Gujarat High Court
Anjana Dharamshi Parmar vs State Of Gujarat Through Secretary on 7 March, 2023
Bench: A.J.Desai, Biren Vaishnav
NEUTRAL CITATION
C/SCA/919/2011 JUDGMENT DATED: 07/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 919 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ANJANA DHARAMSHI PARMAR
Versus
STATE OF GUJARAT THROUGH SECRETARY & 5 other(s)
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Appearance:
MR SHIVANG M SHAH(5916) for the Petitioner(s) No. 1
MR.SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 07/03/2023
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)
1. By way of the present petition under Articles 14, Page 1 of 8 Downloaded on : Sun Sep 17 22:28:45 IST 2023 NEUTRAL CITATION C/SCA/919/2011 JUDGMENT DATED: 07/03/2023 undefined 16, 21 and 226 of the Constitution of India, the petitioner has prayed to issue a writ in the nature of mandamus or any other appropriate writ, order, or direction to declare clause B(2) of the policy dated 10.03.2000 of the State of Gujarat in connection with compassionate appointment as unconstitutional and ultra-vires to Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India which discriminates a married daughter for having right to appointment on compassionate grounds.
2. The petition was admitted. In response to notice issued by this Court, the respondents have opposed the same by filing the affidavit in reply.
3. When the matter is taken up today for final hearing, learned advocate Mr.Shivang Shah for the petitioner has submitted that the issue Page 2 of 8 Downloaded on : Sun Sep 17 22:28:45 IST 2023 NEUTRAL CITATION C/SCA/919/2011 JUDGMENT DATED: 07/03/2023 undefined involved in the present petition is covered by a decision of the Allahabad High Court in case of Vimla Srivastava and Ors. v. State of U.P. and Ors. rendered in Writ-C Nos.60881, 14853 and 20204 of 2015 decided on 04.12.2015 as well as another decision dated 15.12.2022 passed by the High Court of Karnataka in case of Smt. Bhuvaneshwari V. Puranik v. The State of Karnataka and anr. rendered in Writ Petition No.17788/2018. The same issue which was considered by another bench of Karnataka High Court in the case of C.N.Apporva Shree & Anr. v. State of Karnataka. The discriminatory clause with regard to treating a married daughter to be disqualified for appointment on compassionate grounds was challenged before the Hon'ble Supreme Court in Petition(s) for Special Leave to Appeal (C) No(s).20166 of 2021, wherein, the Page 3 of 8 Downloaded on : Sun Sep 17 22:28:45 IST 2023 NEUTRAL CITATION C/SCA/919/2011 JUDGMENT DATED: 07/03/2023 undefined judgement delivered in Smt. Bhuvaneshwari V. Puranik (supra) was upheld. Mr.Shah would therefore submit that the petition is required to be allowed.
4. On the other hand, learned AGP Mr.Sahil Trivedi would submit that subsequent to the policy in existence, the State of Gujarat has already issued another policy and therefore there is no need to allow the petition.
5. We have heard learned advocates for the respective parties.
6. As per the policy dated 10.03.2000, particularly clause B(2) of the policy, it has been specifically stated that only following would be the members of the deceased employee which does not include a married daughter. The translated version of the motive, clauses A, B and C of the policy dated Page 4 of 8 Downloaded on : Sun Sep 17 22:28:45 IST 2023 NEUTRAL CITATION C/SCA/919/2011 JUDGMENT DATED: 07/03/2023 undefined 10.03.2000 read as under:
"Objective :
The objective of this scheme is to give appointment to one member of the dependent family of the deceased employee who dies during service leaving behind them in helpless situation without any means of livelihood and to give them relief in financial crisis, to meet the exigencies and to provide help to the family.
(A) : To whom the scheme will apply to, (1) No income limit will apply to the appointment on compassionate ground under this scheme.
(2) The scheme will apply to the member of the dependent family of the deceased employee of the Class : 3 and Class : 4 cadre appointed on regular basis and having service of minimum five years and employees of Class : 3 and Class : 4 cadre on work charge establishment. This scheme will not apply to the daily wagers, casual workers, apprentices appointed on ad-hoc, contractual or re-
employment basis.
(B) Who shall be considered as the member of dependent family.
Deceased employee's (1) Legally wedded wife or husband (2) Son or unmarried daughter (in the event of childless employee, child adopted legally by executing adoption deed under "Hindu Page 5 of 8 Downloaded on : Sun Sep 17 22:28:45 IST 2023 NEUTRAL CITATION C/SCA/919/2011 JUDGMENT DATED: 07/03/2023 undefined Adoption Act, 1956" while the employee was alive.
(C) : Who shall not be considered as the member of dependent family.
Deceased employee's (1) Mother (2) Father (3) Brother (4) Sister (5) Other relatives."
Translation is provided by the Translator of High Court of Gujarat
7. Therefore, considering the present facts, when the petitioner applied for compassionate appointment and while the application was being considered, she was unmarried. However, when finally the application was decided and she was granted appointment, the authority did not permit her to join the services since it was found that in the interregnum she got married before she was offered compassionate appointment.
8. In case of Vimla Srivastava (supra), the Division Page 6 of 8 Downloaded on : Sun Sep 17 22:28:45 IST 2023 NEUTRAL CITATION C/SCA/919/2011 JUDGMENT DATED: 07/03/2023 undefined Bench while dealing with the similar provision has held that the word 'unmarried' used in definition of family is contrary to the provisions of the Constitution of India and particularly under Article 19(1)(g) and accordingly struck down the same.
9. Similar is the view taken in case of Smt. Bhuvaneshwari V. Puranik (supra).
10. We have also gone through the decision of the Hon'ble Apex Court in case of C.N.Apporva Shree & Anr. (supra). The order reads as under:
"We have heard learned counsel for the petitioner(s) and have analyzed the impugned judgment. We give our full imprimatur to the reasoning of the High Court, more so, as even the rule in question relied upon by the petitioner to deny a married daughter a job on compassionate grounds while permitting it to a married son, has been quashed in the judgment of the Karnataka High Court in Bhuvaneshwari V. Purani v. State of Karnataka - (2021) 1 AKR 444 [AIR Online 2020 Kar 2303].Page 7 of 8 Downloaded on : Sun Sep 17 22:28:45 IST 2023
NEUTRAL CITATION C/SCA/919/2011 JUDGMENT DATED: 07/03/2023 undefined The Special Leave Petition is dismissed. Pending application stands disposed of."
11. Considering the aforesaid two decisions of various High Courts and as the same has been confirmed by the Hon'ble Apex Court, we are of the view that the petition requires consideration. Accordingly, the petition is allowed. The word used in clause B(2) 'unmarried' is hereby struck down.
12. Therefore the authorities are directed to consider the case of the petitioner for appointment if otherwise found eligible.
13. Rule is made absolute accordingly. Direct service is permitted.
(A.J.DESAI, ACJ) (BIREN VAISHNAV, J) ANKIT SHAH Page 8 of 8 Downloaded on : Sun Sep 17 22:28:45 IST 2023