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

[Cites 47, Cited by 0]

Calcutta High Court (Appellete Side)

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

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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