnima to invoke the writ jurisdiction of this Court by presenting W.P. 22934 (W)
of 2012. Such writ petition was disposed of on 18th October, 2012 with a direction
upon the concerned respondent authority to consider the case of Purnima and
take an appropriate decision as expeditiously as possible. In compliance with the
said order, the application of Purnima was taken up for consideration by the
Commissioner, Panchayats Rural Development, West Bengal. By his
communication dated 20th June, 2013, he conveyed to the Principal Secretary to
the Government of West Bengal, Department of Panchayats Rural Development
as follows:
“Sir,
A proposal for compassionate appointment in respect of Smt. Purnima
Das (Mahaldar) married daughter of Lt. Haru Chandar Das, who was an Ex-
Gram Panchayat Karmee of Bara-II Gram Panchayat under Nalhati-II
Development Block, is forwarded for your kind perusal. This proposal may
be rejected as a married daughter is not be eligible for compassionate
appointment as per memo no. 433/PN dated 13.02.2009 (sic 03.02.2009).”
10. The communication dated 20th June, 2013 does not show that a copy thereof was
sought to be furnished to Purnima. It is not mentioned in her writ petition how
she obtained the communication. Purnima, however, claims to have obtained
memo dated 3rd February, 2009, referred to in the communication dated 28th
June, 2013, through the machinery of the Right to Information Act, 2005. It is on
perusal of such memo dated 3rd February, 2009 that Purnima came to learn that a
married daughter of an employee who has died-in-harness is not eligible to be
considered for compassionate appointment. Even without waiting for formal
rejection of her application for compassionate appointment but feeling aggrieved
by memo dated 3rd February, 2009, Purnima approached the writ court once again
by presenting W.P. 33967 (W) of 2013 praying for, inter alia, the following relief:
“a) A writ of and/or order and/or Mandamus do issue
(i) by setting aside the impugned Notification dated 3.2.2009 being
No.433/PN/0/III/2E-70/07(pt-1), Annexure P-7 of the writ petition with
immediate effect.
(ii) by directing the respondents to provide appointment to the petitioner on
compassionate ground in place of her deceased father.
(iii) by directing the respondents to consider the case of the petitioner for
compassionate appointment, afresh, strictly on the spirit of Article 14, 15
and 16 of the Constitution of India.
(b) A writ and/or order and/or direction in the nature of Certiorari do issue
commanding the respondents their officers, servants, agents etc. to
produce the relevant records pertaining to his case before this Hon’ble
Court so that conscionable justice may be done;”
11. The writ petition having been moved before a learned Judge of this Court,
affidavits were called for. An affidavit was filed on behalf of the respondents 1 to
8 when the writ petition came up for consideration before the learned Judge on
19th March, 2014. Upon hearing the parties, the writ petition was disposed by
judgment and order dated March 19, 2014, which has since been reported in
2014 (2) CLJ (Cal) 325 (Purnima Das v. State of West Bengal ors.).
The issue requiring an answer framed by the learned Judge reads as follows:
“A rather unique issue, which falls for consideration in the facts and
circumstances of the instant case is whether a prayer for compassionate
appointment can be rejected by the concerned respondent authority, solely
on the ground that the applicant happens to be a ‘married daughter’.”
The purpose for which the learned Judge had called upon the respondents to file
an affidavit-in-opposition is expressed in the following words:
“Earlier, this Court had directed the State to file an affidavit stating therein
specifically the rationale or logic behind exclusion of a ‘married daughter’
from being considered eligible for compassionate appointment under the
‘died-in-harness’ category, notwithstanding the fact that financial hardship
of the surviving family members being the most important criteria for such
eligibility. The State was further directed to state in the affidavit as to
whether a financially dependent daughter suddenly and automatically
becomes financially independent, the moment she gets married and whether,
likewise, such rationale or logic applies in case of a financially dependent
son, upon his marriage.”
On perusal of the affidavit-in-opposition that was filed, the learned Judge
proceeded to record His Lordship’s disappointment that the specific query
remained unanswered. Taking note of the settled legal position that
compassionate appointment cannot be claimed as a matter of right, His Lordship
wondered as to whether there was any rationale or logic behind exclusion of a
‘married daughter’ from being considered for compassionate appointment under
the ‘died-in-harness’ category, notwithstanding the fact that financial hardship of
the surviving family members is the most important criteria for such eligibility.
Taking further note of the fact that the memo dated 3rd February, 2009 was
issued in pursuance of two notifications dated 6th June, 2005 and 2nd April,
2008, both issued by the Chief Secretary, Government of West Bengal, Labour
Department, His Lordship recorded a finding of fact that no such rationale or
logic for excluding a married daughter was revealed. As a matter of fact, His
Lordship found that in the case of a son, it does not matter to the State whether
he is married at the time of making a prayer for compassionate appointment;
however, in the case of a daughter, the State sought to make an unreasonable
discrimination by excluding a married daughter from seeking appointment on
compassionate ground. Thereafter it was again recorded that “how a marital
status of a dependant daughter could be a reason for her exclusion from seeking
compassionate appointment, has not been spelt out, either in the notifications
dated 6th June, 2005 and 2nd April, 2008, or in the affidavit filed on behalf of the
State”. The approach of the State to exclude a married daughter of a Government
employee from being considered eligible to apply for appointment on
compassionate ground and making marital status of a son inconsequential,
according to His Lordship, was “not only a chauvinistic and archaic approach
towards the issue” but also “indicative of a gender insensitive and inflexibly
myopic mindset of the draftsmen of the two notifications dated 6th June, 2005
and 2nd April, 2008”. Once again recording the lack of rationale or logic for
applying such dual standards, His Lordship proceeded to dispose of the writ
petition with the following direction:
“The writ petition is, therefore, disposed of with a direction upon the Chief
Secretary, Government of West Bengal, to revisit the matter, in the light of
the observations made hereinabove and issue an appropriate notification,
which shall enure to the benefit of married daughters of deceased employees
of the State – such as the writ petitioner – so that they can also be
considered eligible to apply as dependant of a deceased employee, provided,
of course, they fulfil all other eligibility criteria, as laid down.”
12. FMA 1277 of 2015 (earlier MAT 2234 of 2014), at the instance of the
State/respondents is directed against the said judgment and order based on the
grounds urged in the memorandum of appeal.
W.P.S.T. 447 of 2013
13. Amit Sarkar (since deceased), father of Arpita (the writ petitioner), was employed
as a constable (driver) under the Superintendent of Police, Nadia (hereafter the
SP). He passed away on July 19, 2009 while in service. Late Amit Sarkar left
behind him his aged mother, widow and only daughter (Arpita). Upon the death
of Amit Sarkar, his widow made an application on August 27, 2009 before the SP
with a prayer to provide an appointment on compassionate ground. The SP by his
covering letter dated March 22, 2011 forwarded all the papers including the
aforesaid application dated August 27, 2009 and copy of the opinion of the
Government Pleader, Nadia dated March 1, 2011 to the Inspector General of
Police (Administration), West Bengal. During the pendency of such application,
the marital tie between Arpita and her husband stood severed by reason of the
petition for mutual divorce under Section 13B of the Hindu Marriage Act, 1955
presented on August 14, 2009 in the Court of the District Judge, Nadia at
Krishnagar being decreed by the competent court on May 17, 2010. By a memo
dated July 25, 2011, Arpita was informed by the SP of her ineligibility for
appointment of compassionate ground in the light of circulars letter dated April
2, 2008 and January 4, 2011 of the Labour Department, Government of West
Bengal as per the order of the Inspector General of Police (Administration).
Launching a challenge to the order of the SP dated 25th July 2011, Arpita had
approached the WBAT by presenting an original application [O.A. 1328 of 2011].
The prayers made in the original application read as follows:
“(a) An order do issue directing the respondents to rescind, cancel and/or
withdraw the memo bearing no. 543/RO dated 25.07.2011, issued by the
Superintendent of Police, Nadia, forthwith;
b) An order do issue directing the respondents to modify the notification
bearing no. 94-Emp dated 04.01.2011, issued by the Additional Chief
Secretary to the Government of West Bengal, Labour Department, Writers’
Buildings incorporating thereby the clause that the divorcee daughter of
Government employee would be considered for appointment on
compassionate ground in terms of the Labour Department notification
bearing no. 30-Emp dated 02.04.2008 and notification no. 114-Emp dated
14.08.2008, forthwith;
c) An order do issue directing the respondents, each one of them, their
agents and/or assigns to consider the case of appointment on
compassionate ground of the applicant, forthwith;”
14. It is claimed by Arpita that during the course of hearing of the original
application by the WBAT, clause 2(2) of the notification dated April 2, 2008 was
contended on her behalf to be ultra vires the Constitution of India and
consequent to leave being granted by the WBAT on February 14, 2012, the
Advocate General, Government of West Bengal was impleaded in the array of
respondents as the seventh respondent. The original application was considered
by the WBAT which, by the judgment and order dated March 26, 2013 dismissed
it relying on a decision reported in (2006) 5 SLR 87 (Sunita Bhadooria v. State of
Uttar Pradesh).
15. Aggrieved by such dismissal of O.A. 1328 of 2011, Arpita presented WPST 78 of
2014 before this Court seeking quashing of the decision of the WBAT as well as
the order of the SP dated July 25, 2013 and for directions upon the respondents
to modify notification no. 94-Emp dated January 4, 2011 suitably by
incorporating therein that a divorcee daughter of a Government employee would
be considered for appointment on compassionate ground in terms of notification
nos. 30-Emp and 114-Emp dated April 2, 2008 and August 14, 2008,
respectively, and thereafter to provide employment to Arpita.
W.P.S.T. 78 of 2014
16. Niva Rani Chakraborty (since deceased), mother of Kakali (the writ
petitioner), on the date of her death on November 13, 2010 was employed as a
peon in the Public Works Department, Government of West Bengal. She left
behind Kakali as her only surviving heir. Kakali was married on February 10,
1996. It was claimed by Kakali that because of physical disability of her
husband, he is not able to do any work and also that she has a son who is
mentally and physically challenged. The Chairman, Habra Municipality certified
on June 9, 2001 that the monthly income of Kakali was Rs. 600/- only. Kakali
was entirely dependent on Niva Rani Chakraborty and a serious economic crisis
having developed upon her mother’s death, she made an application on
December 15, 2010 seeking compassionate appointment. Since her application
was not considered and disposed of, Kakali approached the WBAT with an
original application [O.A. 750 of 2011] praying for, inter alia, the following relief:
“(a) An order directing the respondents authorities specially respondent No.4
to appoint your applicant in a Group ‘D’ Post under Public Works
Department, or other Department, State of West Bengal under dying in
harness category forthwith;
(b) An order directing the respondent authorities to consider the
representation submitted by the applicant on 15.12.2010 to the Respondent
No.4 forthwith;
(c) And pass such other or further order or orders as to your Lordships may
deem fit and proper.”
17. The WBAT by its judgment and order dated January 7, 2014 dismissed O.A. 750
of 2011 holding that appointment on compassionate ground has to be made
strictly in accordance with the rules/regulations/administrative Instructions
upon due consideration of the financial condition of the family of the deceased
and that Kakali, being a married daughter, did not qualify. Although the
application for compassionate appointment was not rejected by issuance of any
formal order, the WBAT observed as follows:
“In the instant case, the respondent authorities have rejected the prayer
since a married daughter is excluded from the purview of the scheme with
relaxation only in case of unmarried daughter who after the death of the
employee marries may apply. Therefore, such an administrative action taken
quite consistently in accordance with the existing provisions cannot be
assailed in judicial review and we do not find any illegality or infirmity in the
order impugned which calls for interference by this Tribunal. Needless to say
that the decision of the Hon’ble Apex Court in Shashank Goswami’s case
shall prevail upon the decision of the Hon’ble High Court taken in the case of
Usha Singh and Kisto Dasi Another. Accordingly, we hold that there is no
merit in this application which is dismissed, but this will not prevent the
respondents to consider the prayer of the petitioner if by way of subsequent
amendment they include the case of married daughters like the instant
applicant to extend immediate financial assistance.”
(underlining for emphasis by us)
18. W.P.S.T. 78 of 2014, presented by Kakali, questions the aforesaid judgment and
order. While praying for setting aside of the said judgment and order, Kakali also
prayed for directions on the respondents not to discriminate between a married
daughter and a married son for appointment on compassionate ground and to
release death gratuity in her favour.
Version of the State in its affidavit dated July 4, 2017
19. In course of hearing, we had looked into the affidavit-in-opposition of the
respondents filed before the learned Judge while dealing with Purnima’s writ
petition. Such affidavit did not contain the rationale or logic to exclude married
daughters from the purview of compassionate appointment, as rightly observed
by the learned Judge. Finding it difficult to advance arguments, Mr. Joytosh
Majumdar, learned Government Pleader, representing the appellants prayed for
leave to file a supplementary affidavit. By an order dated June 7, 2017, we
permitted the appellants to file a supplementary affidavit and directed the parties
to exchange their counter affidavits well in advance before the next date.
20. Availing such leave, an affidavit was filed before us affirmed by a law officer of the
Finance Department, Government of West Bengal. It refers to the policy of the
Government not to favour a daughter of a deceased employee, who was already
married on the date of death of such employee, with compassionate appointment.
The reason cited is that a married daughter does not belong to her paternal
family and upon her marriage she becomes a part of a separate household. The
scheme for compassionate appointment is conceived of mainly to help the family
of the deceased employee, viz. his/her spouse and if the spouse does not fulfil the
eligibility criteria, then to consider the son or unmarried daughter of the
deceased employee who is eligible in terms thereof. The affidavit further states
that in the service rules a married daughter is not shown as a member of the
family of the concerned employee; it is only an unmarried daughter who on the
date of death of her father was dependent on him and as a resident member of a
common mess, accrues a right to be considered as a family member of such
employee for consideration for appointment on compassionate ground. It is the
specific stand that a non-family member including a married daughter cannot
have similar right. Thereafter, the affidavit proceeds to state what compassionate
appointment is all about, who are eligible and how it is considered as not an
alternative mode of recruitment. It is obvious that the deponent of the affidavit
has drawn inspiration from Supreme Court decisions (without referring thereto)
and sought to project that compassionate appointment is neither hereditary in
character nor can be regarded as a vested right. The affidavit further urges that
compassionate appointment is a matter within the executive domain of the
Government and the courts have no power to modify the clauses for
compassionate appointment by rewriting the policy behind it. Referring to the
decision delivered on Purnima’s writ petition, it has been stated that the learned
Judge proceeded on sympathetic considerations but without considering that
such sympathetic consideration can never be beyond the realm of policy and the
relevant law. The affidavit concludes by submitting that since compassionate
appointment cannot be claimed as a matter of right, the State cannot deviate
from its policy of not offering compassionate appointment to a married daughter
of a deceased employee.
Submissions on behalf of the State
21. Appearing on behalf of the appellants in FMA 1277 of 2015 and the respondents
in the writ petitions, Mr. Majumdar vehemently urged that the reference should
be disposed of by us without in any manner tinkering with the scheme for
compassionate appointment introduced by the State.
22. Mr. Majumdar commenced his argument by referring to the contours of
compassionate appointment with special emphasis on the points that
compassionate appointment is not a regular source of appointment, it is not
heritable and none can claim it as a matter of right; that, if an applicant fulfils all
the conditions mentioned in the scheme for compassionate appointment, only
then could he/she raise a valid claim for being considered for such an
appointment. According to him, compassionate appointment being in the realm
of a concession given to the dependants of a Government employee, who either
dies-in-harness or is rendered physically unfit to continue in service, and being
an exception to the general rule of equality enshrined in Articles 14 and 16 of the
Constitution, no Mandamus ought to be issued by the Court to include anyone in
the species of dependants by judicial legislation.
23. Objecting to the judgment and order under challenge in FMA 1277 of 2015, it has
been the specific argument of Mr. Majumdar that the learned Judge without
setting aside memo dated February 3, 2009 ought not to have directed the Chief
Secretary of the State Government to issue a notification to enure to the benefit
of married daughters of deceased employees of the State so that they could be
considered eligible to apply as dependent of a deceased employee. According to
him, the direction so made denudes the Chief Secretary of exercising his
discretion in a reasonable and proper manner and amounts to re-writing of the
notification, leaving nothing to be decided at the level of the State. It was also
urged that the Chief Secretary is simply left with no option but to include
married daughters in the category of dependent family member acting in
compliance with the judicial fiat and thereby confer rights on persons who,
according to the State, are not entitled to be considered for compassionate
appointment at all.
24. Mr. Majumdar also submitted that a daughter, upon her marriage being
solemnised, becomes a part of a separate household and is most likely to be
dependent on her husband. The dependency of such daughter on her
father/mother/parents ceases with marriage and conferring right on a non-
family member is not conceived in the scheme of things relating to
compassionate appointment. To exclude a married daughter from the purview of
compassionate appointment has a reasonable nexus with the object of providing
succour to the dependants of a deceased Government employee and in that view
of the matter, the SCHEME for compassionate appointment being in conformity
with constitutional provisions, does not merit interference.
25. Adverting to the facts relevant for disposal of FMA 1277, Mr. Majumdar
contended that no application had been received seeking compassionate
appointment within the prescribed period i.e. 6 months from the date of death of
Haru Chandra Das. It was further contended that there is no document on
record to prove the averments made in paragraph 6 of the writ petition to the
effect that his widow had indeed approached the respondents seeking
compassionate appointment. According to him, the respondents had not been
approached within the prescribed time-frame and to cover up the laches, a story
had been cooked up to get over the point of limitation. It was also contended by
him that there is no averment in the writ petition to the effect that Purnima, after
her marriage, was dependent on her father while he was alive and in service. The
dependency of Purnima on her father not having been fulfilled, it was urged that
the learned Judge erred in the exercise of jurisdiction in enlarging the scope of
the writ petition and making the impugned direction.
26. Referring to the claim of Arpita, Mr. Majumdar contended that the petition for
divorce filed by Arpita soon after the death of her father Amit Sarkar is part of a
well-knit conspiracy to obtain public employment by hoodwinking the State by
going to the extent of obtaining a decree for mutual divorce. The conduct of
Arpita was criticised by submitting that she had never asked for maintenance for
herself or for her child. It was also contended by him that Arpita herself had not
made any application seeking compassionate appointment on the ground of
financial distress arising out of death of her father. It was Arpita’s mother who
had made an application on August 27, 2009 and it was she who prayed for
extending employment opportunity to Arpita. Unless Arpita herself applied for
compassionate appointment, there was no obligation on the part of the
respondents to consider such application but even then the claim was duly
considered and rejected in the light of notification nos. 30-Emp dated April 2,
2008 and 4-Emp dated January 4, 2011.
27. Insofar as the claim Kakali is concerned, it was submitted that she is also not
entitled to any relief having regard to the terms of the notifications/circulars for
compassionate appointment and the WBAT did not commit any error in rejecting
the original application.
28. In support of his submissions, Mr. Majumdar relied on several decisions of the
Supreme Court, viz.:
1. Kandarpa Sarma v. Rajeswar Das [(2011) 14 SCC 752];
2. Bhawani Prasad Sonkar v. Union of India [(2011) 14 SCC 209];
3. State Bank of India anr. v. Raj Kumar [(2010) 11 SCC 661];
4. State of Chhattisgarh v. Dhirjo Kumar Sengar [(2009) 13 SCC
600];
5. V. Sivamurty v. State of Andhra Pradesh [(2008) 13 SCC 730];
6. State Bank of India ors. v. Jaspal Kaur [(2007) 9 SCC 571];
7. National Institute of Technology v. Niraj Kumar Singh [(2007) 2
SCC 481];
8. State of Haryana v. Ankur Gupta [(2003) 7 SCC 708];
9. State of Haryana ors. v. Rani Devi [(1996) 5 SCC 308];
10. Life Insurance Corporation of India v. Asha Ramchandra
Ambekar (Mrs) [(1994) 2 SCC 781]; and
11. Auditor General of India ors. v. G. Ananta Rajeswara Rao
[(1994) 1 SCC 192].
29. Various reported/unreported decisions of the high courts including this Court
were cited, which are listed hereunder:
1. V. Sunithakumari v. Kerala State Electricity Board
(MANU/KE/0742/1992 1992 Lab.I.C. 2474);
2. Sunita Bhadooria (supra);
3. Decision dated November 17, 2008 of the Division Bench of the Patna
High Court in LPA No.115 of 2006 : The State of Bihar ors. v. Meera
Devi;
4. Decision dated August 28, 2012 of the Division Bench of the
Karnataka High Court in W.P. No.60233/2012 : Smt. Shobha v. The
State;
5. Decision dated February 9, 2012 of the Division Bench of this Court
in WPST No.31 of 2012 : Lipita Adhikary v. The State of West Bengal;
6. Decision dated May 15, 2013 of the Division Bench of this Court in
FMA 49 of 2013 with CAN 8213 of 2012 : The Chairman Managing
Director, W.B.S.E.D.C.L. v. Swati Bose (Ghosh);
7. Durgapur Projects Ltd. ors. v. Kumari Purnima Bhui [(2013) 2
WBLR (Cal) 559];
8. Decision dated August 12, 2014 of the Division Bench of this Court in
MAT 728/2014 : Chameli Bag v. The State of West Bengal ors.;
9. Shilpi Mishra v. State of M.P. [MANU/MP/0930/2014 (2014) III LLJ
211 (MP)];
10. Urmila Kanwar v. AVVN Ltd. (MANU/RH/1161/2014);
11. The Vice Chancellor, Jadavpur University anr. v. Jolly Dey Bose
[(2015) SCC Online Cal 2097];
12. Kumari Manju v. The State of Bihar (MANU/BH/0414/1997);
13. Decision dated July 24, 2014 of the Division Bench of the High Court
of Jharkhand at Ranchi in WP(S) No.16/2014 : M.V.V. Prakash v.
Union of India;
14. Bank of Maharashtra v. Manoj Kumar Deharia [2010 (8) SLR 70];
15. Decision dated July 27, 2015 of the Division Bench of the Allahabad
High Court in Special Appeal 425 of 2015 : Poonam Sharma v. State
of U.P.;
16. Decision dated March 11, 2015 of the Division Bench of the High
Court of Punjab and Haryana at Chandigarh in C.W.P. No.3812/2015
: Smt. Kamlesh v. State of Punjab;
17. Decision dated December 20, 2013 of the Single Bench of the
Rajasthan High Court in WP No.21436/2013 : Sanju v. State of
Rajasthan; and
18. Decision dated May 10, 2010 of the Single Bench of the Rajasthan
High Court in WP No.21436/2009 : Urmila Devi Yadav v. State of
Rajasthan ors.
30. Relying on the aforesaid decisions and based on the submissions noted above,
Mr. Majumdar developed his arguments and submitted that the State should be
left free to make appointments in terms of the notifications/SCHEME for
compassionate appointment without being obliged to provide scope of
appointment for married daughters, as directed by the learned Judge while
disposing of the writ petition of Purnima. While praying for setting aside of such
judgment and order, Mr. Majumdar also prayed that the decisions of the WBAT
under challenge in WPST 447/2013 and WPST 78/2014 ought to be upheld.
Submissions on behalf of Purnima, Arpita and Kakali
31. Mr. Bhattacharya, learned advocate appearing for Purnima submitted that the
decision under challenge in FMA 1277 of 2015 is such a well-written and well-
considered judgment that he has little to add. According to him, the arbitrariness
in the policy decision of the State to exclude married daughters from the scope of
consideration for compassionate appointment has truly been brought out in such
decision and despite the State having been given the opportunity to put forward
the logic or rationale behind such exclusion by us, the affidavit of the law officer
is once again silent. He concluded by submitting that the concern expressed by
the learned Judge in the said decision is thoroughly justified and no interference
therewith is warranted.
32. Representing Arpita, Mr. Mitra, learned advocate contended that:
I) There is no justification to exclude a dependent daughter, who might be
married on the date of death of the concerned Government employee,
from the zone of consideration of compassionate appointment. According
to him, the Government has proceeded to frame a policy decision without
visualising the realities of life. It is not uncommon in present day society
where a daughter after having been married is subjected to immense
torture and harassment at the matrimonial home whereafter she is
compelled to return to the care, affection and shelter of her father(Government employee) and her very existence is dependent on the
benevolence showered by her father. It is illegal and arbitrary not to take
into consideration the plight of such a daughter upon the untimely
demise of her father leaving the family in utter financial distress;
II) Reference was made to the notifications/SCHEME for compassionate
appointment permitting even a married son to be considered for
compassionate appointment and the emphasis was on discrimination by
reference to gender which is not permissible on the touchstone of
equality in law and equal protection of the laws guaranteed by the
Constitution in Part – III.
III) Having regard to the preamble of the Constitution as well as provisions
contained in Articles 14 to 16 thereof, the State cannot discriminate
against women in the matter of providing compassionate appointment
and exclusion of a married daughter from the definition of ‘dependent
family members’ clearly depicts denial of social justice and equal
opportunity in the matter of public employment;
IV) Any scheme of the State to provide employment on compassionate
ground that treats women differentially and to their detriment only on
the ground of marriage would certainly be violative of the Constitution;
V) Article 14 of the Constitution forbids class legislation and that is what
the State has resorted to in issuing the notifications/framing the
SCHEME and exclusion of married daughters is not based on any
reasonable classification having any nexus or relation with the object
that is sought to be achieved;
VI) Article 15(1) prohibits the State from discriminating on the ground of
sex but discrimination is writ large on the face of the
notifications/SCHEME;
VII) Article 15(3) enables the State to make special provisions for women but
instead of exercising such power for benefiting women, a retrograde step
has been taken which clearly fouls the Constitution;
VIII) Clause (1) of Article 16 guarantees equality of opportunity for all citizens
in matters relating to employment or appointment to any office under
the State, whereas clause (2) thereof is intended to ensure that no
citizen, inter alia, on the ground of sex is discriminated against in
respect of any employment or office under the State, but it is on the
ground of sex alone that married daughters have been given a raw deal
which ought to be set right looking at Article 39 of the Constitution, in
terms whereof the State ought to endeavour that men and women have
the right to an adequate means of livelihood;
IX) Article 13(2) of the Constitution prohibits the State to make any law
which takes away or abridges the rights conferred by Part – III and
ordains that any law made in contravention of such clause to the extent
of its contravention would be void and since the notifications/SCHEME
from the very day of its existence contravene(s) Articles 14, 15 and 16 of
the Constitution, such notifications/SCHEME have/has to be regarded
as still born law and dead from the very beginning and cannot be taken
note of or applied for any purpose whatsoever; and
X) Although the prayers in the original application may not have been
appropriately worded, paragraph 4.22 and ground no. VI of the original
application filed before the WBAT by Arpita made out a clear case of
exclusion of a married daughter from the zone of consideration being
ultra vires to the Constitution and accordingly, this Bench has the
authority to decide the point that was formulated for an answer upon
overruling the objection of Mr. Majumdar.
XI) The impugned judgment and order of the WBAT dated March 26, 2013
proceeded to dismiss the original application without taking into
consideration the aforesaid points and also mistakenly perceived that
the decision in Sunita Bhadooria (supra) had been rendered by the
Supreme Court although it was one rendered by a Division Bench of the
Allahabad High Court, and there being total non-application of mind by
the WBAT.
33. In support of the contention that a married daughter ought to be entitled to
appointment on compassionate ground, Mr. Mitra relied on the following
decisions:
i. Smt. Usha Singh v. State of West Bengal [(2003) 2 WBLR (Cal) 94
2003 (1) CLJ 407];
ii. unreported decision of a learned Judge of the Bombay High Court dated
October 26, 2010 in W.P. 6056 of 2010 [The State of Maharashtra
ors. v. Medha Prashant Parkhe];
iii. Smt. Chitra Mali (Mondal) v. State of West Bengal [2011(1) CLJ (Cal)
595];
iv. Sou. Swara Sachin Kulkarni (Kumari Deepa Ashok Kulkarni) v. The
Superintending Engineer, Pune Irrigation Project Circle (2013 SCC
Online Bom 1549);
v. Smt. Vimla Srivastava v. State of U.P. (2015 SCC OnLine All 6776);
vi. Miss C. B. Muthamma v. Union of India (AIR 1979 SC 1868);
vii. Savita Samvedi (Ms) v. Union of India [(1996) 2 SCC 380]; and
viii. Charu Khurana v. Union of India [(2015) 1 SCC 192].
34. Reference was also made by Mr. Mitra to the decisions of the Supreme Court
reported in (2011) 3 SCC 573 [RBF Rig Corpn. v. Commr. Of Customs (Imports)],
(2004) 6 SCC 522 (State of A.P. v. Golconda Linga Swamy) and (1997) 3 SCC 261
(L. Chandra Kumar v. Union of India), in support of the proposition that in an
appropriate case the writ court retains the power as inherent in its constitution
to do the right and undo a wrong in course of administration of justice on the
principle of quando lex aliquid alicui concedit, concedere videtur id sine quo res
ipsa esse non potest (when the law gives a person anything, it gives him that
without which it cannot exist).
35. It was, accordingly, prayed that dismissal of the original application of Arpita by
WBAT be set aside and her case be directed to be considered in the light of the
new scheme for compassionate appointment that was directed to be framed by
the learned Judge while disposing of the writ petition of Purnima.
36. Kakali was represented before us by Mr. Mondal, learned advocate. Referring to
exclusion of a married daughter in para 2(2) of notification no. 30 – Emp dated
April 2, 2008, it was contended that it amounts to an invidious discrimination
considering that a married son has not been so excluded from the ambit of the
expression ‘family’. The notification does not take note of the possible situation
that a married daughter who is separated from her husband after marriage (not
judicially separated) and may have been entirely dependent upon the deceased
employee (her father or mother) would, as a result of the discrimination, stand
excluded and such exclusion is sought to be justified only on the ground of her
marriage.
37. Reference has been made by Mr. Mondal to Rule 168B of the West Bengal Service
Rules Part – I. According to him, married daughters are included in the term
‘family’ for the purpose of Rule 168B and there is no valid justification for
excluding a married daughter insofar as compassionate appointment is
concerned.
38. Mr. Mondal further contended that although compassionate appointment is in
the nature of a concession in favour of dependent family members of a deceased
employee, who are unable to tide over the sudden financial crisis and may not
survive unless an appointment of one such dependent were made in departure of
the normal rules, the State cannot in course of extending such concession
discriminate by creating a class amongst children of a deceased Government
employee. In other words, it is not open to the State while granting a concession
to proclaim that the married son would be entitled to consideration for
compassionate appointment but not a married daughter, and this is
constitutionally plainly impermissible. He asserted that the assumption made by
the State that upon marriage a daughter ceases to be a member of her father’s
family and becomes the member of her husband’s family is not relevant in the
context of compassionate appointment, since it is the dependency factor that
ought to assume importance over all other factors. With marriage the
relationship of a daughter qua her parents does not stand determined; she
continues to be a daughter even after her marriage and such relationship is not
affected either in fact or in law. Marriage of a daughter does not bring about a
severance of relationship between such daughter and her parents and their
relationship is not governed or defined by marital status.
39. It has also been the contention of Mr. Mondal that marriage does not have a
proximate nexus with identity and the identity of a woman as a daughter of her
father continues to subsist even after and notwithstanding her marital
relationship. He urged that the time has, therefore, come for the courts to
affirmatively emphasise that it is not open to the State, if it has to act in
conformity with the fundamental principles of equality embodied in Articles 14 to
16 of the Constitution, to discriminate against married daughters by depriving
them of the benefits of consideration for compassionate appointment which is
made available to a married son.
40. Mr. Mondal has referred to a common saying, “a son is a son until he gets a wife,
a daughter is a daughter throughout her life” to blunt the effect of the
notifications/SCHEME for compassionate appointment denying the right of entry
of a married daughter in service on compassionate ground.
41. Referring to the facts in Kakali’s original application, Mr. Mondal contended that
she was entirely dependent on late Niva Rani Chakraborty and having regard to
the ailments suffered by Kakali’s husband and there being a male child born in
their wedlock with 60% disability, she is entitled to be appointed in a Group – D
post on compassionate ground.
42. According to Mr. Mondal, Kakali’s application had not been disposed of by any
formal order, yet, the WBAT decided the original application perceiving that
based on the notifications in force her claim for compassionate appointment had
been rejected by the respondents. He too complained of total non-application of
mind by the WBAT.
43. In support of his submissions, Mr. Mondal relied on the decisions in C. B.
Muthamma (supra), Haryana State Electricity Board v. Maha Singh (AIR 1997 SC
2553), Valsamma Paul (Mrs) v. Cochin University [(1996) 3 SCC 545], Savita
Samvedi (supra), State of Uttar Pradesh v. Pankaj Kumar Vishnoi [(2013) 11 SCC
178], Charu Khurana (supra), Vijaya Ukarda Athor (Athawale) v. State of
Maharashtra [(2015) 3 SCC 399], Smt. Chitra Mali (Mondal) v. The State of West
Bengal [2011 (1) CLJ (Cal) 595], Smt. Vimla Srivastava (supra), Smt. Kisto Dasi v.
Coal India Ltd. [2006 (2) CLJ (Cal) 15], Debapriya Bose v. The Secretary,
Government of West Bengal [2014 (2) CLJ (Cal) 517], Purnima Das (supra), Smt.
Usha Singh (supra), Soleman Bibi v. E.I. Ry. [AIR 1933 Calcutta 358 (2)] and
Smt. Nanda Rani Das v. The State of West Bengal [(2017) 2 WBLR (Cal) 292].
44. Mr. Mondal concluded by submitting that the judgment and order of the WBAT
dismissing Kakali’s original application is erroneous and liable to be set aside
and also that the claim of Kakali should be directed to be considered upon
declaring the exclusion clause in the notifications/SCHEME void ab initio.
Notifications/Circulars issued by the State related to compassionate
appointment
45. It would be appropriate at this stage to consider the notifications/circulars
that the State has issued from time to time laying down the procedure for
appointment on compassionate ground.
46. The West Bengal Regulation of Recruitment in State Government Establishment
and Establishments of Public Undertakings, Statutory Bodies, Government
Companies and Local Authorities Act, 1999 was enacted to … Section 3(a)
empowered the Government to declare any class or category of persons to be
“exempted category” for the purposes of such Act. Clause (c) of section 3
empowered the Government to prescribe the procedure for filling up vacancies by
persons from the exempted category. By notification dated August 21, 2002,
published in the Kolkata Gazette of even date, dependants of employees dying-in-
harness and dependants of employees retiring incapacitated along with land
losers, ex-census employees and election job workers/enumerators were declared
by the Government to be covered by the definition of “exempted category” for the
purposes of the 1999 Act.
47. In further exercise of power conferred by section 3 of the 1999 Act, the
Government of West Bengal in the Labour Department issued notification no. 97-
Emp. dated 6th June, 2005. Inter alia, it provided that one of the dependents of
an employee dying-in-harness or retiring pre-maturely on being declared
permanently incapacitated could be offered appointment on compassionate
ground subject to the conditions mentioned therein. The relevant clause
specifying who would be considered a dependent reads as follows:
“For the purpose of appointment on compassionate ground in terms of this
notification, a dependant shall mean spouse, a son or an unmarried
daughter who was solely dependent on the earnings of the deceased or the
retired employee.”
48. By memo dated July 12, 2005, the Deputy Secretary to the Government of West
Bengal, Department of Panchayats and Rural Development conveyed to the
Commissioner of Panchayats Rural Department, West Bengal that the Labour
Department having framed guidelines on the issue of compassionate
appointment vide notification no. 97-Emp dated June 6, 2005, “the same
principles and procedure will also be adopted in dealing with the similar issues in
respect of the employees of the three-tier Panchayati Raj Bodies until further
orders”.
49. Notification no. 97-Emp dated June 6, 2005 was followed by several corrigenda
(dated August 26, 2005, September 8, 2005, February 8, 2006 June 26, 2007
and October 1, 2007). The Government at one point of time considered it
necessary and accordingly, after careful review of the matter, decided to rescind
notification no. 97-Emp dated June 6, 2005 together with
corrigendum/orders/notifications issued in the context of the said notification
and by notification no. 30-Emp dated April 2, 2008 restored the position which
was prevailing prior to the issue of notification no. 97-Emp dated June 6, 2005
subject to such modification and clarification as specifically mentioned therein.
50. Clause 2(2) of the notification dated April 2, 2008, however, did not alter the
species of dependants and reads as follows:
“For the purpose of appointment on compassionate ground a dependent of a
government employee shall mean wife/husband/son/unmarried daughter of
the employee who is/was solely dependant on the government employee.”
51. After notification no. 30-Emp dated April 2, 2008 was issued, certain
requirements were liberalised vide notification no. 14-Emp dated August 14,
2008 with which we are presently not concerned.
52. At this stage, memo no.43 dated February 3, 2009 was issued by the Department
of Panchayats Rural Development for regulating appointment on
compassionate ground to the dependants of deceased employees of Panchayati
Raj Bodies upon it being noted that notification no. 97-Emp dated June 6, 2005,
based on which memo dated July 12, 2005 referred to above was issued by such
department, had been rescinded by notification no. 30-Emp dated April 2, 2008.
The notification dated February 3, 2009 also insisted that for the purpose of
appointment on compassionate ground, ‘a dependent of an employee’ of
Panchayati Raj Bodies shall mean wife/husband/son/unmarried daughter of the
employee, who is/was solely dependent on the concerned employee.
53. Soon thereafter, instances were brought to the notice of the Government that
daughters of employees, who at the time of their death or premature retirement
were unmarried, had contracted marriage during the pendency of the
applications that they had made for compassionate appointment soon after such
death/premature retirement on medical grounds. On the question of
admissibility of such married daughters for a job on compassionate ground, it
was decided by the Government and conveyed by notification no. 4-Emp dated
January 4, 2011 that:
“a married daughter of the Government employee who, at the time of death
or pre-mature retirement of the concerned Government employee, was
unmarried, shall be considered for appointment on compassionate ground
in terms of Labour Department Notifications No. 30-Emp dated 02-04-
2008 and No. 114-Emp dated 14-08-2008 subject to the condition that she
submits an affidavit to the effect that she will pass on one-third of the
emoluments that she will receive as salary and other benefits for the post,
that she will occupy, to her parental/maternal family”.
54. This was followed by notification no. 251-Emp dated December 3, 2013 issued by
the Labour Department, Government of West Bengal. A scheme titled the West
Bengal Scheme for Compassionate Appointment, 2013 (hereafter the SCHEME)
was introduced thereby, in supersession of all previous orders in respect of
compassionate appointment. Paragraph 2 of the SCHEME made it applicable to a
dependant family member of a government employee who (a) dies while in service;
or (b) is disabled permanently or otherwise incapacitated rendering him unfit to
continue in service prematurely on being declared permanently incapacitated by a
Medical Board formed by the Government. Dependent family members and
Government employee were defined in paragraph 3 to mean:
“(a) spouse; or
(b) son (including legally adopted son before death or incapacitation); or
(c) unmarried daughter (including legally adopted unmarried daughter
before death or incapacitation); or
(d) married daughter who on date of death or incapacitation was
unmarried; or
(e) brother or sister in case of death-in-harness of an unmarried
employee provided his/her parent, all the brothers and sisters were
fully dependent on him/her,who was wholly dependent on the Government employee at the time of
his death-in-harness or incapacitation, as the case may be, and is in
need of immediate financial assistance at the time of making application
and also at the time of consideration.
(f) ‘Government employee’ for the purpose of this scheme means a
Government employee appointed on regular basis and not the one working
on daily wage or casual or apprentice or ad-hoc or contract or re-
employment basis.”
(bold in original)
55. In terms of paragraph 4 of the SCHEME, such appointments could be made in
respect of Group C and D posts only in the exempted category vacancies. While
paragraph 5 refers to the authorities competent to make compassionate
appointment, paragraph 6 lays down detailed eligibility criteria which an
applicant for compassionate appointment should fulfil, if he is covered by the
definition of dependent family members. It is noted that paragraph 6(a) provides
the formula for assessment as to whether the family of an employee dying-in-
harness is really indigent and deserves immediate assistance for relief from
financial destitution. Two conditions are specified of which one has to be satisfied
or else the family may not be viewed as indigent deserving immediate relief. The
SCHEME also contains in paragraph 8 an exemption clause. Inter alia,
compassionate appointments are exempted from observance of the regular
recruitment procedure i.e. without involving the Public Service Commission/Staff
Selection Commission and other Boards constituted for recruitment or
sponsoring of names by the employment exchange. The procedure for making an
application is spelt out in paragraph 10 and paragraph 14(c) ordains as follows:
“(c) Compassionate appointment in any case would not be a matter of right
but it would be subject to fulfillment of all the conditions, enquiries,
availability of vacancy at the appropriate level etc.”
56. Within 7 (seven) months of introduction of the SCHEME, instances came to the
notice of the Government of a divorcee daughter or a legally separated daughter
being compelled to take shelter in her parental home for the sake of her own
sustenance along with off-springs and becoming totally dependent on her
parents. The question of including a divorcee daughter in the list of dependent
family members in the SCHEME had received active consideration of the
Government and accordingly, by notification no. 323-Emp dated July 23, 2014,
the Governor was pleased to order that a ‘divorcee daughter shall be included in
the list of dependent family member as defined under para 3 of notification no.
251-Emp dated December 3, 2013, subject to following conditions:
“(a) An applicant should have been legally divorced prior to
death/incapacitation of the Govt. employee and was fully dependent on
him/her.
(b) An applicant must have obtained decree of divorce issued by the
competent authority of an Hon’ble Court.
(c) In case she has been receiving any maintenance cost from her husband,
the same will be taken into account to decide her eligibility.
(d) All other conditions as in the above Notification are to be satisfied.”
The notification dated July 23, 2014 was deemed to have come into effect from
December 3, 2013.
57. Certain clarifications were provided vide notification no. 26-Emp dated March 1,
2016 in respect of a divorcee daughter. The revised provisions which were to be
inserted as para 3 (dd) in the notification dated December 3, 2013 by bringing
about changes in the existing guidelines, to the extent relevant for decision by us,
read as follows:
“(a) A divorce (sic divorcee) daughter, who has become dependent on the
family, and the divorce petition was filed before the death/permanent
incapacitation of the Govt. employee.
(b) She must have obtained decree of divorce issued by the competent
authority of an Hon’ble court, either before or after the death of the
Government Employee.
(c) In case she has been receiving any maintenance cost from her husband,
the same will be taken into account to decide her eligibility.”
58. These are all the notifications/circulars that have been brought to our notice by
the learned advocates for the parties.
Memorandum dated June 8, 2012
59. Although not placed before us in course of hearing, a memorandum bearing no.
4791-F(P) dated June 8, 2012 issued by the Joint Secretary to the Government of
West Bengal, Finance Department, Audit Branch was enclosed with the written
notes of argument filed by Mr. Mondal on behalf of Kakali. The said
memorandum reads as follows:
“No. 4791-F(P), Kolkata, the 8th June, 2012.
MEMORANDUM
As it is often experienced various difficulties in the matter of payment of the
cash equivalent of leave salary to the family of a deceased employee, the
question of modification of definition of family as envisaged in Note 1 below
rule 168B of WBSR Part-I has been under consideration of the Government
for some time past.
2. After careful consideration of the matter/the undersigned is directed by
order of the Governor to say that the Governor has been pleased to modify
the definition of family as in Note 1 below rule 168B of WBSR Part-I in the
following manner:-
i) The term family for the purpose of rule 168B of WBSR Part-I shall mean
and include the following:-
(1) wife or husband, as the case may be;
(2) minor sons including legally adopted sons;
(3) unmarried, minor daughters including legally divorced, widowed and
legally adopted unmarried daughters;
(4) dependent parents;
(5) adult sons;
(6) sons of predeceased sons;
(7) married daughters;
(8) minor brother and unmarried including legally divorced and widowed
sisters;
(9) adult brothers and married sisters;
ii) Cash equivalent of leave salary shall be first paid to the relations at serial
No. (1). If there is no such relation then it will be paid to the relations at
serial No. (2) and so on. Under no circumstances one serial No. shall be
clubbed with the other. In case there are more than one relations under a
particular serial No. the amount is to be paid to each of them in equal share.
If any relation is minor, the amount shall be paid to his legal guardian.
3. Necessary amendment in the WBSR Part-I will be made in due course.”
60. We have, however, not been shown the notification by which Rule 168B of the
West Bengal Service Rules, Part – I may have been amended; hence, it would not
be proper to rest our findings considering the contents of the said memorandum.
Decision
61. That compassionate appointment is not a regular source of recruitment, that it is
an exception to the general rule of recruitment and cannot be claimed as a
matter of right, that it is not a heritable property and that a claim for
compassionate appointment has to be considered confined to whatever is
provided for in the relevant scheme and not beyond, are propositions of law
which are too well-settled. We, therefore, do not propose to separately refer to all
such decisions cited by the parties that lay down the law noted above, and
burden this judgment unnecessarily.
62. However, bearing in mind these well-settled principles of law, there seems to be
room for doubt on a couple of aspects which need to be cleared.
63. First, although appointment on compassionate grounds can only be made
following the laid down policy, a given case may require examination of the point
as to whether an employer has unfettered, unbridled and uncontrolled authority
to specify who shall be eligible for compassionate appointment. Putting it
differently, can the employer be given a free hand and allowed to act arbitrarily
and specify a particular class of persons as entitled to apply for compassionate
appointment? If the action of the employer is found to be arbitrary on a challenge
being laid, is the court powerless to strike down the specification? None is above
the Constitution and, therefore, decisions based on whims and caprices have no
place in the system. Since in the fast expanding maze of judicial control every
administrative action affecting rights of citizens is amenable to challenge, we are
of the view that the questions posed in this paragraph cannot but be answered in
the negative. So answered, the possibility of an appointment being directed upon
striking down the policy cannot be ruled out. We would, therefore, read the
statement of law that appointment beyond the policy cannot be made applies in
cases where the policy or the relevant scheme is not under challenge. If the policy
or the relevant scheme is challenged and the court finds merit in such challenge,
different considerations are bound to arise and it is for the court to pass such
order that would be warranted on facts and in the circumstances.
64. Secondly, we may at this stage record having noticed a divergence of opinion of
the Supreme Court on one point. The Supreme Court in paragraph 5 of its
decision in Abhishek Kumar v. State of Haryana [(2006) 12 SCC 44] held that the
appellant’s application for compassionate appointment was required to be
considered in terms of the rules which were in force at the time of filing of the
application, i.e. the rules in existence in the year 2001 (his father having expired
on February 10, 2001 and an application having been filed within two weeks
thereafter). We read it as laying down the law that an application for
compassionate appointment ought to be considered in the light of the policy
in vogue when such application was made. However, the subsequent decision in
Raj Kumar (supra), without noticing Abhishek Kumar (supra), appears to have
taken a view that is apparently inconsistent and the two views cannot be
reconciled. It has laid down the law that if during the pendency of an application
for compassionate appointment the relevant scheme is substituted by a new
scheme, the application has to be considered in terms of the new scheme and not
the scheme that has become extinct.
65. In Manoj Kumar Deharia (supra), a Special Bench of three Judges of the Madhya
Pradesh High Court was constituted to consider the following question(s):
“In a case (sic of) compassionate appointment pursuant to the death of a
deceased employee, which policy of the Government is to be applied:-
1. The policy prevailing at the time of the death of employee?
OR
2. The policy prevailing at the time of application for compassionate
appointment?
OR
3. The policy prevailing at the time of consideration of the application for
compassionate appointment?”
66. The learned Judges of the Bench were not ad idem. The majority held that
the policy prevailing at the time of consideration of the application for
compassionate appointment would be applicable without, however referring to
the decision in Abhishek Kumar (supra). The minority view, considering the
decision in Abhishek Kumar (supra), is that the application for compassionate
appointment should be considered pursuant to the policy prevailing at the time
the application was filed.
67. The divergence of opinion of the Supreme Court on the point noted, however,
may not create any difficulty for deciding the question formulated by us since
although minor changes in the policy here and there have been made, the
Government has been consistent in its stand that whatever be the
circumstances, a daughter who is married on the date of death of the concerned
Government employee (like Purnima, Arpita and Kakali) would not be considered
for appointment on compassionate ground at all. In other words, they are
altogether excluded from entering into the zone of consideration. That apart, the
law in this State as to which policy would govern an application i.e. the one in
force at the time of application or the one at the time of consideration, appears to
be in a fluid state. In keeping with the circumstances of a given case, the relevant
date is bound to be flexible. Insertion of clause (dd) in paragraph 3 of the
SCHEME and the revised provisions incorporated by notification no. 323-Emp.
dated July 23, 2014 read with notification no. 26-Emp. dated March 1, 2016
would bear testimony to this part of our observation. Be that as it may.
68. Whether the Government is justified in excluding ‘married daughters’ from the
zone of consideration for compassionate appointment being the topic of debate,
at the outset we need to keep the record straight. Although the subject reference
arose because conflicting decisions of Division Benches were noticed by the
Division Bench on June 25, 2015 while hearing FMA 1277 of 2015 and such
appeal was directed to be placed before a larger Bench, the decisions in conflict
with each other were not noted in the order of reference. It is, therefore, difficult
for us to resolve the conflict that was intended by the Division Bench by referring
the appeal to a larger Bench. However, tagging of the writ petitions of Arpita and
Kakali with FMA 1277 of 2015 has sort of enlarged the scope of examination of
the policy of the Government in respect of compassionate appointment. While
Purnima’s case was confined to the Department of Panchayats Rural
Development, the other two cases relate to the Department of Labour. The memo
dated February 3, 2009 issued by the former department had its roots in the
notifications of the latter department and involvement of such department
necessitated formulation of the question as in paragraph 6 supra. We are of the
view that the said question, as of necessity, has to be decided together with the
merits of the writ appeal and the writ petitions based on our own understanding
of the law, and bearing in mind the decisions relevant thereto that the parties
have cited.
69. The decision of the Kerala High Court in V. Sunithakumari (supra) seems to be
the first in the series of decisions on the issue, rendered twenty five years back.
Thereafter, decisions rendered by most of the high courts have come at a steady
pace and it is again difficult to say with precision on which side the scales tilt.
There may have been other decisions too, which were not cited before us. It is in
such a situation that we tried to locate a decision of the Supreme Court directly
on the issue which, having regard to its binding effect, would put a quietus to the
issue. The point arising for an answer in Vijaya Ukarda Athor (Athawale) (supra),
cited by Mr. Mondal, seemed to bear close resemblance to the issue we are seized
of. However, the point as to whether a married daughter would be entitled to
compassionate appointment was not decided and the same was remitted to the
Bombay High Court for fresh decision. The issue qua the Supreme Court is,
therefore, not yet res integra. We have found on perusal of all the decisions of the
high courts including this Court that each decision turned on the interpretation
of the rules/regulations embodying the policy of compassionate appointment
under consideration and the definition of ‘dependent’/’family’ therein. In our
view, the facts of each case are important and one additional or different fact may
make a world of difference between conclusions in two cases. That apart, except
in a couple of matters considered by the high courts, the issue of
constitutionality of a clause of the scheme/rules for compassionate appointment
did not arise for decision. All the decisions are of immense persuasive value,
being decisions of the high courts of the country, and are entitled to respect and
reverence. However, we would prefer to discuss only those decisions which we
consider imperative in the process of our decision making and omission to refer
to any particular decision may not be viewed as avoidance on our part to
consider the view expressed therein.
70. Decisions of the Supreme Court are legion that strictly speaking, the claim for
compassionate appointment cannot be upheld on the touchstone of Articles 14
and 16 of the Constitution. Insofar as public employment is concerned, there are
recruitment rules which have to be followed by each and every public employer.
However, departure is permitted in case of compassionate appointment or, as in
the present cases, where ‘exempted category’ vacancies are sought to be filled up
in terms of the 1999 Act. The Public Service Commission/Staff Selection
Commission need not be consulted and names may not be requisitioned from the
employment exchanges. Conceiving such departure from the recruitment rules
and translating it into action may not have been possible, if the object of
extending compassionate appointment been totally alien to constitutional norms
and principles. The very object of compassionate appointment is to relieve the
members of the family of a Government employee who either dies or retires
prematurely on medical grounds, leaving his family in penury, from economic
distress. We are inclined to the view that compassionate appointment being a
measure designed to give relief from financial destitution, it is aimed at securing
social justice which is one of the promises that the people of this country had
made while adopting its Constitution. It is such promise that shields a policy for
appointment on compassionate ground from being struck down as violative of
Articles 14 and 16 of the Constitution.
71. Conditions which are inevitably required to be fulfilled by an applicant for
appointment on compassionate ground in terms of a scheme framed in that
regard are three fold: (i) the immediate need for an appointment; (ii) identification
as dependent and satisfaction in relation to dependency; and (iii) possessing
required qualifications. The first condition i.e. immediate need has to be of
paramount consideration for an employer while it proceeds to consider a claim
for compassionate appointment. Such need might arise out of a death of an
employee or even physical incapacitation of an employee rendering him disabled
to continue in service. In either case, it has to be established that unexpectedly
the family of the concerned Government employee has been put to extreme
financial distress, so much so that but for an appointment of a dependent on
compassionate ground, the family members of the deceased employee may not
survive. It is, therefore, the need for immediate relief to mitigate the hardships
arising out of sudden death of the bread-winner or premature retirement due to
physical incapacitation that every policy for compassionate appointment, framed
by a public employer, seeks to address. Who would be considered for such
appointment and in what manner, are secondary in the scheme of things and
form part of the procedure that is laid down in every policy. If the first condition
is unfulfilled, question of satisfaction of the other two conditions does not arise at
all. Should the immediate need for relief be established, arises the question of
identifying who could be regarded as a dependent from amongst family members
of the deceased/physically incapacitated Government employee and whether
such person was at all dependent on the earnings of the concerned employee
prior to his death or premature retirement. It is axiomatic that although the
financial distress of the family may be pronounced, compassionate appointment
cannot be offered to anyone in the family who was not dependent on the earnings
of the employee, who is either dead or physically incapacitated, in the real sense
of the term. A person dependent would be one who for his survival was entirely
dependent on the earnings of the Government employee and should he/she be
appointed, is likely to take care of the other family members by his/her earning.
It is permissible for the State to categorise persons to be comprised in ‘dependent
family member’; however, in the exercise of making such categorisation, care
must be taken to ensure that no class of dependants is excluded without there
being a plausible justification. The exclusion, if challenged, must pass the test of
reasonable classification. Passing of the ‘dependency’ test is, therefore, no less
important. Next, even the immediate need as well as dependency would not
clothe the dependent so identified for being favoured with compassionate
appointment unless he/she qualifies in terms of the eligibility criteria for such
appointment, meaning thereby that he/she must be in the required age-group
and possess minimum educational qualifications for public employment. It is in
the background of these three conditions that we are to consider whether the
policy decision of the State Government to exclude ‘married daughters’ from the
scope of compassionate appointment is constitutionally valid.
72. All the claims for compassionate appointment presently under consideration have
arisen because of death of the father/mother of the applicants for compassionate
appointment. We shall, therefore, refer only to the aspect of death hereafter,
although it is needless to observe that whatever is said in regard to death would
also apply to physical incapacitation with little or no variation.
73. Although Mr. Majumdar has argued that none of the applicants seeking
compassionate appointment has really questioned the vires of the
notifications/SCHEME for compassionate appointment introduced by the State
right from June 6, 2005 (when the first notification under the 1999 Act came into
existence) as contrary to and/or offending Articles 14, 15 and 16 of the
Constitution and prayed for an appropriate declaration for its quashing on the
ground of constitutional invalidity, we do not find such argument to be entirely
correct.
74. In her writ petition, Purnima pleaded in paragraphs 12 to 15 that clause (2) of the
notification dated February 3, 2009 was contrary to the spirit of Articles 14 to 16
of the Constitution. Additionally, it was pleaded in paragraph 16 that the said
notification having travelled beyond the spirit of the Constitution, it ought to be
set aside by holding it unconstitutional and ultra vires Articles 14 to 16 of the
Constitution. True it is that a formal prayer to the said effect was not there in the
writ petition but the essence of Purnima’s grievance that she has been the victim
of a decision of the Government, which she perceives to be unconstitutional, was
and is well within the knowledge of the respondents.
75. Insofar as Arpita is concerned, paragraph 4.22 of the original application filed by
her as well as ground no. VI urged in support of relief claimed therein reveals
that exclusion of ‘married daughters’ from the zone of consideration for
compassionate appointment despite Arpita being dependent on the earnings of
late Amit Sarkar have clearly been contended to be ultra vires Article 14 of the
Constitution. Not only that, but for whatever it is worth, the Advocate General
was impleaded as a respondent in the original application of Arpita. While we
condemn such impleadment of a constitutional authority as a respondent
without any relief having been claimed against him by Arpita, we visualize the
raising of a constitutional issue before the WBAT for which, mistakenly, without
directing notice to be served on the Advocate General as is usually directed when
the vires of a State Act/Rule is questioned, it permitted such impleadment. It is,
therefore, not a case where the State has been taken by surprise by reason of a
constitutional issue being raised in course of arguments without the factual
foundation therefor being laid. The foundation was very much there, although as
rightly submitted by Mr. Mitra that the proper prayer had not been made. We,
therefore, do not see this as a real impediment for a decision on the
constitutionality of the Government’s policy decision to exclude ‘married
daughters’ from the zone of compassionate appointment.
76. Insofar as Kakali is concerned, her application for compassionate appointment
had not been rejected by the relevant department. Therefore, she did not have the
opportunity to challenge any order of the respondents refusing her claim.
77. A question, which forms part of the pleadings and in respect of which the parties
are at variance thereby giving rise to an issue, can be decided by the court, is
well settled. The writ courts also have the power to mould relief in an appropriate
case if there are supporting averments in the writ petition. We hasten to add that
the question formulated by us arises from the pleadings that Purnima and Arpita
had placed before the learned Judge of the writ court and the WBAT respectively,
and is a question of seminal importance which we thought requires an answer;
and, we now propose to proceed in that direction.
78. In the celebrated decision of the Supreme Court reported in AIR 1952 SC 75
(State of West Bengal v. Anwar Ali Sarkar), Hon’ble S.R. Das (as His Lordship
then was), probably, for the first time propounded that Article 14 prohibits class
legislation but not reasonable classification. In His Lordship’s view, to pass the
test of reasonable classification, two conditions must be fulfilled, namely, that (i)
the classification must be founded on an intelligible differentia which
distinguishes those that are grouped together from those left out, and (ii) the
differentia must have a rational relation with the object sought to be achieved by
the legislation. The differentia which is the basis of the classification and the
object of the legislation are distinct things and what is necessary is that there
must be a nexus between them. In short, while the Article forbids class
legislation in the sense of making improper discrimination by conferring
privileges or imposing liabilities upon persons arbitrarily selected out of a large
number of other persons similarly situated in relation to the privileges sought to
be conferred or the liability proposed to be imposed, it does not forbid
classification for the purpose of legislation, provided such classification is not
arbitrary.
79. Here, the differentia that seeks to distinguish those who are included within
‘dependent family member’ from others is the marital status of a daughter of a
Government employee who dies-in-harness. The object of compassionate
appointment, as we have noticed earlier, is to save a family from economic
distress. It must, therefore, be examined whether the differentia is intelligible and
reasonable; if so, whether such differentia has any nexus with the object of the
policy for compassionate appointment.
80. Let us now examine whether the twin tests of a reasonable classification are
satisfied or not.
81. We had looked into the affidavit-in-opposition that was filed on behalf of the
respondents before the learned Judge while His Lordship was considering the
writ petition of Purnima. The learned Judge was right in returning a finding that
the rationale or logic for excluding married daughters is absent in such affidavit.
Despite extending opportunity to the State to file a further affidavit, there has
been no significant change. The affidavit that has been filed by the law officer
refers only to the dicta that Mr. Majumdar in course of his submission has cited
for our consideration. Entry 24 of the Second Schedule to the Rules of Business,
inter alia, requires alteration “in the method of recruitment to the service or post
to which appointment is made by the Government” to be placed before the
Cabinet. We are not too sure whether the notifications issued under the 1999 Act
or the SCHEME that has been framed, have the approval of the Cabinet or not.
Whatever might be the case, the notes for consideration of the Cabinet/Minister-
in-Charge of the concerned department that could have reflected why it was
considered necessary to exclude “married daughters” from the zone of
consideration of compassionate appointment and which must have been placed
for consideration either of the Cabinet or the Minister-in-Charge of the
department for approval in terms of the Rules for Business, as the case may be,
are conspicuous by its absence. The opportunity of filing an affidavit was
extended to the Government on its own asking when Mr. Majumdar faced the
difficulty of assailing the judgment and order under appeal based on the affidavit
filed before the learned Judge, which was bereft of the logic and/or rationale
behind exclusion of married daughters. We are, thus, pained to observe that the
Government has not rendered appropriate assistance to us by conveniently
withholding the cabinet/departmental notes. In the absence of the same, we have
no other option but to also observe that either the Government may not have
possibly visualised or, even if it had visualized, has arbitrarily decided not to give
credence to the unfortunate situations that occur throughout the State where
married daughters are compelled to take shelter in their parental home and
survive on the earnings of their father/mother (Government employee).
82. The reason/argument advanced by the Government for completely excluding
married daughters (those who are married on the date of death and not having
filed for divorce) from even applying is that the daughter upon marriage belongs
to the husband’s family and not the family of the deceased employee and,
therefore, the classification made on the basis of marital status is valid.
83. In support thereof, inspiration has been sought to be drawn from the decisions in
V. Sunithakumari (supra), Sunita Bhadooria (supra), Meera Devi (supra), Smt.
Shobha (supra), Lipita Adhikary (supra), Swati Bose (Ghosh) (supra), Kumari
Purnima Bhui (supra), Chameli Bag (supra), Shilpi Mishra (supra), Urmila
Kanwar (supra), Jolly Dey Bose (supra), Kumari Manju (supra), Smt. Kamlesh
(supra), and Sanju (supra). We propose to consider these decisions a little later.
84. The classification here is brought about by excluding ‘married daughters’ of a
deceased Government employee from the purview of compassionate appointment,
and the so called “intelligible differentia” put forward is that ‘married daughters’
cease to be part of the family of the Government employee on marriage. As
noticed earlier, the object of appointment on compassionate ground is to save the
wrecked family by ensuring that the dependents have a few crumbs of bread and
a few yards of cloth. This raises a few important questions. First, as to who could
form a class to which the scheme for compassionate appointment would apply?
The appropriate answer would be the immediate members of the family of the
deceased employee. This question being answered, the incidental question would
be who are the immediate family members? For a broad idea of who would
constitute the family of a person, the relevant personal laws including family and
succession laws may be looked at. However, in the context of compassionate
appointment, such laws may not be seen because the purpose thereof is totally
different. We are inclined to hold that for the purpose of a scheme for
compassionate appointment every such member of the family of the Government
employee who is dependent on the earnings of such employee for his/her survival
must be considered to belong to ‘a class’. Exclusion of any member of a family on
the ground that he/she is not so dependent would be justified, but certainly not
on the grounds of gender or marital status. If so permitted, a married daughter
would stand deprived of the benefit that a married son would be entitled under
the scheme. A married son and a married daughter may appear to constitute
different classes but when a claim for compassionate appointment is involved,
they have to be treated equally and at par if it is demonstrated that both
depended on the earnings of their deceased father/mother (Government
employee) for their survival. It is, therefore, difficult for us to sustain the
classification as reasonable.
85. From the notifications/SCHEME of the Government that embodies the policy
decision in relation to compassionate appointment, it is manifest that from time
to time qua daughters the net has been spread far and wide. We can safely
presume that the Government did so realising its mistake of failing to fulfil the
constitutional mandate of guaranteeing equality and obeying the directives in
Part IV of the Constitution that men and women equally have the right to an
adequate means of livelihood. Initially and even till today ‘married daughter’ has
not been included in the definition of ‘dependent family member’; however,
gradually, without removing the adjective ‘unmarried’ before the noun ‘daughter’,
categorisation of daughters has been effected and we are inclined to the view that
even a ‘married daughter’, as explained hereafter, is now impliedly included
within the definition of a ‘dependent family member’. The first category is that of
daughters who were unmarried on the date of death of the Government employee
but may have been married during the pendency of the applications for
compassionate appointment. If such daughter were found to be otherwise eligible
and suitable, she would be offered compassionate appointment notwithstanding
her marital status. Therefore, it is an instance of a daughter being considered for
appointment at a point of time when she is actually married. In the second
category are married daughters who might have filed for divorce prior to death of
the Government employees and had obtained divorce decrees after such death
and during the pendency of the applications, with the rider that their cases
would be considered for appointment only after the marital ties are dissolved by
the decrees of competent courts. Thus, it is a reverse case of the first category, ~
a ‘married daughter’ at the time of making application being considered for
compassionate appointment at a point of time when she is unmarried or single.
In both cases, it has to be proved to the satisfaction of the employer that such
daughters, belonging to either of the two categories as aforesaid, were fully
dependent on the Government employees on the dates of their death while in
service. It is, however, obvious that the net is yet to be spread wider to cover a
married daughter, who because of estranged relationship with her husband,
might have been abandoned or deserted by him and compelled to survive under
the care of her father/mother (Government employee) as a dependent of such
employee and was also fully dependent on him/her on the date of his/her death,
leading to a grievance of the present nature.
86. Curiously enough, the marital status of the son of a deceased employee is not
regarded as germane for telling him off at the threshold. His application for
compassionate appointment would be considered and if found that he was not
dependent on the earnings of his father/mother (Government employee), then
only the application could call for rejection.
87. What follows from the aforesaid discussion is that even if a married daughter on
the date of death of her father/mother was wholly dependent on him/her, she
would have no right under the notifications/SCHEME to even apply and offer her
candidature. Without even a bare assessment of the dependency factor, the
application of the married daughter would stand rejected whereas such an
application at the instance of a married son would be considered and then an
appropriate decision taken, based on evidence that is before the employer,
whether to allow or disallow the same. This is one area where the learned Judge
in the decision in Purnima Das (supra) has taken exception and held that
married daughters are subjected to discrimination. We unhesitatingly share such
view.
88. Interestingly, we have noticed that while the adjective ‘unmarried’ has been used
before the noun ‘daughter’, there is no such use of the adjective ‘unmarried’
before the noun ‘sister’ in paragraph 3 of the SCHEME. In the absence of user of
such adjective, theoretically, even a married sister of an unmarried Government
employee who dies-in-harness would be entitled to lay a claim for compassionate
appointment and should she succeed in establishing that she had been fully
dependent on her brother/sister (Government employee) prior to and at the time
of death, and all other conditions as laid down in the SCHEME being fulfilled, her
claim for compassionate appointment cannot be spurned based on her marital
status and would obviously have to be considered further to take the same to its
logical conclusion; but, howsoever precarious the condition of a married daughter
dependent on her father/mother might be, she is shut out from even applying
and, thus, there is no scope to consider whether she was at all dependent for her
survival on the earnings of her deceased father/mother (Government employee)
or not and also as to whether appointing her on compassionate ground would
further its object or not.
89. Law relating to compassionate appointment, made by the legislature, has not
come to our notice; rather, it is seen as a task of the executive to decide as a
matter of policy how best it could be framed for catering to the need of those in
mind. While legislating on a subject, the legislators may not be expected to
visualise all future situations and that precisely is the reason for which
subordinate legislation is considered indispensable for filling up the gaps. Ideally,
when the necessity to frame a scheme arises as a social welfare measure, we feel
that it ought to be the duty of the framers to take into consideration all
conceivable situations that such scheme could cover to satisfy its avowed object.
Regrettably, the scheme of the Government is deficient by failing to provide for
those married daughters who could, given a chance, establish their dependency
on their bread-winner father/mother (Government employee) who passes away
while in service. Instead of a total exclusion from the purview of the scheme of
compassionate appointment, the Government could have considered qualifying
such exclusion by stipulating that those married daughters having the support of
their matrimonial homes would stand excluded. Such stipulation, apart from
lending credence to the scheme, would be in accord with the equality clause
enshrined in Articles 14 and 16 and the directive contained in Article 39(a). We
are minded to make such observation bearing in mind that every law enacted or
scheme introduced having the force of law, particularly welfare legislation for the
benefit of the weaker section of the people, must be implemented in the proper
spirit for achieving the noble object for which such law or scheme is brought into
existence.
90. We shall now notice the decisions of the high courts relied on by Mr. Majumdar.
91. Having perused the decision in V. Sunithakumari (supra), we find that the
learned Judge proceeded on the assumption that with marriage the dependency
of a daughter on her father ceases and she becomes a dependent of her husband;
and once dependency comes to an end consequent to marriage, she cannot
complain of discrimination or unreasonable classification.
92. In Kumari Manju (supra), a learned Judge of the Patna High Court in paragraph
8 noticed the fundamental distinction between considerations for compassionate
appointment in the employment under the State and the obligation to maintain
infirm parents or the right of inheritance under the personal law. According to
His Lordship, while the obligation to maintain an aged and infirm parent is an
obligation which is personal in character and such an obligation arises from the
very existence of relationship between the parties, in the case of compassionate
appointment, there is no obligation of the State of a personal character nor does
the applicant seeking compassionate appointment stand in the category of any
special relationship with the State. It was further expressed that an appointment
on compassionate ground being an inroad to the principles of Articles 14 and 16
of the Constitution, in the matters of grant of such appointment proper rules and
regulations must be framed and when such rules and regulations are framed, in
such case those rules and regulations must be strictly adhered to. It was also
held that normally (underlining for emphasis by us) a married daughter goes out
of the family after her marriage and is not considered a dependent of the family
to which she belonged before her marriage and, therefore, the exclusion of the
married daughter from the category of the dependent in the circular in question
was not violative of Article 14 of the Constitution.
93. The Division Bench in Sunita Bhadooria (supra) held in paragraph 4 that
averments made in the writ petition were contradictory and it is liable to be
dismissed at the threshold. In paragraph 6, it was held that in view of the
admitted facts enumerated in paragraph 5, it would be a futile exercise to
proceed with the case since the petition had been filed in a most casual and
cavalier manner. The Bench went to the extent of observing that filing such kind
of petition amounts not only to abuse of the process of court but also criminal
contempt. Despite these observations, the Bench proceeded to examine the
purpose of framing of the relevant rules and upheld the impugned rule “for the
reason that married daughters form part of the family of their husbands”
(paragraph 7).
94. In Meera Devi (supra), the Hon’ble the Chief Justice of the Patna High Court
authored the decision of the Division Bench. The order under appeal remitted the
application made by the respondent for compassionate appointment of her
married daughter for reconsideration to the concerned committee. While hearing
the appeal the Bench found that a married daughter was not eligible to be
considered in terms of the extant rules and, thus, reversed the order impugned.
95. Lipita Adhikary (supra) was decided by a Division Bench of this Court. The
mother (Government employee) died on June 17, 1995 while in service. The
petitioner’s marriage was dissolved by a decree of divorce on May 27, 2006. She
thereafter applied for compassionate appointment. The Bench observed that the
petitioner was married at the time of death of her mother and it cannot be said
that she was solely dependent on her mother. Based on such reasons, the writ
petition was dismissed.
96. The Division Bench of the Karnataka High Court in Smt. Shobha (supra) noticed
that there was a total bar for appointment of married daughters on
compassionate ground and in view thereof held that there was no question of
consideration of the prayer; hence, dismissal of the writ petition followed.
97. The Division Bench of this Court in Purnima Bhui (supra) was considering a
challenge to a judgment and order which held that refusal to give compassionate
appointment to a married daughter is discriminatory and violative of the
Constitution. Speaking through the Hon’ble the Chief Justice, the Division Bench
set aside the judgment and order under appeal on the ground that when the
policy excluded the married daughter, the court could not substitute the policy
as the policy could not be said to be illegal or arbitrary. Such opinion is
discernible upon reading paragraphs 17 and 18 of the decision. In paragraph 12
of Purnima Bhui (supra), however, we find the guarded opinion of the Division
Bench that “after marriage normally daughter goes to other family and is not
supposed to be dependent upon the earnings of her father” (underlining for
emphasis by us).
98. In Chameli Bag (supra), the married daughter (appellant) was allegedly driven out
by her husband in 2002. The appellant’s father, a Government employee, died-in-
harness on March 4, 2010. A petition for divorce was filed on July 2, 2010 by the
appellant, which was decreed on August 18, 2011. The application for
compassionate appointment was filed in October, 2010. The Hon’ble the Chief
Justice presiding over the Division Bench of this Court having regard to the
aforesaid facts and circumstances opined that there was an attempt to “create
ground subsequent to the death of the deceased in order to claim appointment
on compassionate ground on the part of the appellant” and the appeal was,
accordingly, dismissed.
99. A learned judge of the Madhya Pradesh High Court in Shilpi Mishra (supra)
repelled the challenge laid by the petitioner to the order negativing her claim for
compassionate appointment as well as clause 2.2 of the relevant circular by
holding as follows:
“9. Thus, if the policy for appointment on a compassionate ground has been
brought in vogue where certain class of dependents are recognized for
consideration for appointment on compassionate grounds, the same, in the
considered opinion of this Court will, not be violative of Article 14 and 16 of
the Constitution of India, because it does not include certain other
categories. A married daughter whose husband is alive cannot be treated to
be dependent on her father merely because her husband is unemployed. In
that case it is the son-in-law who would be dependent on his father-in-law
rather than the daughter dependent of her father.”
100. The Division Bench of the Rajasthan High Court in Urmila Kanwar (supra) found
no reason to differ with the decision under appeal on the ground that in terms of
the rules of 1996 or as per the notification dated December 31, 2010, the
appellant being a married daughter of the deceased employee cannot be
considered to be dependent member of the family of the deceased.
101. While disposing of the writ appeal in Jolly Dey Bose (supra), the Division Bench of
this Court in paragraph 16 observed that the applicant for compassionate
appointment could not substantiate her contention of being deserted by her
husband for which she had to take shelter in her father’s house. It was also
found that she had made contradictory statements in the writ petition and that it
“is palpable that with a view to secure an appointment on compassionate ground
the petitioner concocted a false story”. It is, thus, clear that the decision turned
on its own facts.
102. Upon consideration of rule 5 read with rule 2(c) of the Uttar Pradesh Recruitment
of Dependents of Government Servant Dying-In-Harness Rules, 1974 (framed in
exercise of power conferred by Article 309 of the Constitution) and a Full Bench
decision of the same Court in Km. Shehnaj Begum v. State of Uttar Pradesh (AIR
2014 Allahabad 66), the Division Bench of the Allahabad High Court in Poonam
Sharma (supra) held that the definition of ‘family’ in rule 2(c) of the said Rules
“being exhaustive, the same cannot be interpreted to mean and include any other
relationship except the one who have been defined therein”.
103. The Division Bench of the Punjab and Haryana High Court in Smt. Kamlesh
(supra) observing that after marriage, a daughter governed by Hindu Law, cannot
be considered as dependent of her father or dependent of a joint Hindu family
and she becomes the member of her in-laws family, held that such daughter after
marriage has no legal right to claim compassionate appointment after her father’s
death.
104. In Sanju (supra), a learned Judge of the Rajasthan High Court noticing that
compassionate appointments are governed by the Rajasthan Compassionate
Appointment of Dependants of Deceased Government Servants Rules, 1996
wherein the term ‘dependent’ is defined but such definition excludes a married
daughter, and a challenge to such provision does not exist, held that the prayer
for appointment was dehors the Rules. It is in such circumstances that the writ
petition was dismissed.
105. It would appear from a conspectus of the above decisions that in some of the
cases arising before it for decision, the concerned court did not interfere because
the relevant rule excluding a married daughter from the definition of ‘family’ or
‘dependent’ was not under challenge. Some of the decisions were decided on the
basis of the facts that emerged for decision. The other decisions, with respect, did
not go so far as to visualize that even after marriage the married daughter could
actually become a dependent of her father/mother and upon the need for
compassionate appointment being established, it is the dependency factor that
would merit consideration and not the marital status of the applicant.
Respectfully, we may observe that these decisions have not laid down any law
that could be of any assistance to us to decide the question formulated.
106. We would end this part of the discussion with the following concluding remarks.
The endeavour of Mr. Majumdar to support the policy decision of the Government
based on marriage of the daughter bringing about a change of status and proving
fatal for an appointment on compassionate ground, appears to proceed in
oblivion of husbands harassing and torturing wives in ample measure and
thereby creating a situation for the wives to withdraw from the matrimonial
household and return to her paternal home, usually the first refuge of one in
distress. Such situations are not uncommon in Indian conditions. A probable
situation could arise where a lowly paid Government employee dies-in-harness
leaving behind him his widow, mother, a minor child and one married daughter
(having the requisite qualification for appointment either on a Group ‘C’ or Group
‘D’ post) as his surviving heirs, but such a married daughter for whatever
reasons is abandoned or deserted by her husband and she comes back to the
care of her father and is entirely dependent on the earnings of her father, when
he suddenly passes away; although, the family passes the test of immediate need
for relief in terms of the notifications/SCHEME but apart from the married
daughter there is none in the family who is qualified for an appointment except
such daughter. Should the marital status of the daughter, in such a case, stand
in the way of her appointment? Upon marriage no doubt a daughter is regarded
as a member of her husband’s family but in our view that by itself may not be
determinative of whether she could be deprived of even the right to apply and be
considered for compassionate appointment, the object of which has need and
dependency as paramount considerations for making a departure from the
procedure of recruitment in accordance with Articles 14 and 16 of the
Constitution. It does not behove the State Government to take a policy decision
which, in effect, would be seriously prejudicial to a class of women who may have
earlier exercised their right of marriage. Article 15(3) empowers the State to make
special provisions for women and there is no reason as to why on the face of such
an enabling provision, the Government should at all put in place such a
restriction. Despite the marriage of a daughter, the bond of a father/mother with
such married daughter is never broken; she continues to live in the heart of her
parents. We are ad idem with the view expressed by the Division Bench of this
Court in Soleman Bibi (supra) that “a daughter undoubtedly acquires a new
relationship on marriage. She does not however lose the old relationship; she
remains a daughter. Once a daughter always a daughter: qua relationship she is
a daughter before, during and after marriage”. We are, thus, not persuaded to
hold that once married, the dependency factor altogether ceases. Proceeding on
such an assumption, in our humble view, would be a misadventure.
107. It is now time to consider the decisions of the high courts holding that exclusion
of ‘married daughters’ from the purview of compassionate appointment offends
the Constitution. Mr. Mitra and Mr. Mondal have placed reliance on the decisions
in Usha Singh (supra), Medha Prashant Parkhe (supra), Chitra Mali (Mondal)
(supra), Sou. Swara Sachin Kulkarni (supra) and Smt. Vimla Srivastava (supra),
amongst others.
108. The decision in Usha Singh (supra) is the first decision that has been cited on
behalf of Arpita and Kakali. Paragraph 10 of such decision has been quoted with
approval in Medha Prashant Parkhe (supra). The Division Bench of this Court in
Chitra Mali (Mondal) (supra) has also upheld the ratio of such decision, although
the same was not applied. In Sou. Swara Sachin Kulkarni (supra), the Division
Bench of the Bombay High Court addressed the problem viewing it from the same
angle without, however, referring to Usha Singh (supra).
109. The relevant paragraph from the decision in Usha Singh (supra) reads as follows:
“10. The rationale of the rules quoted hereinabove in 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? A married 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 bread winner 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? 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 any one 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 Savita 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’.”
Without hesitation, we concur with whatever has been expressed in the aforesaid
excerpt.
110. In the decision in Smt. Vimla Srivastava (supra), the rule under
consideration was similar to the clause in the notifications under consideration
before us. The Hon’ble the Chief Justice of the Allahabad High Court speaking for
the Division Bench, upon consideration of the decision in C.B. Muthamma
(supra) and a previous coordinate Bench decision of the same Court in Isha Tyagi
v. State of U.P. (Writ-C No. 41279 of 2014), proceeded to uphold the challenge for
the reasons assigned and held that “excluding daughters purely on the ground of
marriage would constitute an impermissible discrimination and be violative of
Articles 14 and 15 of the Constitution”. Their Lordships’ accordingly struck down
the word ‘unmarried’ in rule 2(c)(iii) of the relevant Rules. A perusal of paragraph
24 of the decision would reveal the agreement of the Division Bench with the view
expressed in Purnima Das (supra).
111. We are in complete agreement with the aforesaid line of decisions and are,
therefore, of the clear opinion that the relevant notifications issued under the
1999 Act or for that matter the SCHEME, in the manner it has been framed, do
not appear to be reasonable. The restriction on married daughters being eligible
to apply and to be considered for compassionate appointment is likely and has,
in fact, given rise to a legitimate grievance in the minds of married daughters,
who unfortunately are not looked after by their husbands, perforce have to take
shelter in their parental/maternal home, survive on the benevolence showered by
their fathers/mothers (Government employees) and owing to untimely demise of
the Government employees, are left high and dry along with other members of
the deceased’s family who have to depend on such married daughter to feed and
provide the basics to cover their body.
112. Our answer to the question formulated in paragraph 6 supra is that complete
exclusion of married daughters like Purnima, Arpita and Kakali from the purview
of compassionate appointment, meaning thereby that they are not covered by the
definition of ‘dependent’ and ineligible to even apply, is not constitutionally valid.
113. Consequently, the offending provision in the notification dated April 2, 2008
(governing the cases of Arpita and Kakali) and February 3, 2009 (governing the
case of Purnima) i.e. the adjective ‘unmarried’ before ‘daughter’, is struck down
as violative of the Constitution. It, however, goes without saying that after the
need for compassionate appointment is established in accordance with the laid
down formula (which in itself is quite stringent), a daughter who is married on
the date of death of the concerned Government employee while in service must
succeed in her claim of being entirely dependent on the earnings of her
father/mother (Government employee) on the date of his/her death and agree to
look after the other family members of the deceased, if the claim is to be
considered further.
114. The exception taken by Mr. Majumdar to the ultimate direction in Purnima Das
(supra) need not be dealt with since such direction is rendered redundant having
regard to the findings that we have recorded.
115. The judgment and order under appeal in FMA 1277 of 2016 is, thus, upheld to
the extent as indicated above.
116. The impugned decision of the WBAT dismissing Arpita’s original application, as
rightly argued by Mr. Mitra, cannot be sustained on another ground. Quite
strangely, the WBAT perceived the decision in Sunita Bhadooria (supra) as one
rendered by the Supreme Court, although it was a decision of a Division Bench of
the Allahabad High Court. Mistakenly, the WBAT was of the opinion that the
decisions of this Court to the contrary stood impliedly overruled and hence not
binding on it. The WBAT was clearly in error for not having applied its mind.
117. It is clear that the WBAT was once again in error while dealing with Kakali’s
original application. Although the application of Kakali had not been formally
rejected, a finding to that effect has been recorded.
118. The decisions of the WBAT under challenge in both the writ petitions, accordingly,
stand set aside.
119. The authority competent to appoint Purnima, Arpita and Kakali shall proceed to
consider their claims for compassionate appointment in the light of the
observations made above, more particularly paragraph 113, and dispose of such
claims in accordance with law within 8 (eight) weeks from date of receipt of a
copy of this judgment and order. In the event of any claim not succeeding, an
appropriate reasoned order shall be passed and communicated to the concerned
candidate. If, however, any claim succeeds, the concerned candidate shall be
given appointment without any delay but after complying with all the formalities.
120. FMA 1277 of 2016 stands dismissed together with the application for stay (C.A.N.
12495 of 2014), whereas W.P. 447 of 2013 and W.P. 78 of 2014 are allowed.
Parties are directed to bear their own costs.
Photocopy of this judgment and order, duly countersigned by the Assistant Court
Officer, shall be retained with the records of WPST 447 of 2013 and WPST 78 of
2014.
Urgent photostat certified copy of this judgment and order, if applied, may be
furnished to the applicant at an early date.
(Nishita Mhatre, ACJ)
(Tapabrata Chakraborty, J.) (Dipankar Datta, J.)
