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Madhya Pradesh High Court

Savitri Kumari vs The Chairman/Managing Director on 19 November, 2020

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

                                                                     1                              WP-13651-2016
                                      The High Court Of Madhya Pradesh
                                                 WP-13651-2016
                                        (SAVITRI KUMARI Vs THE CHAIRMAN/MANAGING DIRECTOR AND OTHERS)

                         9
                         Jabalpur, Dated : 19-11-2020
                                 Heard through Video Conferencing.

                                 Shri Sanjeev Kumar Tiwari, learned counsel for the petitioner.
                                 Shri Greeshm Jain, learned counsel for respondent no.1.

Shri Ritwik Parashar, learned Panel Lawyer for the respondent-State.

This petition has been filed under Article 226 of the Constitution of India challenging the order dated 18/05/2016 (Annexure-P-5), whereby the claim of the petitioner for grant of compassionate appointment has been rejected by the respondents on the ground that there is no provision in the respondent-establishment to grant compassionate appointment to the married daughter.

2. The father of the petitioner was working in respondent- establishment on the post of Fitter Grade-I and died in harness on 27/11/2015. The petitioner being a daughter was fully dependent upon her parents and after the death of her father made an application before the respondent for grant of compassionate appointment. The mother of the petitioner has also written a letter that due to death of her husband, compassionate appointment may be granted in favour of the petitioner. The claim has been rejected and was accordingly informed to the mother of the petitioner that daughter cannot be given compassionate appointment as she is already married and as per the policy no provision is available to grant benefit of compassionate appointment to the married daughter.

3. Being aggrieved by the said, this petition has been filed seeking quashment of the order and also the provision of the policy of the respondent-

department under which Clause 9.3.3 makes married daughter disqualify to Digitally signed by SMT SUSHMA KUSHWAHA Date: 2020.11.24 12:47:33 IST 2 WP-13651-2016 get the benefit of compassionate appointment.

4. Learned counsel for the petitioner has relied upon a decision passed by Full Bench of this Court in W.A.No.756/2019 (Meenakshi Dubey Vs.M.P.Poorva Kshetra Vidyut Vitran Co.Ltd and others).

5. Shri Greeshm Jain, learned counsel for the respondent has also submitted and relied upon the reply filed by them saying that Clause 9.3.3 of National Coal Wage Agreement is applicable all over in Coal India and its subsidiaries. He submits a joint bipartite agreement has been executed between the CIL Management and Four Central Trade Unions. He submits that JBCCI is also a necessary party which has played important role in formulating the National Coal Wage Agreement (NCWA) and therefore without impleading it as a party, the writ petition is liable to be dismissed as the same suffers from non-joinder of necessary party. It is also stated by the respondents that the deceased employee left behind him two daughters and a son and as per NCWA if son is available then he gets priority over any other dependent and therefore married daughter (petitioner) was rightly denied the compassionate appointment. The fact regarding the dependency of the present petitioner with the parents was also denied. It is stated by learned counsel for the respondent that grant of compassionate appointment is not an additional method of providing the employment violating Article 14 of the Constitution of India but this is provided with an object to provide social security to the bereaved family. He submits that there is no infirmity and illegality in Clause 9.3.3 of NCWA and therefore the same cannot be declared illegal.

6. After considering rival contentions of learned counsel for parties and also considering the view taken by Full Bench in W.A.No.756/2019, I am of the opinion that Clause 9.3.3 of NCWA runs contrary to Articles 14,15,16 Signature Not Verified and 39(a) of Constitution of India. Taking note of various judgments of SAN Digitally signed by SMT SUSHMA KUSHWAHA Date: 2020.11.24 12:47:33 IST 3 WP-13651-2016 Supreme Court, this Court in W.A.No.756/2019 in paras 13,17,18 and 19 has observed as under :-

The common string in the aforesaid judgments of various High Courts is clear like a cloudless sky that the action/clauses of the policy which deprives married daughter from right of consideration for compassionate appointment runs contrary to Articles 14, 15, 16 and 39(a) of the Constitution. We concur with the above view taken by various High Courts.

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 the UNO on 18-12-1979. The Government of India who was an active participant to CEDAW ratified it on 19-6- Signature Not Verified SAN 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 Digitally signed by SMT SUSHMA KUSHWAHA Date: 2020.11.24 12:47:33 IST 4 WP-13651-2016 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 WA No.756/2019 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 WA No.756/2019 Rights Act, 1993. Section 2(d) defines human rights to mean Âœthe 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 Signature Not Verified Development became integral parts of the Indian Constitution SAN and the Human Rights Act and became enforceable. Section 12 Digitally signed by SMT SUSHMA KUSHWAHA Date: 2020.11.24 12:47:33 IST 5 WP-13651-2016 of Protection of Human Rights Act charges theCommission 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-a-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 Digitally signed by SMT SUSHMA KUSHWAHA Date: 2020.11.24 12:47:33 IST 6 WP-13651-2016 and;therefore, arbitrary and discriminatory in nature.

7 . In view of above, now it is crystal clear that clause under which claim of the petitioner has been considered and denied on the ground that the petitioner is a married daughter and is not entitled to be appointed on compassionate basis is without any justification and the same is contrary to law laid down by Full Bench of this Court in case of Meenakshi Dubey (supra).

8. Merely, because one of the parties to the agreement formed NCWA is not made party, the petition cannot be dismissed on the ground of non-joinder of necessary party because the clause which is part of office order and has come in the way of the petitioner to grant her compassionate appointment is under challenge. The validity of said clause is to be considered. Authority which has passed the order taking protection respective clause is very much before this Court. Thus, the stand taken by the counsel for the respondents as petition suffers from non-joinder of necessary party is without any substance and rejected as such. The order impugned therefore is not sustainable in law and merely because petitioner is a married daughter, cannot be denied the claim of compassionate appointment in view of Clause 9.3.3 of NCWA or policy of the respondent under which claim of compassionate appointment of dependent of the deceased employee is considered.

9. Accordingly, petition is allowed. Impugned order dated 18/05/2016 (Annexure-P-5) is set aside. Clause 9.3.3 of Annexure-P-4 is declared to be unreasonable, unjustified and contrary to the view taken by the Full Bench in case of Meenakshi Dubey (supra), which would not come in way of the petitioner for granting her compassionate appointment. The respondent-department is therefore directed to consider the claim of the Signature Not Verified SAN petitioner afresh for grant of compassionate appointment ignoring the fact that Digitally signed by SMT SUSHMA KUSHWAHA Date: 2020.11.24 12:47:33 IST 7 WP-13651-2016 in view of Clause 9.3.3 of policy she is not entitled to get compassionate appointment only because she being a married daughter. The aforesaid exercise be completed by the authority within a period of three months from the date of receipt of certified copy of this order and pass order accordingly. In view of the aforesaid facts and circumstances there shall be no order as to costs.

(SANJAY DWIVEDI) JUDGE S /-