Gujarat High Court
Jinalben Murlidhar Shastri vs Dakshin Gujarat Vij Company Limited on 1 May, 2024
NEUTRAL CITATION
C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14073 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JINALBEN MURLIDHAR SHASTRI
Versus
DAKSHIN GUJARAT VIJ COMPANY LIMITED & ORS.
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Appearance:
MR ADITYA PARIKH FOR MR MRUGEN K PUROHIT(1224) for the
Petitioner(s) No. 1
MR VIRAL J DAVE(5751) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 01/05/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 of the Page 1 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined Constitution of India, the petitioner has prayed for the following reliefs :
"(A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to quash and set aside impugned communication / decision dated 11 th April, 2016 at Annexure-A and further may be pleased to declare that action on the part of the respondent company in not granting compassionate appointment to the petitioner is illegal, arbitrary, unconstitutional and may be pleased to direct the respondent company to consider the case of the petitioner for compassionate appointment and also may be pleased to direct the respondent company to allow the present petitioner to join service pursuant to communications dated 18th June, 2015 and 03rd July, 2015 of the respondents;
Amendment carried out as per Hon'ble Court's order dated 31.01.2019 (A1) This Hon'ble Court may be please to hold and declare that policy of compassionate appointment of the respondent company under clause 9 of GSO 295 to the extent of it excluding a married daughter from the purview of compassionate appointment is illegal, unjust, arbitrary, against the provisions of Article 14 of the Constitution of India and bad in law;
(B) Pending the admission hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondents to allow the present petitioner to join on duty with the respondent company as Junior Assistant (U.R.) pursuant to communications dated 18th June, 2015 and 03rd July, 2015; (C) Any other and further relief or reliefs to which this Hon'ble Court deemed fit in the interest of justice, may kindly be granted;"
2. The brief facts giving rise to the present petition are as under :
2.1 The father of the petitioner Murlidhar Gangadhar Shastri was serving at Kosamba Sub Division of respondent - Dakshin Gujarat Vij Company Limited, who expired in an accident on 3 rd Page 2 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined March, 2006. That the date of birth of the petitioner is 13 th December, 1994 and on attaining the age of majority, the petitioner submitted an application before the respondent Company for giving her compassionate appointment. That the application of the petitioner was processed and panchnama and other inquiry was made and verification was carried out and ultimately, it was found that the petitioner is eligible for appointment on compassionate basis and accordingly, proposal for appointment of the petitioner as Junior Assistant (U.R.) was approved by the respondent Company.
2.2 It is the case of the petitioner that, pursuant to the aforesaid communication, on 18th June, 2015, the petitioner was directed by the C.E.O. and Superintending Engineer (O&M), Bharuch, intimated the present petitioner to approach him for verification of certificate. That on 3 rd July, 2015, the C.E.O. and Superintending Engineer (O&M), Bharuch, has also intimated the present petitioner to remain present before him with original certificate for verification on 17 th July, 2015. That, in the meantime, the petitioner got married before her application was considered and she was not residing at the address where the above referred two communications were Page 3 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined made and therefore, the petitioner was not aware about the aforesaid communications, however, the moment it came to the knowledge of the petitioner, she immediately remained personally present before the authority concerned. That, even after the aforesaid all the procedures, again inquiry was conducted by the respondent Company and re-opened the whole inquiry and panchnama was also drawn. However, since the petitioner got married, she was denied compassionate appointment. That on 13th October, 2015, the petitioner also intimated C.E.O and Superintending Engineer (O&M), Bharuch to allow her to report on job. However, she was not allowed to join duty and ultimately, by the aforesaid impugned communication, compassionate appointment was denied to the petitioner.
2.3 Being aggrieved and dissatisfied with the impugned communication / decision, the petitioner has preferred the present petition under Article 226 of the Constitution of India with the aforesaid prayers.
3. Heard learned advocate Mr.Aditya Parikh, appearing on behalf of Mr.Mrugen Purohit, the learned advocate appearing Page 4 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined on behalf of the petitioner and learned advocate Mr.Viral Dave, appearing on behalf of the respondent No.2.
4. Learned advocate Mr.Parikh has submitted that the action on the part of the respondent Company in taking decision and passing the impugned communication dated 11 th April, 2016 is erroneous, arbitrary, illegal and unconstitutional and therefore, the same deserves to be quashed and set aside.
He has submitted that the petitioner being the only daughter of the deceased who expired in the accident on duty, she is entitled for compassionate appointment. He has submitted that at the time when the father of the petitioner died, the petitioner was minor and therefore, she had requested the respondent Company that as and when she becomes major, she would again apply for appointment on compassionate basis. He has submitted that relying upon Clause 9 of GSO 295, though the petitioner was eligible for compassionate appointment, her application came to be rejected only on the ground that she got married on 18th March, 2013 and therefore, her application cannot be considered, there was no other reason stated by the respondent Company for rejecting the application of the petitioner for compassionate Page 5 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined appointment and therefore, this is a clear violation of the settled legal principles enunciated by different Courts. 4.1 Learned advocate Mr.Parikh has referred and relied upon the decision of the High Court of Karnataka dated 15.12.2020, rendered in case of Smt. Bhuvaneshwari V. Puranik Vs. The State of Karnataka & Others, in Writ Petition No.17788 of 2018, whereby, the identical text is involved and the High Court of Karnataka allowed the petition by observing in paragraphs 15.4 and 15.5, which read as under :
"15.4 An analysis of the judgments relied on by the petitioner and the respondent-State as extracted hereinabove would lead to two conclusions. One, dependency is the key determinative factor for grant of compassionate appointment and the other being a Rule that brooks discrimination on the basis of gender is not to remain in the statute book as it would violate Articles 14, 15 and 16 of the Constitution of India, Article 15 in particular, which prohibits discrimination on the basis of religion, race, sex, gender. Even the remotest impression a Rule gives that its consequence is resulting in any of the ingredients of Articles 14 and 15 being violated, such a Rule will have to be held to be ultravires the Constitution.
15.5. The Rule that is called in question and has fallen for interpretation, without a shadow of a doubt is discriminatory as the words "unmarried" permeates through the entire fabric of Rule 2 and 3 as extracted hereinabove to deny appointment to a married daughter. If the Rule is left as it is, in view of my preceding analysis, would create a discrimination on the basis of gender. If the marital status of a son does not make any difference in law to his entitlement for seeking appointment on compassionate grounds, the marital status of a daughter should make no difference, as the married daughter does not cease to be a part of the family and law cannot make an assumption that married sons alone continue to be the part of the family. Therefore, the Rule which becomes violative Page 6 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined of Articles 14, 15 on its interpretation will have to be struck down as unconstitutional as excluding the daughters purely on the basis of marriage will constitute an impermissible discrimination which is invidious and be violative of Articles 14 and 15 of the Constitution of India.
It should be remembered that "nature bestows so much on women; the law cannot bestow too little".
4.2 Learned advocate Mr.Parikh has also referred and relied upon the decision of this Court dated 07.03.2023 rendered in case of Anjana Dharamshi Parmar Vs. State of Gujarat through Secretary & 5 Others in Special Civil Application No.919 of 2011, wherein, it has been observed and held as under :
"1. By way of the present petition under Articles 14, 16, 21 and 226 of the Constitution of India, the petitioner has prayed to issue a writ in the nature of mandamus or any other appropriate writ, order, or direction to declare clause B(2) of the policy dated 10.03.2000 of the State of Gujarat in connection with compassionate appointment as unconstitutional and ultra-vires to Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India which discriminates a married daughter for having right to appointment on compassionate grounds.
2. The petition was admitted. In response to notice issued by this Court, the respondents have opposed the same by filing the affidavit in reply.
3. When the matter is taken up today for final hearing, learned advocate Mr.Shivang Shah for the petitioner has submitted that the issue involved in the present petition is covered by a decision of the Allahabad High Court in case of Vimla Srivastava and Ors. v. State of U.P. and Ors. rendered in Writ-C Nos.60881, 14853 and 20204 of 2015 decided on 04.12.2015 as well as another decision dated 15.12.2022 passed by the High Court of Karnataka in case of Smt. Bhuvaneshwari V. Puranik v. The State of Karnataka and anr.Page 7 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024
NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined rendered in Writ Petition No.17788/2018. The same issue which was considered by another bench of Karnataka High Court in the case of C.N.Apporva Shree & Anr. v. State of Karnataka. The discriminatory clause with regard to treating a married daughter to be disqualified for appointment on compassionate grounds was challenged before the Hon'ble Supreme Court in Petition(s) for Special Leave to Appeal (C) No(s).20166 of 2021, wherein, the judgement delivered in Smt. Bhuvaneshwari V. Puranik (supra) was upheld. Mr.Shah would therefore submit that the petition is required to be allowed.
4. On the other hand, learned AGP Mr.Sahil Trivedi would submit that subsequent to the policy in existence, the State of Gujarat has already issued another policy and therefore there is no need to allow the petition.
5. We have heard learned advocates for the respective parties.
6. As per the policy dated 10.03.2000, particularly clause B(2) of the policy, it has been specifically stated that only following would be the members of the deceased employee which does not include a married daughter. The translated version of the motive, clauses A, B and C of the policy dated 10.03.2000 read as under:
"Objective :
The objective of this scheme is to give appointment to one member of the dependent family of the deceased employee who dies during service leaving behind them in helpless situation without any means of livelihood and to give them relief in financial crisis, to meet the exigencies and to provide help to the family.
(A) : To whom the scheme will apply to, (1) No income limit will apply to the appointment on compassionate ground under this scheme.
(2) The scheme will apply to the member of the dependent family of the deceased employee of the Class : 3 and Class :
4 cadre appointed on regular basis and having service of minimum five years and employees of Class : 3 and Class : 4 cadre on work charge establishment. This scheme will not apply to the daily wagers, casual workers, apprentices appointed on ad-hoc, contractual or reemployment basis.Page 8 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024
NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined (B) Who shall be considered as the member of dependent family.
Deceased employee's (1) Legally wedded wife or husband (2) Son or unmarried daughter (in the event of childless employee, child adopted legally by executing adoption deed under "Hindu Adoption Act, 1956" while the employee was alive.
(C) : Who shall not be considered as the member of dependent family.
Deceased employee's (1) Mother (2) Father (3) Brother (4) Sister (5) Other relatives."
Translation is provided by the Translator of High Court of Gujarat
7. Therefore, considering the present facts, when the petitioner applied for compassionate appointment and while the application was being considered, she was unmarried. However, when finally the application was decided and she was granted appointment, the authority did not permit her to join the services since it was found that in the interregnum she got married before she was offered compassionate appointment.
8. In case of Vimla Srivastava (supra), the Division Bench while dealing with the similar provision has held that the word 'unmarried' used in definition of family is contrary to the provisions of the Constitution of India and particularly under Article 19(1)(g) and accordingly struck down the same.
9. Similar is the view taken in case of Smt. Bhuvaneshwari V. Puranik (supra).
10. We have also gone through the decision of the Hon'ble Apex Court in case of C.N.Apporva Shree & Anr. (supra). The order reads as under:
Page 9 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024
NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined "We have heard learned counsel for the petitioner(s) and have analyzed the impugned judgment. We give our full imprimatur to the reasoning of the High Court, more so, as even the rule in question relied upon by the petitioner to deny a married daughter a job on compassionate grounds while permitting it to a married son, has been quashed in the judgment of the Karnataka High Court in Bhuvaneshwari V. Puranik v. State of Karnataka - (2021) 1 AKR 444 [AIR Online 2020 Kar 2303].
The Special Leave Petition is dismissed.
Pending application stands disposed of."
11. Considering the aforesaid two decisions of various High Courts and as the same has been confirmed by the Hon'ble Apex Court, we are of the view that the petition requires consideration. Accordingly, the petition is allowed. The word used in clause B(2) 'unmarried' is hereby struck down.
12. Therefore the authorities are directed to consider the case of the petitioner for appointment if otherwise found eligible.
13. Rule is made absolute accordingly. Direct service is permitted." 4.3 The decision of the High Court of Bombay dated 01.08.2011 rendered in case of Aparna Narendra Zambre and Others Vs. Assistant Superintendent Engineer and Others in Writ Petition No.1284 of 2011, wherein, it has been observed in paragraph 9 as under :
"9. Two broad questions would arise while answering this issue. Firstly, whether the eligibility of the candidate such as petitioner No. 1 should be reckoned with reference to the date when she became eligible for consideration to be appointed on compassionate ground, or whether her eligibility should be reckoned with reference to the date when the suitable vacancy becomes available? Secondly, whether the expression "unmarried daughter" in clause 3(a) of the Government Resolution can be said to be just and fair, as it excludes the married daughter for being Page 10 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined appointed on compassionate ground?"
4.4 The decision of the Hon'ble Apex Court in case of Rekha Chaturvedi (Smt) Vs. University of Rajasthan, reported in [1993] Supp (3) SCC 168, wherein, it has been observed and held in paragraph 10 as under :
"10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad & Anr. v. B. Sarat Chandra & Ors., (1990) 4 SLR 235 and The District Collector & Chairman, Page 11 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. v. M. Tripura Sundari Devi, (1990) 4 SLR 237."
4.5 The decision of the Hon'ble Apex Court in case of State of Maharashtra Vs. Madhuri Maruti Vidhate (Since After Marriage Smt. Madhuri Santosh Koli), reported in AIR 2022 SC 5176, wherein, it has been observed and held in paragraph 5 as under :
"5. While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in the case of Director of Treasuries in Karnataka and Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh Vs. State of Karnataka, (2020) 7 SCC 617, this Court has summarised the principle governing the grant of appointment on compassionate ground as under:-
(i) that the compassionate appointment is an exception to the general rule;
(ii) that no aspirant has a right to compassionate appointment;
(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;
(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;
(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment."
4.6 Learned advocate Mr.Parikh has, therefore, urged that in view of the aforesaid decisions, the present petition be allowed Page 12 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined and the respondent Company be directed to allow the present petitioner to join on duty with the respondent Company.
5. As against that, the learned advocate Mr.Viral Dave appearing on behalf of the respondent Company has vehemently opposed the present petition. He has referred to the detailed affidavit-in-reply filed on behalf of the respondent Company, more particularly paragraph 17, and submitted that since the petitioner got married on 18.03.2013 before 2 years of verification of original documents i.e. on 17.07.2015 and therefore, the petitioner is not entitled to get any relief as prayed for in the present petition. He has therefore, urged that the present petition be dismissed.
6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. Considering the facts narrated in the present petition, the controversy involved is to the effect that whether a married daughter is entitled to the appointment on compassionate ground or not. I have gone through the recent pronouncement of the Hon'ble Apex Court in Special Leave to Appeal (C) No.20166 of 2021, whereby, the Hon'ble Apex Court has Page 13 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024 NEUTRAL CITATION C/SCA/14073/2016 JUDGMENT DATED: 01/05/2024 undefined confirmed the judgment rendered by the High Court of Karnataka in case of Bhuvaneshwari V. Purani Vs. State of Karnataka, wherein the identical issue was involved and the Hon'ble Apex Court dismissed the SLP filed by the State of Karnataka and confirmed the decision of the Karnataka High Court. I have also gone through the recent decision of the Division Bench of this Court dated 07.03.2023 rendered in Special Civil Application No.919 of 2011.
7. Considering facts and circumstances of the present case and considering the aforesaid decisions, I am of the opinion that the present petition requires consideration. Hence, the present petition is hereby allowed. The respondent Company is hereby directed to reconsider the claim of the present petitioner for appointment of compassionate grounds after due verification and after completing the process within a period of 2 months i.e. on or before 15.07.2024. Rule is made absolute.
Direct service is permitted.
(HEMANT M. PRACHCHHAK,J) Dolly Page 14 of 14 Downloaded on : Wed May 08 20:30:59 IST 2024