The State Of West Bengal & Ors vs Purnima Das & Ors on 13 September, 2017

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.)

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