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Nisha Lohani vs State Of Uttarakhand And Others on 24 April, 2017

RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Civil Writ Petition No.691 of 2016
Nisha Lohani ……. Petitioner
Versus
State of Uttarakhand and others …..Respondents

Ms. Mamta Joshi, Advocate for the petitioner.
Mr. B.P.S. Mer, Brief Holder for the State.

Reserved on:30.03.2017
Delivered on:24.04.2017
Hon’ble Rajiv Sharma , J.

1. The father of the petitioner died in harness on
26.06.2013. He was working as peon in Girls
Government Higher Secondary School, Tallital, Nainital.
The mother of the petitioner submitted a representation
on 28.07.2014 before the competent authority to
consider the name of the petitioner for appointment on
compassionate ground but no decision had been taken
by the respondents. Petitioner approached this Court by
way of filing of WPSS No.2331 of 2015 which was
disposed of with a direction to the respondents to take a
decision on the representation as expeditiously as
possible. The representation was rejected vide order
dated 15.01.2016 primarily on the ground that ‘married
daughter’ does not fall within the ambit of “Family” as per
the Rule 2(c) of the U.P. Recruitment of Dependants of
Government Servants Dying in Harness Rules, 1974
(hereinafter referred to as “The Dying in Harness
Rules,1974”) adopted by State of Uttarakhand.

2. Ms. Mamta Joshi, Advocate appearing on
behalf of the petitioner has vehemently argued that the
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Rule 2(c) of the Dying and Harness Rules is arbitrary and
unreasonable, since, it excludes the married daughter for
getting compassionate appointment after the death of her
father. The Dying and Harness Rules is also violative of
Articles 14, 15 16 of the Constitution of India, since
the married son is not excluded but only married
daughter is excluded from getting the job on the
compassionate ground.

3. Learned State counsel appearing for
respondents has supported the Dying and Harness
Rules.

4. I have heard learned counsel for the parties
and perused the documents available on record carefully.

5. Petitioner lost her father on 26.03.2013. It is
not in dispute that the case of the petitioner was rejected
on 15.01.2016 on the ground that married daughter is
not included in the definition of the “family” for the
purpose of appointment on compassionate ground.

6. There is no intelligible differentia so as to
distinguish the married daughter and married son for the
purpose of appointment on compassionate ground under
Rule 2(c) of the Dying in Harness Rules, 1974 which
provides for the appointment of a person after death of
the bread earner.

7. Their Lordships of Hon’ble Supreme Court in
1987 (2) SCC 278, in the case of “Dr. (Mrs.) Vijaya
Manohar Arbat Vs. Kashirao Rajaram Sawai and another”

3

have held that the parents will be entitled to claim
maintenance against their daughter, whether married or
unmarried under Section 125 Cr.P.C. Their Lordships of
Hon’ble Supreme Court have held as under:-

“5. Sub-section (1) of Section 125 confers
power on the Magistrate of the First Class to
order a person to make a monthly allowance
for the maintenance of some of his close
relations like wife, children, father and
mother under certain circumstances. It has
been observed by this Court in Bhagwan
Dutt v. Kamla Devi1 that the object of Section
125 CrPC is to provide a summaryremedy to
save dependants from destitution and
vagrancy and thus to serve a social purpose.

6. There can be no doubt that it is the
moral obligation of a son or a daughter to
maintain his or her parents. It is not
desirable that even though a son or a
daughter has sufficient means, his or her
parents would starve. Apart from any law,
the Indian society casts a duty on the
children of a person to maintain their parents
if they are not in a position to maintain
themselves. It is also their duty to look after
their parents when they become old and
infirm.

8. We are unable to accept this contention.
It is true that clause (d) has used the
expression “his father or mother” but, in our
opinion, the use of the word “his” does not
exclude the parents claiming maintenance
from their daughter. Section 2(y) CrPC
provides that words and expressions used
herein and not defined but defined in the
Indian Penal Code have the meanings
respectively assigned to them in that Code.
Section 8 of the Indian Penal Code lays down
that the pronoun “he” and its derivatives are
used for any person whether male or female.

Thus, in view of Section 8 IPC read with
Section 2(y) CrPC, the pronoun “his” in clause

(d) of Section 125(1) CrPC also indicates a
female. Section 13(1) of the General Clauses
Act lays down that in all Central Acts and
4

Regulations, unless there is anything
repugnant in the subject or context, words
importing the masculine gender shall be
taken to include females. Therefore, the
pronoun “his” as used in clause (d) of Section
125(1) CrPC includes both a male and a
female. In other words, the parents will be
entitled to claim maintenance against their
daughter provided, however, the other
conditions as mentioned in the section are
fulfilled. Before ordering maintenance in
favour of a father or a mother against their
married daughter, the court must be satisfied
that the daughter has sufficient means of her
own independently of the means or income of
her husband, and that the father or the
mother, as the case may be, is unable to
maintain himself or herself.

10. The learned Judge of the Punjab
Haryana High Court did not refer in his
judgment to the sentence which has been
underlined. It is true that in the first part of
the report the word “son” has been used, but
in the latter part which has been underlined
the recommendation is that if there are two
or more children the parents may seek the
remedy against any one or more of them. If
the recommendation of the Joint Committee
was that the liability to maintain the parents,
unable to maintain themselves, would be on
the son only, in that case, in the latter portion
of the report the Joint Committee would not
have used the word “children” which
admittedly includes sons and daughters. In
our opinion, as we read the report of the
Joint Committee, it did not place the burden
of maintaining the parents only on the son,
but recommended that the liability to
maintain the parents should be of the sons
and the daughters as well. We have referred
to the report of the Joint Committee inasmuch
as the same has been relied upon in Raj
Kumari case2 by the Punjab Haryana High
Court and also on behalf of the appellant in
the instant case. When the statute provides
that the pronoun “his” not only denotes a
male but also a female, we do not think it
necessary to refer to the report of the Joint
5

Committee for the interpretation of clause (d)
of Section 125(1) CrPC. The father or mother,
unable to maintain himself or herself, can
claim maintenance from their son or
daughter. The expression “his father or
mother” is not confined only to the father or
mother of the son but also to the father or
mother of the daughter. In other words, the
expression “his father or mother” should also
be construed as “her father or mother.

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. Section 488 of the old Criminal
Procedure Code did not contain a provision
like clause (d) Section 125(1). The legislature
in enacting Criminal Procedure Code, 1973
thought it wise to provide for the
maintenance of the parents of a person when
such parents are unable to maintain
themselves. The purpose of such enactment
is to enforce social obligation and we do not
think why the daughter should be excluded
from such obligation to maintain their (sic
her) parents.”

8. Their Lordships of Hon’ble Supreme Court in
(1996) 2 SCC 380, in the case of “Savita Samvedi (MS)
and another Vs. Union of India and others” have held that
provision in Railway Board Circular dated 27.12.1982
restricting the eligibility of married daughter, of retiring
official, only to cases where such official has no son or
the daughter is the only person prepared to maintain the
parents and the sons are not in a position to do so held,
suffers from gender discrimination. Their Lordships of
Hon’ble Supreme Court have held as under:-

“7. The retiring official’s expectations in old
age for care and attention and its measure from
one of his children cannot be faulted, or his
6

hopes dampened, by limiting his choice. That
would be unfair and unreasonable. If he has
only one married daughter, who is a railway
employee, and none of his other children are,
then his choice is and has to be limited to that
railway employee married daughter. He should
be in an unfettered position to nominate that
daughter for regularisation of railway
accommodation. It is only in the case of more
than one children in railway service that he
may have to exercise a choice and we see no
reason why the choice be not left with the
retiring official’s judgment on the point and be
not respected by the Railway authorities
irrespective of the gender of the child. There is
no occasion for the Railways to be regulating or
bludgeoning the choice in favour of the son
when existing and able to maintain his parents.

The Railway Ministry’s Circular in that regard
appears thus to us to be wholly unfair, gender-
biased and unreasonable, liable to be struck
down under Article 14 of the Constitution. The
eligibility of a married daughter must be placed
on a par with an unmarried daughter (for she
must have been once in that state), so as to
claim the benefit of the earlier part of the
Circular, referred to in its first paragraph,
above-quoted.

9. It was also pointed out before us that the
Central Administrative Tribunal, Bombay Bench
in one of its decisions in OA No. 314 of 1990
decided on 12-2-1992 (Annexure P-8) relying
7

upon its own decision in Ambika R. Nair v.
Union of India1 in which the earlier Circular of
the Railway Board dated 27-12-1982 had been
questioned, held the same to be
unconstitutional per se as it suffered from the
twin vices of gender discrimination inter se
among women on account of marriage. We have
also come to the same view that the instant
case is of gender discrimination and therefore
should be and is hereby brought in accord with
Article 14 of the Constitution. The Circular shall
be taken to have been read down and deemed
to have been read in this manner from its
initiation in favour of the married daughter as
one of the eligibles, subject, amongst others, to
the twin conditions that she is (i) a railway
employee; and (ii) the retiring official has
exercised the choice in her favour for
regularisation. It is so ordered.

9. Their Lordships of Hon’ble Supreme Court in
(2015) 1 SCC 192, in the case of “Charu Khurana and
others Vs. Union of India and others” have held that equal
opportunity for women is essential to attainment of
equality. Their Lordships of Hon’ble Supreme Court have
held as under:-

“37. Having referred to the aforesaid
provisions of the Constitution, and taking note
of the submissions, we may presently refer to
Articles 14, 19(1)(g) and 21 of the Constitution
of India. Article 14 provides that the State shall
not deny to any person equality before the law,
8

or the equal protection of laws within the
territory of India. Article 19(1)(g) provides that
all citizens have the right to practise any
profession or to carry on any occupation, trade
or business. Needless to emphasise that the
said right is subject to reasonable restrictions to
be imposed, as permissible under Article 19(6)
of the Constitution. Article 21 deals with the
concept of life, which has been extended to a
great extent by this Court.

41. The aforesaid pronouncement clearly
spells out that there cannot be any
discrimination solely on the ground of gender. It
is apt to note here that reservation of seats for
women in panchayats and municipalities have
been provided under Articles 243(d) and 243(t)
of the Constitution of India. The purpose of the
constitutional amendment is that the women in
India are required to participate more in a
democratic set-up especially at the grass root
level. This is an affirmative step in the realm of
women empowerment. The 73rd and 74th
Amendments of the Constitution which deal
with the reservation of women has the avowed
purpose, that is, the women should become
parties in the decision-making process in a
democracy that is governed by the rule of law.
Their active participation in the decision-making
process has been accentuated upon and the
secondary role which was historically given to
women has been sought to be metamorphosed
to the primary one. The sustenance of gender
9

justice is the cultivated achievement of intrinsic
human rights. Equality cannot be achieved
unless there are equal opportunities and if a
woman is debarred at the threshold to enter
into the sphere of profession for which she is
eligible and qualified, it is well-nigh impossible
to conceive of equality. It also clips her capacity
to earn her livelihood which affects her
individual dignity”.

10. The Division Bench of Hon’ble Allahabad High
Court in Writ C No.60881 of 2015 and two connected
petitions, decided on 04.12.2015 has held as under :-

“In conclusion, we hold that the exclusion
of married daughters from the ambit of the
expression “family” in Rules 2(c) of the Dying-in-
Harness Rules in illegal and unconstitutional,
being violative of Articles 14 and 15 of the
Constitution.

We, accordingly, strike down the word
‘unmarried’ in Rule 2(c)(iii) of the Dying-in-
Harness Rules.

In consequence, we direct the claim of the
petitioners for compassionate appointment shall
be reconsidered. We clarify that the competent
authority would be at liberty to consider the
claim for compassionate appointment on the
basis of all the relevant facts and circumstances
and the petitioners shall not be excluded from
consideration only on the ground of their marital
status.”

10

11. Learned Single Judge of Hon’ble High Court of
Madras in 2014 Law Suit (Mad) 2421 in the case of “P R.
Renuka Vs. Director of Animal Husbandary”, decided on
27.10.2014 has held as under :-

“6. The impugned order dated 16.09.2002
is just representing the aforesaid content of the
Government letter. The only reason for refusal
of compassionate appointment to the petitioner
is that she was not a divorcee at the time of
when her father died. No other reason is given
for denying compassionate appointment.

7. It is submitted by the learned Additional
Government Pleader that once a daughter is
married, she is ineligible for compassionate
appointment and only unmarried daughter and
a daughter, who is a divorcee at the time of
application of compassionate appointment, is
eligible for such appointment.

8. It is not disputed by the learned
Additional Government Pleader that a married
son is not disqualified for compassionate
appointment but a married daughter is
disqualified for compassionate appointment.

11. This Court in W.P. No.22171 of 2013
dated 13.08.2013, “Jayalakshmi v. Tamil Nadu
Generation and Distribution Corporation Ltd.”,
2013 (4) LLJ 116, held that Government order
making discrimination in the matter of
compassionate appointment to a daughter on
the ground that she is married is bad. In this
context, it is relevant to extract paragraph 5 of
the aforesaid order:

“5. In similar circumstances, the
matter was considered by me in M. Sudha
V. District Collector, Thanjavur District W.P.
(MD) No. 5183 of 2013 and I set aside the
similar impugned order and issued direction
to the respondent therein to consider the
case of the petitioner therein for
compassionate appointment. In fact, in the
said judgment, I followed the earlier
judgment of mine in W.P. (MD) No.8686 of
2011. The relevant paragraph 5 of the
aforesaid judgment is extracted hereunder:-

“5. As rightly contended by the learned
counsel for the petitioner, the matter is
11

squarely covered by a decision dated
2.7.2012 rendered by me in W.P. (MD)
No.8686 of 2011. Paragraph 9 of the
judgment is extracted hereunder:-

9. As stated above, if marriage is
not a bar in the as of son, the same
yardstick shall be applied in the case of a
daughter also. At this juncture, it is
relevant to take note of the statue, namely
the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 which places
equal duty on both the son and daughter to
take care of the parents at the old age.
Therefore, in the case of death of the
parents, there cannot be any unequal
treatment among the children based on sex.
Further, as rightly contended by the learned
counsel for the petitioner, the judgment of
this Court reported in
G. Girija v. Assistant Director (Panchayats)
Kancheepuram, Kancheepuram District,
2008 5 CTC 685, applies to the facts of this
case. In the said case, the Government
servant died on 26.2.1991. The daughter
got married on 10.09.2006. She gave an
application for compassionate appointment
on 2.6.1997. This court quashed the order
declining to give compassionate
appointment holding that there cannot be
any discrimination between sons and
daughters in the case of giving
compassionate appointment. The said
judgment squarely applies to the facts of
this case. Therefore, I have no hesitation to
quash the impugned order. Accordingly, the
impugned order is quashed and a direction
is issue to the respondents to consider the
claim of the petitioner for compassionate
appointment without reference to the
marriage of the petitioner and to pass
appropriate orders in the light of this
judgment within a period of eight weeks
from the date of receipt of a copy of this
order.”

12. Learned Single Judge of Hon’ble High Court of
Chhattisgarh, in Writ Petition (S) No.296 of 2014 in the
12

case of “Smt. Sarojini Bhoi Vs. State of Chhattisgarh and
others, decided on 30.11.2015 has held as under :-

“27. In above-stated judgment with
reference to Constitutional provisions. It
has clearly been held by their Lordships of
the Supreme Court that no discrimination
can be made in public employment on
gender basis as Article 16(2) of the
Constitution of India clearly provides that
no citizen shall on the ground of sex be
ineligible or discriminated against in respect
of any employment or office under the State.
In the case in hand, the married son is
entitled for compassionate appointment on
account of death of his father or mother as
the case may be but that is not so with the
unmarried daughter as such
disqualification is based on sex. Thus, it is
a clear case of discrimination on the basis
of sex which is in teeth of Constitutional
mandate guaranteed under Article 16(2) of
the Constitution of India.

28. Thus, from the aforesaid analysis, it
emanates that institution of marriage is an
important and basic civil right of man and
woman and marriage by itself is not a
disqualification and impugned policy of the
State Government barring and prohibiting
the consideration of the married daughter
from seeking compassionate appointment
merely on the ground of marriage is plainly
arbitrary and violative of constitutional
13

guarantee envisaged in Articles 14, 15 and
16(2) of the Constitution of India being
unconstitutional.”

13. The Rule 2(c) of the Dying in Harness Rules,
1974 is violative of Articles 14, 15 16 of the
Constitution of India. It also creates artificial
classification between married son and married daughter
only on the basis of sex. Since married son is included in
the definition of the “family”, there is no reason why the
married daughter should not be included in the definition
of “family”. It is a case of gender discrimination

14. Son and daughter are supposed to take care of
the parents at the old age. The married son is to be
treated at par with the unmarried daughter. Not
considering the married daughter for compassionate
appointment merely on the basis of marriage is patently
arbitrary and unreasonable.

15. Accordingly, the writ petition is allowed. The
exclusion of married daughter from the ambit of the
expression “family” under Rule 2(c) of the U.P.
Recruitment of Dependants of Government Servants
Dying in Harness Rules, 1974 is declared illegal and
unconstitutional, being violative of Articles 14,15 16 of
the Constitution of India and respondents are directed to
consider the claim of the petitioner for compassionate
appointment, within a period of eight weeks from today.

(Rajiv Sharma, J.)
JKJ 24.04.2017

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