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Meenakshi Dubey vs Madhya Pradesh Poorva Kshetra … on 2 March, 2020

WA No.756/2019

(1)

HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR

Case No. W.A. No.756/2019
Parties Name Meenakshi Dubey
vs.
M.P. Poorva Kshetra Vidyut Vitran
Co. Ltd. and others.
Date of Judgment 02/03/2020
Bench Constituted Larger Bench:
Justice Sujoy Paul,
Justice J.P. Gupta
Justice (Smt.) Nandita Dubey
Judgment delivered by Justice Sujoy Paul
Whether approved for Yes
reporting
Name of counsels for Shri Anubhav Jain, Smt. Sudha
parties Gautam, Shri Anand Sharma and
Smt. Sonali Viswas, learned
counsel for the appellant.

Shri Shashank Shekhar, learned
Advocate General.

Shri Ankit Agrawal, learned
counsel for respondent-
Company.
Law laid down 1. Clause 2.2 of policy of
compassionate appointment of
State Government dated
29.09.2014 – The clause to the
extent it deprives a married
daughter from consideration for
compassionate appointment hits
Art. 14, 16 and 39(a) of the
Constitution. A woman citizen
cannot be excluded for any
appointment on compassionate
basis on the ground of sex alone.

2. The daughter even after
marriage remains part of the
WA No.756/2019

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family and she could not be treated
as not belonging to her father’s
family.
3. Compassionate Appointment-
The criteria should be
dependency rather than marriage.

4. Article 14 – Reasonable
classification – The married
daughter cannot be deprived from
the right of consideration for
compassionate appointment when
married son is entitled under the
scheme. Depriving married
daughter when deceased government
servant has a son also amounts to
dividing a homogeneous class and
creating a class within the class
which violates Art. 14 of the
Constitution.

5. Compassionate appointment is
not a right and the provision is
made as an exception to general
rule but having recognized such
right of consideration of married
daughter in clause 2.4, State
cannot deprive the married
daughter from consideration when
she has a brother provided she
undertakes to take care and
maintain the living parent and
other family members who were
dependent on the deceased
employee at the time of his/her
death.
Significant paragraph 9, 13, 14 20
numbers

JUDGMENT

02.03.2020

As per: Sujoy Paul, J.

This Larger Bench is called upon to decide the following
WA No.756/2019

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issue:

“Whether in the matter of compassionate appointment
covered by Policy framed by the State Government
wherein, certain class of dependent which includes
unmarried daughter a widowed daughter and a divorced
daughter and in case of a deceased Govt. servant who only
has daughter, such married daughter who was wholly
dependent on Govt. servant subject to she giving her
undertaking of bearing responsibility of other dependents
of the deceased Govt. servant, Clause 2.2 and 2.4 can be
said to be violative of Article 14, 15, 25 and 51A (e) of the
Constitution.”

2. It is profitable to note the background of the reference.
W.P. No.9631/2017 (Meenakshi Dubey vs. Madhya Pradesh
Poorv Kshetra Vidyut Vitran Company Limited and others)
was filed by the appellant/petitioner, the married daughter of
deceased employee claiming compassionate appointment. The
writ court by order dated 08.01.2019 dismissed the petition by
holding that married woman does not deserve consideration for
compassionate appointment as per the policy of the Company.
Aggrieved, she filed WA No.756/2019 which was decided on
08.01.2020 Pertinently, the petitioner therein did not challenge
the constitutionality of any clause of the policy of
compassionate appointment framed by the employer namely;
Madhya Pradesh Poorva Kshetra Vidyut Vitran Company
Limited (hereinafter called as ‘Electricity Company’). It
appears that during the course of hearing of WA No.756/2019, a
Division Bench judgment of Indore Bench in the case of Smt.
Meenakshi vs. State of M.P. and others, W.P. No.3769/2017
decided on 09.10.2018, was cited by the appellant. In this WP
filed before Indore Bench, vires of Clause 2.2, 2.3 and 2.4 of the
policy of the State Government were called in question. The
Indore Bench opined that Clause 2.2 and 2.4 to the extent right
of married daughter specially when the deceased government
WA No.756/2019

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servant was having male children also, has been curtailed, is
certainly unconstitutional and violative of Article 14, 15, 25 and
51A (e) of the Constitution of India. Net result is that the policy
to the extent it debars married woman from consideration for
compassionate appointment is quashed and the respondent/State
is directed to consider the case of the petitioner on merits.

3. The Division Bench in WA No.756/2019 recorded its
disagreement with the decision of Indore Bench in Smt.
Meenakshi(Supra) in holding Clause 2.2 and 2.4 of the policy
as ultra vires. The Bench reproduced the relevant policy which
was applicable to the Electricity Company. It was observed that
the Indore Bench in Smt. Meenakshi(Supra) treated the
appointment on compassionate ground as a right whereas such
appointments are given solely on humanitarian grounds with the
sole object to provide immediate relief to employee’s family to
tide over the sudden financial crises and such claim cannot be
raised as a matter of right. Appointment based solely on descent
is inimical to our constitutional scheme, and ordinarily public
employment must be given strictly on the basis of open
invitation of applications and comparative merit, in consonance
with Article 14 and 16 of the Constitution of India. No other
mode of appointment is permissible. The concept of
compassionate appointment is recognised as an exception to the
general rule, carved out in the interest of justice, in certain
exigencies, by way of a policy of an employer, which partakes
the character of the Service Rules. In this backdrop, it was
observed that the policy or scheme, as the case may be, is
binding both on the employer and the employee. Being an
exception, the scheme has to be strictly construed and confined
only to the purpose it seeks to achieve. While observing so, the
WA No.756/2019

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Division Bench thought it proper to refer the issue for
determination before the Larger Bench.

4. The Division Bench did not keep WA No.756/2019
pending and disposed it of by holding that appellant being a
married daughter not shown to be dependent on her father, there
exists no illegality in the impugned order which calls for any
interference.

5. The aforesaid factual backdrop makes it clear that no
vires of any provision of the policy/scheme of State Government
or Electricity Company was subject matter of challenge in WP
No. 9631/2017 or in WA No.756/2019. The policy of
compassionate appointment of State Government and Electricity
Company are indisputably different. Be that as it may, we are
called upon to answer the reference and; hence, we deem it
proper to deal with the issue referred for adjudication.

6. During the course of hearing, learned counsel for the
parties fairly submitted that at present, policy of State
Government dated 29.09.2014 is applicable. Clause 2.2 to 2.4
read as under:

“2.2 e`rd ‘kkldh; lsod ds vkfJr ifr/ifRu }kjk ;ksX;rk
u j[kus vFkok Lo;a vuqdaik fu;qfDr u ysuk pkgs rks mlds }
kjk ukekafdr iq ;k vfookfgr iqhA

2.3 ,slh fo/kok vFkok rykd’kqnk iqh] tks fnoaxr ‘kkldh;
lsod dh e`R;q ds le; ml ij iw.kZr% vkfJr gksdj mlds
lkFk jg jgh gks vFkok mijksDr ik lnL; u gksus dh fLFkfr
esa fo/kok iqo/kq tks ‘kkldh; lsod dh e`R;q ds le; ml ij
iw.kZr% vkfJr gksdj muds lkFk jg jgh gkAs

2.4 fnoaxr ‘kkldh; lsod dh larku flQZ [email protected];ka gks
vkSj og fookfgr gks rks fnoaxr ‘kkldh; lsod ds vkfJr
[email protected] }kjk ukekafdr fookfgr iqhA
WA No.756/2019

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;g Li”V fd;k tkrk gS fd e`rd ‘kkldh; lsod ds vkfJr
[email protected] thfor gksus ij gh fookfgr iqh dks vuqdaik
fu;qfDr dh irk gksxh A ¼,sls vuqdaik fu;qfDr ikus okyh iqh
dks ‘kkldh; lsod ds vkfJr [email protected] iRuh ds ikyu iks”k.k
dh ftEesnkjh dk ‘kiFk i nsuk gks½””

(Emphasis supplied)

The learned counsel for the parties urged that there is no
illegality or unconstitutionality in Clause 2.4 of the policy. At
best, the clarification/condition appended to Clause 2.4 which is
confined to a married daughter should be made applicable to son
as well. Confining the duty for the daughter alone to take care of
living spouse of deceased employee is discriminatory and
arbitrary. We will deal with this point at appropriate stage.

7. Shri Anubhav Jain, learned counsel for the appellant
contended that clause 2.2 is arbitrary, unjust, unreasonable and
discriminatory in nature inasmuch as it excludes the married
daughter from right of consideration for compassionate
appointment. Shri Jain has taken pains to rely on the judgments
of various High Courts in support of his aforesaid contention.

8. Shri Shashank Shekhar, learned Advocate General
assisted by Shri Amit Singh, Advocate and Shri Ankit Agrawal,
learned counsel for Electricity Company, in all fairness, urged
that in our constitutional scheme, any provision which hits
equality clause needs to be interfered with. During the course of
hearing, learned Advocate General prayed for deferring the
hearing of this matter for a later date by contending that in the
meantime, the Government will consider the validity of Clause
2.2 and 2.4 of the policy and will make necessary corrections.
The validity of corrected policy can be examined by this Bench.

WA No.756/2019

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Although we appreciate the fair stand taken by learned Advocate
General, we are not inclined to defer the hearing of this matter
because (i) this is not a regular matter; indeed, it is a reference
made to Larger Bench hence, we are under an obligation to
answer the reference. (ii) if this Bench interferes with the
clauses of the policy, it will still be open to State Government to
redraft/ reframe the said Clauses or issue a fresh policy; (iii) the
Indore Bench decided WP No.3769/2017 on 09.10.2018 and
declared certain clauses of policy as unconstitutional. Sufficient
time was available to rectify the said clauses or introduce a new
policy.

9. The policy of compassionate appointment of different
State Governments became subject matter of challenge before
the High Courts and similar clauses which excludes the right of
consideration of a married daughter were taken note of and
interfered with by the High Courts on the anvil of Article 14 and
15 of the Constitution. It is profitable to refer to certain
judgments. This Court in 2019 (2) MPLJ 707 (Bhawna
Chourasia vs. State of M.P.) held as under:

“15. This is a matter of common knowledge that in present
days there are sizable number of families having single
child. In many families, there are no male child. The
daughter takes care of parents even after her marriage.
The parents rely on their daughters heavily. Cases are not
unknown where sons have failed to discharge their
obligation of taking care of parents and it is taken care of
and obligation is sincerely discharged by married
daughters. Thus, it will be travesty of justice if married
daughters are deprived from right of consideration for
compassionate appointment.”

(Emphasis supplied)

The Chattisgarh High Court in WP(S) No.296/2014 (Sarojni
Bhoi vs. State of Chattisgarh and others) opined that criteria to
WA No.756/2019

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grant compassionate appointment should be dependency rather
than marriage. A daughter even after marriage remains daughter
of her father and she could not be treated as not belonging to her
father’s family. Institution of marriage was basic civil right of
man and woman and marriage by itself was not a
disqualification. Resultantly, the impugned policy of
Government prohibiting consideration of married daughter from
compassionate appointment was held to be violative of Article
14 of the Constitution. The Chattisgarh High Court considered
its previous Division Bench judgment in the case of Bailadila
Berozgar Sangh vs. National Mineral Corporation Ltd.

wherein it was held that:

“….It is not disputed that the Corporation is an
instrumentality of the State and comes within the definition
of the State under Article 12 of the Constitution and that
the equality provisions in Articles 14 and 16 of the
Constitution apply to employment under the Corporation.
Therefore, a woman citizen cannot be made ineligible for
any employment under the Corporation on the ground of
sex only but could be excluded from a particular
employment under the Corporation if there are other
compelling grounds for doing so.”

(Emphasis supplied)

10. Similarly, the question “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 ?” came up for consideration
before a Larger Bench of High Court of Calcutta in State of
W.B. and others vs. Purnima Das and others (2018 Lab IC
1522). The relevant Clause 2(2) of the policy which was subject
matter of examination was :

WA No.756/2019

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“2(2) 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 dependent on the government employee.”

The ancillary question cropped up before the Larger Bench was
whether the classification created by Government by depriving
the married daughter from right of consideration for
compassionate appointment is a valid classification. Deepankar
Datta, J’ speaking for the Bench opined as under:

“…..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.”

(Emphasis supplied)

In no uncertain terms, it was held that it is the dependency factor
that would merit consideration and not the marital status of the
applicant. The Calcutta High Court considered its previous
judgment in the case of Smt. Usha Singh vs. State of W.B.,
2003 (2) WBLR (Cal) 94 wherein it was opined as under:

“…… 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
WA No.756/2019

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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’.”

(Emphasis supplied)

Consequently, the Larger Bench answered the question as under:

“111. 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.

112. 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.”

(Emphasis supplied)

The judgment of Purnima Das etc.(Supra) was unsuccessfully
challenged by the State of West Bengal before the Supreme
WA No.756/2019

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Court in SLP(C) No.17638-17639 of 2018 which were
dismissed on 23.07.2019. The similar question came up for
consideration before a Larger Bench of High Court of
Uttarakhand in the case of Udham Singh Nagar District
Cooperative Bank Ltd. And another vs. Anjula Singh and
others, AIR 2019 Utr 69. The relevant question posed before the
Larger Bench reads as under:

“(ii) Whether non-inclusion of a “married daughter” in
the definition of “family”, under Rule 2(c) of the 1974
Rules, and in the note below Regulation 104 of the 1975
Regulations, is discriminatory, and is in violation of
Articles 14, 15 and 16 in Part III of the Constitution of
India ?”

(Emphasis supplied)

The answer reads thus:

“(ii) Question No.2 should also be answered in the
affirmative. Non-inclusion of “a married daughter” in the
definition of a “family”, under Rule 2(c) of the 1974 Rules
and the note below Regulation 104 of the 1975 Regulations,
thereby denying her the opportunity of being considered for
compassionate appointment, even though she was
dependent on the Government servant at the time of his
death, is discriminatory and is in violation of Articles 14,
15 and 16 in Part III of the Constitution of India.”

11. It is noteworthy that similar view was taken by Karnataka
High Court in ILR 1992 Kar 3416 (R. Jayamma V.Karnataka
Electricity Board). In the said case, it was held as under:

“10. This discrimination, in refusing compassionate
appointment on the only ground that the woman is married
is violative of Constitutional Guarantees. It is out of
keeping with the trend of times when men and women
compete on equal terms in all areas. The Electricity Board
would do well to revise its guidelines and remove such
anachronisms.”

The Madras High Court in 2015 (3) LW 756 (R. Govindammal
V. The Principal Secretary, Social Welfare and Nutritious
WA No.756/2019

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Meal Programme Department others) opined thus:

“14. Therefore, I am of the view that G.O.Ms. No. 560
dated 3-8-1977 depriving compassionate appointment to
married daughters, while married sons are provided
compassionate appointment, is unconstitutional. In fact,
the State can make law providing certain benefits
exclusively for women and children as per Article 15(3) of
the Constitution. But the State cannot discriminate women
in the matter of compassionate appointment, on the ground
of marriage.”

In R. Govindammal(Supra), the Madras High Court took note of
a judgment reported in 2013 (8) MLJ 684 (Krishnaveni vs.
Kadamparai Electricity Generation Block, Coimbator District)
in which it was ruled that if marriage is not a bar in the case of
son, the same yardstick shall be applied in the case of a daughter
also.

12. The Bombay High Court in Sou. Swara Sachin Kulkrni
v. Superintending Engineer, Pune Irrigation Project Circle,
2013 SCC OnLine Bom 1549 opined as under:

“3….. Both are married. The wife of the deceased and the
mother of the daughters has nobody else to look to for
support, financially and otherwise in her old age. In such
circumstances, the stand of the State that married
daughter will not be eligible or cannot be considered for
compassionate appointment violates the mandate of
Article 14, 15 and 16 of the Constitution of India. No
discrimination can be made in public employment on
gender basis. If the object sought can be achieved is
assisting the family in financial crisis by giving
employment to one of the dependents, then, undisputedly
in this case the daughter was dependent on the deceased
and his income till her marriage.”

It was further held as under:

“3….. We do not see any rationale for this classification
and discrimination being made in matters of compassionate
appointment and particularly when the employment is
sought under the State.”

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13. In a recent judgment by High Court of Tripura in
Debashri Chakraborty vs. State of Tripura and others, 2020
(1) GLT 198, the court has taken note of various judgments of
the High Courts including the judgment of Allahabad High
Court in Vimla Shrivastava and others vs. State of UP and
others reported in MANU/UP/2275/2015 and judgment of
Karnataka High Court in Manjula Vs. State of Karnataka, 2005
(104) FLR 271. After taking note of series of judgments
authored by different High Courts, the court answered the
question as under:

“ii. Question No.2 should also be answered in the
affirmative. Non- inclusion of “a married daughter” in the
definition of a “family”, under Rule 2(c) of the 1974 Rules
and the note below Regulation 104 of the 1975
Regulations, thereby denying her the opportunity of being
considered for compassionate appointment, even though
she was dependent on the Government servant at the time
of his death, is discriminatory and is in violation of
Articles 14, 15 and 16 in Part III of the Constitution of
India.

iii. We, however, read down the definition of “family”, in
Rule 2(c) of the 1974 Rules and the note below Regulation
104 of the 1975 Regulations, to save it from being held
unconstitutional. As a result a “married daughter” shall
also be held to fall within the inclusive definition of the
“family” of the deceased Government servant, for the
purpose of being provided compassionate appointment
under the 1974 Rules and the 1975 Regulations.”

(Emphasis supplied)

The common string in the aforesaid judgments of various High
Courts is clear like a cloudless sky that the action/clauses of the
policy which deprives married daughter from right of
consideration for compassionate appointment runs contrary to
Articles 14, 15, 16 and 39(a) of the Constitution. We concur
with the above view taken by various High Courts.

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14. The Constitution Bench of Supreme Court in Budhan
Choudhry vs. State of Bihar, (1955) 1 SCR 1045 made it clear
that to pass a test of permissible classification, two conditions
must be fulfilled, namely, (i) that the classification must be
founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out
of the group and (ii) that differentia must have a rational relation
to the object sought to be achieved by the statute in question. In
view of this decision, Article 14 condemns discrimination not
only by a substantive law but also by a law of procedure. As
noticed, the various High Courts held that the classification
made by impugned clause amounts to an artificial classification
which divides a homogenous class and creates a class within the
class.

15. The Apex Court in Dr. (Mrs.) Vijaya Manohar Arbat v.
Kashirao Rajaram Sawai, (1987) 2 SCC 278 opined that a
daughter after her marriage does not cease to be a daughter of
her father or mother and observed as under:

“12. We are unable to accept the contention of the
appellant that a married daughter has no obligation to
maintain her parents even if they are unable to maintain
themselves. It has been rightly pointed out by the High
Court that a daughter after her marriage does not cease to
be a daughter of the father or mother. It has been earlier
noticed that it is the moral obligation of the children to
maintain their parents. In case the contention of the
appellant that the daughter has no liability whatsoever to
maintain her parents is accepted, parents having no son but
only daughters and unable to maintain themselves, would
go destitute, if the daughters even though they have
sufficient means refuse to maintain their parents.

13. After giving our best consideration to the question, we
are of the view that Section 125(1)(d) has imposed a
liability on both the son and the daughter to maintain their
father or mother who is unable to maintain himself or
herself.”

(Emphasis supplied)
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16. It is noteworthy that in the case of Vijaya
Manohar(Supra), the Apex Court was talking about ‘moral
obligation’ of children to maintain their parents. The Parliament
in its wisdom introduced The Maintenance and Welfare of
Parents and Senior Citizens Act, 2007. This Act places equal
duty on both, sons and daughters to take care and maintain the
parents. In view of this Act, the obligation to take care of
parents assumes more importance and it is not only a “moral
duty”, it became a “statutory duty” of children as well. This
aspect was considered in Krishnaveni’s case (supra) wherein it
was held as under:

“28. The case on hand is a classic case, wherein, the
deceased Government servant has no male issue.
Nowadays, it is a common thing that a family have a single
child; either male or female. Thus, if a Government servant
has only daughter, as in this case, the widow of the
Government servant cannot be stated that her married
daughter could not be provided compassionate
appointment, particularly, when she has to solely rely on
her daughter. As stated above, Maintenance and Welfare
of Parents and Senior Citizens Act, also now places equal
responsibility on both the son and daughter to take care of
their parents.”

17. We are not oblivious of the settled legal position that
compassionate appointment is an exception to general rule. As
per the policy of compassionate appointment, State has already
decided to consider claims of the married daughters (Clause 2.4)
for compassionate appointment but such consideration was
confined to such daughters who have no brothers. After the
death of government servant, it is open to the spouse to decide
and opt whether his/her son or daughter is best suited for
compassionate appointment and take responsibilities towards
family which were being discharged by the deceased
government servant earlier.

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The offending clause which restricts such consideration
only for such married daughter is subject matter of consideration
and examination. The Constitution Bench of Supreme Court in
Budhan Choudhry(Supra) held that substantive law, procedural
law or even an action can be interfered with if it does not pass
the “litmus test” laid down in the said case. Hence, in a case of
this nature, adjudication is not required regarding creation of
right of married woman, indeed, judicial review is focused
against curtailment of claim of such married woman when
deceased government servant died leaving behind son/s.

18. The matter may be viewed from another angle. Human
rights and fundamental freedom have been reiterated by the
Universal Declaration of Human Rights. Democracy,
development and respect for human rights and fundamental
freedoms are interdependent and have mutual reinforcement. All
forms of discrimination on grounds of gender is violative of
fundamental freedoms and human rights. Vienna Convention on
the Elimination of all forms of Discrimination Against Women
(for short ‘CEDAW’) was ratified by the UNO on 18-12-1979.
The Government of India who was an active participant to
CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-
8-1993 with reservation on Articles 5(e), 16(1), 16(2) and 29
thereof. The Preamble of CEDAW reiterates that discrimination
against women violates the principles of equality of rights and
respect for human dignity; is an obstacle to the participation on
equal terms with men in the political, social, economic and
cultural life of their country; hampers the growth of the
personality from society and family and makes it more difficult
for the full development of potentialities of women in the
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service of their countries and of humanity. Article 1 defines
discrimination against women to mean – “any distinction,
exclusion or restriction made on the basis of sex which has
the effect or purpose on impairing or nullifying the
recognized enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women,
all human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field”. Article 2(b)
makes it obligatory for the State parties while condemning
discrimination against women in all its forms, to pursue, by
appropriate means, without delay, elimination of discrimination
against women by adopting “appropriate legislative and other
measures including sanctions where appropriate, prohibiting all
discriminations against women” to take all appropriate measures
including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute
discrimination against women. Clause (C) enjoins to ensure
legal protection of the rights of women on equal basis with men
through constituted national tribunals and other public
institutions against any act of discrimination to provide effective
protection to women. Article 3 enjoins State parties that it shall
take, in all fields, in particular, in the political, social,
economicand cultural fields, all appropriate measures including
legislation to ensure full development and advancement of
women for the purpose of guaranteeing them the exercise and
enjoyment of human rights and fundamental freedoms on the
basis of equality with men. Article 13 states that – “the State
parties shall take all appropriate measures to eliminate
discrimination against women in other areas of economic and
social life in order to ensure, on a basis of equality of men and
women”. Parliament has enacted the Protection of Human
WA No.756/2019

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Rights Act, 1993. Section 2(d) defines human rights to mean
“the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the
International Covenants and enforceable by courts in India”.
Thereby the principles embodied in CEDAW and the
concomitant Right to Development became integral parts of the
Indian Constitution and the Human Rights Act and became
enforceable. Section 12 of Protection of Human Rights Act
charges the Commission with duty for proper implementation as
well as prevention of violation of the human rights and
fundamental freedoms. Article 5(a) of CEDAW on which the
Government of India expressed reservation does not stand in its
way and in fact Article 2(f) denudes its effect and enjoins to
implement Article 2(f) read with its obligation undertaken under
Articles 3, 14 and 15 of the Convention vis-à-vis Articles 1, 3, 6
and 8 of the Declaration of Right to Development. Though the
directive principles and fundamental rights provide the matrix
for development of human personality and elimination of
discrimination, these conventions add urgency and need for
immediate implementation. It is, therefore, imperative for the
State to eliminate obstacles, prohibit all gender-based
discriminations as mandated by Articles 14 and 15 of the
Constitution of India. By operation of Article 2(f) and other
related articles of CEDAW, the State should by appropriate
measures modify law/policy and abolish gender-based
discrimination in the existing laws, regulations, customs and
practices which constitute discrimination against women.

19. In a recent judgment reported in 2020 SCC OnLine SC
200 (Secretary, Ministry of Defence vs. Babita Puniya and
others), the Apex Court opined that –

WA No.756/2019

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“67. The policy decision of the Union Government is a
recognition of the right of women officers to equality of
opportunity. One facet of that right is the principle of
nondiscrimination on the ground of sex which is embodied
in Article 15(1) of the Constitution. The second facet of the
right is equality of opportunity for all citizens in matters of
public employment under Article 16(1).”

This recent judgment in Babita Puniya(Supra) is a very
important step to ensure “Gender Justice”. In view of catena of
judgments referred hereinabove, it can be safely concluded that
Clause 2.2 to the extent it deprives married woman from right of
consideration for compassionate appointment violates equality
clause and cannot be countenanced. By introducing Clause 2.4,
the Government partially recognised the right of consideration
of married daughter but such consideration was confined to such
daughters who have no brothers. Clause 2.2, as noticed, gives
option to the living spouse of deceased government servant to
nominate son or unmarried daughter. There is no condition
imposed while considering a son relating to marital status.
Adjective/condition of “unmarried” is affixed for the daughter.
This condition is without there being any justification and;
therefore, arbitrary and discriminatory in nature.

21. Looking from any angle, it is crystal clear that clause 2.2
which deprives the married daughter from right of consideration
cannot sustain judicial scrutiny. Thus, for different reasons, we
are inclined to hold that Indore Bench has rightly interfered with
Clause 2.2 of the said policy in the case of Smt.
Meenakshi(Supra).

22. In nutshell, broadly, we are in agreement with the
conclusion drawn by Indore Bench in Smt. Meenakshi(Supra)
and deem it proper to answer the reference as under:

WA No.756/2019

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“Clause 2.2 of the policy dated 29.09.2014 is
violative of Articles 14, 15, 16 and 39(a) of the
Constitution of India to the extent it deprives the
married daughter from right of consideration for
compassionate appointment. We find no reason to
declare Clause 2.4 of the policy as ultra vires. To
this extent, we overrule the judgment of Indore
Bench in the case of Meenakshi(Supra)”

23. The issue is answered accordingly.

(Sujoy Paul ) (J.P. Gupta) (Smt. Nandita Dubey)
Judge Judge Judge

YS/
Digitally signed by MOHAMMED
MOHSIN QURESHI
Date: 2020.03.03 10:34:38 +05’30’

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