Madhya Pradesh High Court
Smt. Madhuri Tiwari vs The State Of Madhya Pradesh on 8 February, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 8 th OF FEBRUARY, 2024
WRIT PETITION No. 3201 of 2023
BETWEEN:-
SMT. MADHURI TIWARI W/O SHRI SATISH TIWARI,
AGED ABOUT 42 YEARS, OCCUPATION: UNEMPLOYED
C/O SALIGRAM SHUKLA VILLAGE AND POST ANJANIA
TEHSIL BICHHIYA DISTRICT MANDLA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI DHARMESH CHATURVEDI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
CHIEF SECRETARY GENERAL ADMINISTRATION
DEPARTMENT MANTRALAYA BHOPAL (MADHYA
PRADESH)
2. COMMISSIONER TRIBAL WELFARE
DEPARTMENT MANTRALAYA BHOPAL (MADHYA
PRADESH)
3. COLLECTOR MANDLA DISTRICT (MADHYA
PRADESH)
4. ASSISTANT COMMISSIONER TRIBAL WELFARE
D EPARTM EN T MANDLA DISTRICT (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI S.S.CHAUHAN - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
Signature Not Verified
Signed by: ANINDYA
SUNDAR MUKHOPADHYAY
Signing time: 3/14/2024
11:30:27 AM
2
ORDER
This petition is filed challenging the vires of Clause 2.6 of the policy of compassionate appointment on the basis of which her claim was rejected. It is argued that for grant of compassionate appointment, the basic criteria is the penury and dependency which is required to be seen by the Authorities. There cannot be any gender discrimination. The petitioner being a sister was a nominee in the service record of the deceased employee, therefore, she was entitled for consideration but owing to Clause 2.6 of the policy her case was rejected. It is argued that this matter was considered by the Full Bench of this Court in the case of Meenakshi Dubey Vs. M.P. Poorva Kshetra Vidyut Vitaran (W.A.No.756 of 2019) decided on 02.03.2020 wherein the Full Bench o f this Court has struck down Clause 2.2 of the policy of compassionate appointment which debars a married daughter from consideration for grant of compassionate appointment. The basic point which was taken note of by the Full Bench of this Court is that there cannot be any distinction or exclusion or restriction made on the basis of sex which has effect or purpose on impairing or nullifying the recognized enjoyment. Under these circumstances, the prayer is made to struck down Clause 2.6 of the policy which debars the married sister from even applying for grant of compassionate appointment.
2. It is the case of the petitioner that she is a married sister of the deceased employee who had the burden of maintaining entire family. After his death, the entire family is dependent upon her. She is residing with her mother and father who are suffering from various old age diseases and without any source of income it is very difficult to maintain the family. The entire responsibilities are upon the petitioner is to maintain an old ailing father and mother. She made an application seeking compassionate appointment in lieu of death of her brother Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 3/14/2024 11:30:27 AM 3 who was an employee of the respondent/Department. She is fully qualified to hold the post in the respondent/Department. The respondents have rejected the claim of the petitioner on the basis of clause 2.6 mentioned in the policy dated 29.09.2014 which is the subject matter of the petition.
3. It is argued that similar controversy arose for consideration before the Full Bench of this Court in the case of Meenakshi Dubey (supra) wherein the Full Bench has considered the fact that any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose on impairing or nullifying the recognized employment or exercise by women, irrespective of their marital status etc would amount to discrimination and considering the judgment passed by the Hon'ble Supreme Court in the case of Secretary, Ministry of Defence Vs. Babita Puniya and others reported in 2020 SCC Online SC 200, the Bench had declared Clause 2.2 of the policy to be unconstitutional and being violative of Articles 14, 15, 16 and 39 (1) of the Constitution of India to the extent that it deprives the married daughter of her right to be considered for grant of compassionate appointment. Therefore, Clause 2.4 of the policy therein was declared as ultra vires. In the present case also similar provision is available i.e. Clause 2.6 of the policy which causes a serious discrimination between the married and unmarried sister who was totally dependent upon the parents and the burden of entire family, after the death of sole bread earner, is cast upon her. It is fairly submitted that on earlier occasion, the writ petition was filed before this Court against the rejection of application for grant of compassionate appointment being Writ Petition No.18556 of 2020 which was dismissed vide order dated 17.06.2021 against which writ appeal was preferred being Writ Appeal No.1053 of 2021 which was also dismissed but in the aforesaid case the relevant provision of the policy were not challenged and this petition is filed Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 3/14/2024 11:30:27 AM 4 challenging the relevant provision of the policy and praying for declaring it to be ultra vires and violative of Articles 14 and 16 of the Constitution of India. It is submitted that once these clauses in the policy are declared to be ultra vires and violative of Articles 14 and 16 of the Constitution of India, then the very reason which has been assigned by the authorities for rejecting her claim for compassionate appointment is not available to them. They are required to reconsider the application of the petitioner.
4. Per contra counsel appearing for the respondents has vehemently opposed the contentions stating therein that there is a specific clause in the policy which deals with grant of compassionate appointment. There is no provision for consideration of case for grant of compassionate appointment of a married sister of the deceased employee. The aforesaid aspect was duly considered by the Court in the earlier round of litigation. The petitioner could have very well challenged the vires of the clause of the policy in the earlier round of litigation. She has chosen not to do so, therefore, he is estopped from filing the subsequent petition virtually on the same grounds with a new story i.e. now he is challenging the particular clause of the policy. Therefore, the petition itself is not maintainable on this ground. He has prayed for dismissal of the petition.
5. Heard the learned counsels for the parties and perused the record.
6. The sole question for consideration before this Court is as to whether the Clause 2.6 of the policy for grant of compassionate appointment is creating the gender differentia for consideration of application for grant of compassionate appointment between married and unmarried sister.
7. For grant of compassionate appointment the sole criteria available to the authorities is the factum of dependency and penury. There cannot be any Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 3/14/2024 11:30:27 AM 5 discrimination based upon the grounds that the candidate applying for grant of compassionate appointment is married or unmarried. The aforesaid aspect was considered by Full Bench of this Court in the case of Meenakshi Dubey (supra) wherein it is held as under :-
"14. The Constitution Bench of Supreme Court in Budhan Choudhry vs. State of Bihar, (1955) 1 SCR 1045 made it clear that to pass a test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. In view of this decision, Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. As noticed, the various High Courts held that the classification made by impugned clause amounts to an artificial classification which divides a homogenous class and creates a class within the class.
15. The Apex Court in Dr. (Mrs.) Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278 opined that a daughter after her marriage does not cease to be a daughter of her father or mother and observed as under:
"12. We are unable to accept the contention of the appellant that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves. It has been rightly pointed out by the High Court that a daughter after her marriage does not cease to be a daughter of the father or mother. It has been earlier noticed that it is the moral obligation of the children to maintain their parents. In case the contention of the appellant that the daughter has no liability whatsoever to maintain her parents is accepted, parents having no son but only daughters and unable to maintain themselves, would go destitute, if the daughters even though they have sufficient means refuse to maintain their parents
13. After giving our best consideration to the question, we are of the view that Section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself."
(emphasis supplied)
16. It is noteworthy that in the case of Vijaya Manohar (Supra), the Apex Court was talking about 'moral obligation' of children to maintain their parents. The Parliament in its wisdom introduced Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 3/14/2024 11:30:27 AM 6 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007. This Act places equal duty on both, sons and daughters to take care and maintain the parents. In view of this Act, the obligation to take care of parents assumes more importance and it is not only a "moral duty", it became a "statutory duty" of children as well. This aspect was considered in Krishnaveni's case (supra) wherein it was held as under:
"28. The case on hand is a classic case, wherein, the deceased Government servant has no male issue. Nowadays, it is a common thing that a family have a single child; either male or female. Thus, if a Government servant has only daughter, as in this case, the widow of the Government servant cannot be stated that her married daughter could not be provided compassionate appointment, particularly, when she has to solely rely on her daughter. As stated above, Maintenance and Welfare of Parents and Senior Citizens Act, also now places equal responsibility on both the son and daughter to take care of their parents."
17. We are not oblivious of the settled legal position that compassionate appointment is an exception to general rule. As per the policy of compassionate appointment, State has already decided to consider claims of the married daughters (Clause 2.4) for compassionate appointment but such consideration was confined to such daughters who have no brothers. After the death of government servant, it is open to the spouse to decide and opt whether his/her son or daughter is best suited for compassionate appointment and take responsibilities towards family which were being discharged by the deceased government servant earlier. The offending clause which restricts such consideration only for such married daughter is subject matter of consideration and examination. The Constitution Bench of Supreme Court in Budhan Choudhry (Supra) held that substantive law, procedural law or even an action can be interfered with if it does not pass the "litmus test"
laid down in the said case. Hence, in a case of this nature, adjudication is not required regarding creation of right of married woman, indeed, judicial review is focused against curtailment of claim of such married woman when deceased government servant died leaving behind son/s.
18. The matter may be viewed from another angle. Human rights and fundamental freedom have been reiterated by the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Vienna Convention on the Elimination of all forms of Discrimination Against Women (for short 'CEDAW') was ratified by Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 3/14/2024 11:30:27 AM 7 the UNO on 18-12-1979. The Government of India who was an active participant to CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5(e), 16(1), 16(2) and 29 thereof. The Preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes it more difficult for the full development of potentialities of women in the service of their countries and of humanity. Article 1 defines discrimination against women to mean - "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose on impairing or nullifying the recognized enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field". Article 2(b) makes it obligatory for the State parties while condemning discrimination against women in all its forms, to pursue, by appropriate means, without delay, elimination of discrimination against women by adopting "appropriate legislative and other measures including sanctions where appropriate, prohibiting all discriminations against women" to take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause (C) enjoins to ensure legal protection of the rights of women on equal basis with men through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins State parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that - "the State parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women". Parliament has enacted the Protection of Human Rights Act, 1993. Section 2(d) defines human rights to mean "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India". Thereby the principles embodied in CEDAW and the concomitant Right to Development became integral parts of the Indian Constitution and the Human Rights Act and became enforceable. Section 12 of Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 3/14/2024 11:30:27 AM 8 Protection of Human Rights Act charges the Commission with duty for proper implementation as well as prevention of violation of the human rights and fundamental freedoms. Article 5(a) of CEDAW on which the Government of India expressed reservation does not stand in its way and in fact Article 2(f) denudes its effect and enjoins to implement Article 2(f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-à-vis Articles 1, 3, 6 and 8 of the Declaration of Right to Development. Though the directive principles and fundamental rights provide the matrix for development of human personality and elimination of discrimination, these conventions add urgency and need for immediate implementation. It is, therefore, imperative for the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14 and 15 of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should by appropriate measures modify law/policy and abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.
19. In a recent judgment reported in 2020 SCC OnLine SC 200 (Secretary, Ministry of Defence vs. Babita Puniya and others), the Apex Court opined that -
67. The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of nondiscrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1)..
This recent judgment in Babita Puniya (Supra) is a very important step to ensure "Gender Justice". In view of catena of judgments referred hereinabove, it can be safely concluded that Clause 2.2 to the extent it deprives married woman from right of consideration for compassionate appointment violates equality clause and cannot be countenanced. By introducing Clause 2.4, the Government partially recognised the right of consideration of married daughter but such consideration was confined to such daughters who have no brothers. Clause 2.2, as noticed, gives option to the living spouse of deceased government servant to nominate son or unmarried daughter. There is no condition imposed while considering a son relating to marital status. Adjective/condition of "unmarried" is affixed for the daughter. This condition is without there being any justification and; therefore, arbitrary and discriminatory in nature.
21. Looking from any angle, it is crystal clear that clause 2.2 which deprives the married daughter from right of consideration cannot Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 3/14/2024 11:30:27 AM 9 sustain judicial scrutiny. Thus, for different reasons, we are inclined to hold that Indore Bench has rightly interfered with Clause 2.2 of the said policy in the case of Smt. Meenakshi (Supra).
22. In nutshell, broadly, we are in agreement with the conclusion drawn by Indore Bench in Smt. Meenakshi (Supra) and deem it proper to answer the reference as under:
Clause 2.2 of the policy dated 29.09.2014 is violative of Articles 14, 15, 16 and 39(a) of the Constitution of India to the extent it deprives the married daughter from right of consideration for compassionate appointment. We find no reason to declare Clause 2.4 of the policy as ultra vires. To this extent, we overrule the judgment of Indore Bench in the case of Meenakshi(Supra)
23. The issue is answered accordingly."
8. From perusal of the aforesaid, it is apparently clear that there cannot be any distinction between the married and unmarried person who applies for grant of compassionate appointment. Therefore, the relevant clause of the policy being violative of Articles 14, 16 and 39 (1) of the Constitution of India is hereby declared to be ultra vires. Once the relevant clause in the policy is being declared to be unconstitutional and ultra vires and once this Court has declared Clause 2.6 of the policy governing the case of the petitioner to be ultra vires and unconstitutional the further decision taken by the authorities is also illegal and unsustainable.
9. Under these circumstances, mere fact that the petitioner has approached this Court on earlier occasion by filing the writ petition and writ appeal and could not get any relief from the Court will be of no consequence and will not affect the subsequent consideration of the application by the authorities in pursuance to the decision taken by this Court declaring Clause 2.6 of the policy for grant of compassionate appointment to be unconstitutional. Under these circumstances, the authorities are directed to reconsider the case of the petitioner for grant of compassionate appointment solely on the ground of Signature Not Verified factum of dependency and penury. The authorities will be free to consider the Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 3/14/2024 11:30:27 AM 10 aspect whether there is any provision for grant of compassionate appointment to a married sister depending upon the facts and circumstances of the case. The authorities will also take note of the amendment brought in the policy by the State Government while considering the case of the petitioner.
10. With the aforesaid observations, the petition is allowed and disposed off.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
AM
Signature Not Verified
Signed by: ANINDYA
SUNDAR MUKHOPADHYAY
Signing time: 3/14/2024
11:30:27 AM