Rajasthan High Court - Jodhpur
Smt. Shobha Devi vs Jvvnl Jodhpur And Anr on 12 January, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11993/2017
Smt. Shobha Devi D/o Shri Ganpat Singh Chouhan, By Caste
Rajput Hajuri, Resident Of Mainpura, Gandhi Chowk, Jaisalmer
District Jaisalmer Raj..
----Petitioner
Versus
1. Jodhpur Vidhyut Vitran Nigam Limited, Jodhpur Through
Its Chairman Cum Managing Director.
2. The Secretary Admn., Jodhpur Vidhyut Vitran Nigam
Limited, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Trilok Joshi on VC
For Respondent(s) : Mr. Pankaj Sharma, AAG on VC
Mr. Kuldeep Mathur a/w Mr. DS Sodha
on VC
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reportable
12/01/2022
1. In wake of instant surge in COVID-19 cases and spread of its
highly infectious Omicron variant, lawyers have been advised to
refrain from coming to the Courts.
2. The petitioner has preferred this writ petition claiming the
following reliefs:-
"A). By an appropriate writ, order or direction, the order
impugned dated 06.06.2017 (Annex.10) may kindly be
declared illegal and the same may kindly be quashed and set
aside.
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B). By an appropriate writ, order or direction, the
respondents may kindly be directed to reconsider the case of
the petitioner for grant of appointment on compassionate
ground and offer her appointment as per her qualification.
C). Any other appropriate relief which this Hon'ble High
Court deems just and proper may kindly be granted in
favour of the petitioner."
3. Learned counsel for the petitioner submits that the father of
the petitioner, who was working as Lineman in the Jodhpur
Vidhyut Vitran Nigam Limited, died while in service on 05.11.2016
leaving behind his wife Smt. Shanti Devi and daughter (the
present petitioner). Learned counsel further submits that the wife
of the deceased employee was suffering from serious medical
ailments and thus, the present petitioner, who is a married
daughter of the deceased employee, made efforts for the
compassionate appointment by submitting an application seeking
compassionate appointment, and though the same was being
processed, but subsequently, the said application for
compassionate appointment of the present petitioner (married
daughter of the deceased employee) was rejected vide order
dated 06.06.2017 by the concerned authority, holding that as per
Jodhpur Vidhyut Vitran Nigam Limited Compassionate
Appointment of Dependents of Deceased Nigam Servants
Regulation, 2016 (hereinafter to referred as 'Regulation of 2016'),
a married daughter of deceased employee would not fall within the
category of the 'dependents'. Learned counsel also submits that
against the said order, the petitioner immediately preferred this
writ petition on 15.09.2017 and notices were issued and reply has
been filed.
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4. Learned counsel for the petitioner has drawn attention of this
Court to the notification dated 28.10.2021 whereby the
Government of Rajasthan, Department of Personnel, has amended
the Rajasthan Compassionate Appointment of Dependents of
Deceased Government Servant Rules 1996; in the definition of
'Dependents' in Rule 2, a provision was inserted that 'dependent'
will include a married daughter, if no other dependent of the
deceased Government Service mentioned in Clauses (i), (ii) and
(iii) is available. The said notification dated 28.10.2021 reads as
follows:-
""2. Amendment of rule 2.- the existing clause (c) of
rule 2 of the Rajasthan Compassionate Appointment of
Dependents of Deceased Government Servant Rules
1966 shall be substituted by the following, namely :-
(c) "Dependent" means,-
(i) Spouse, or
(ii) son including son legally adopted by the deceased
Government servant during his/her life time, or
(iii) unmarried/widowed/divorced daughter including
daughter legally adopted by the deceased Government
servant during his/her life time, or
(iv) married daughter, if no other dependent of the
deceased Government servant mentioned in clause (ii)
and (iii) above is available, or
(v) mother, father, unmarried brother or unmarried
sister in case of unmarried deceased Government
servant,
who was wholly dependent on the deceased
Government servant at the time of his/her death. "
5. Learned counsel for the petitioner further submits that the
petitioner is a married daughter of the deceased employee and in
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the present case, as per Clause (iv) of Rule 2(c) and as per the
clear interpretation of the Rules of 1996, as notified and quoted
above, the petitioner is entitled to be given the compassionate
appointment.
6. Learned counsel for the petitioner has relied upon the
judgment of Bhuvaneshwari V Puranik Vs. State of
Karnataka & Ors. in writ petition No.17788 of 2018 (S-
RES); the relevant portion of the judgment of the Hon'ble
Karnataka High Court reads as follows:-
"Half the world; and not even half the chance"
is the cry of the petitioner in this petition on being denied
consideration for appointment on compassionate ground
on the death of her father on the score that she is "a
married daughter"
9. In furtherance of the aforesaid submissions, the point
that arises for my consideration is:
"Whether Rule 2(1)(a)(i), Rule 2(1)(b) and Rule
3(2)(i)(c) of the Karnataka Civil Services
(Appointment on Compassionate Grounds) Rules,
1996 are ultravires the Constitution for it offends
Article 14 of the Constitution of India?"
10. OBJECT OF COMPASSIONATE APPOINTMENT:
10.1. It is by now a well settled principle that object of
compassionate appointment is to help the family tied over
the crisis that befalls them on the death of the sole
breadwinner of the family. It is given, in a given
circumstance, so that the family will not be put to
jeopardy by being driven to impecuniosities and
condemned by penury. It is for this reason the emphasis
on appointment on compassionate grounds is immediacy
of appointment.
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This is the principle that is laid down in plethora of
judgments of the Apex Court interpreting the need,
benefit and its limitations right from the judgment of the
Apex Court in the case of Umesh Kumar Nagpal Vs.
State of Haryana reported in (1994) 4 SCC 138
wherein the Apex Court has held as follows:
2. The question relates to the considerations which
should guide while giving appointment in public
services on compassionate ground. It appears that
there has been a good deal of obfuscation on the
issue. As a rule, appointments in the public
services should be made strictly on the basis of
open invitation of applications and merit. No other
mode of appointment nor any other consideration
is permissible. Neither the Governments nor the
public authorities are at liberty to follow any other
procedure or relax the qualifications laid down by
the rules for the post. However, to this general
rule which is to be followed strictly in every case,
there are some exceptions carved out in the
interests of justice and to meet certain
contingencies. One such exception is in favour of
the dependants of an employee dying in harness
and leaving his family in penury and without any
means of livelihood. In such cases, out of pure
humanitarian consideration taking into
consideration the fact that unless some source of
livelihood is provided, the family would not be able
to make both ends meet, a provision is made in
the rules to provide gainful employment to one of
the dependants of the deceased who may be
eligible for such employment. The whole object
of granting compassionate employment is
thus to enable the family to tide over the
sudden crisis. The object is not to give a
member of such family a post much less a
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post for post held by the deceased. What is
further, mere death of an employee in
harness does not entitle his family to such
source of livelihood. The Government or the
public authority concerned has to examine
the financial condition of the family of the
deceased, and it is only if it is satisfied, that
but for the provision of employment, the
family will not be able to meet the crisis that
a job is to be offered to the eligible member
of the family. The posts in Classes III and IV are
the lowest posts in non-manual and manual
categories and hence they alone can be offered on
compassionate grounds, the object being to
relieve the family, of the financial destitution and
to help it get over the emergency. The provision of
employment in such lowest posts by making an
exception to the rule is justifiable and valid since it
is not discriminatory. The favourable treatment
given to such dependant of the deceased
employee in such posts has a rational nexus with
the object sought to be achieved, viz., relief
against destitution. No other posts are expected or
required to be given by the public authorities for
the purpose. It must be remembered in this
connection that as against the destitute family of
the deceased there are millions of other families
which are equally, if not more destitute. The
exception to the rule made in favour of the family
of the deceased employee is in consideration of
the services rendered by him and the legitimate
expectations, and the change in the status and
affairs, of the family engendered by the erstwhile
employment which are suddenly upturned.
The aforesaid enunciation of law with regard to
compassionate appointment is reiterated by the Apex
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Court in line of judgments up to this date. Thus, the law
with regard to compassionate appointment is by now too
well settled that it is not a matter of right and not an
alternate source of recruitment.
11. RULES GOVERNING COMPASSIONATE
APPOINTMENT:
11.1. In the light of the question that has arisen for my
consideration, the Karnataka Civil Services (Appointment
on Compassionate Grounds) Rules, 1996 which governs
the appointment on compassionate grounds to the
Government servants in the State of Karnataka is
required to be noticed and is extracted hereunder for the
purpose of ready reference.
"2. Definitions :- (1) In these rules, unless the
context otherwise requires.-
[(a) "Dependent of the deceased Government
servant" means.-
(i) in the case of deceased male Government
servant, his widow, son [unmarried daughter
and widowed daughter] who were dependent
upon him and were living with him; and
(ii) in the case of a deceased female Government servant,
her widower, son [unmarried daughter and widowed
daughter] who were dependent upon her and were living
with her.]
(iii) in the case of deceased male unmarried Government
Servant, his unmarried brother, unmarried or widowed
sister who were dependent upon him and were living with
him; and
(iv) in the case of deceased female unmarried
Government Servant, her unmarried brother, unmarried
or widowed sister who were dependent upon her and
were living with her]
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(b) "Family" in relation to a deceased
Government servant means his or her spouse
and their son [unmarried daughter and widowed
daughter], [unmarried brother, unmarried or
widowed sister] who were living with him.
(2) Words and expressions used but not defined shall
have the same meaning assigned to them in the
Karnataka Civil Services (General Recruitment) Rules,
1977.
3. Eligibility for appointment :- (1) Appointment on
compassionate grounds under these rules shall not be
claimed as a matter of right and shall not be given as a
matter of course.
(2) Appointment under these rules shall be
restricted to the dependent of a deceased
Government servant in the following order of
preference, namely.-
[(i) in the case of the deceased male
Government servant.-
(a) the widow;
(b) a son, if widow is not eligible or for any valid reason
she is not willing to accept the appointment;
(c) an unmarried daughter, if the widow and son
are not eligible or for any valid reason they are
not willing to accept the appointment;
[(d) a widowed daughter, if the widow, son and
unmarried daughter are not eligible or for any valid
reason they are not willing to accept the appointment.]
[(i-a) in the case of the deceased male unmarried
Government Servant.-
(a) unmarried brother;
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(b) unmarried or widowed sister, who were dependent
upon him and were living with him.]
(ii) in the case of the deceased female Government
servant;
(a) a son;
(b) an unmarried daughter, if the son is not eligible or
for any valid reason he is not willing to accept the
appointment;
(c) the widower, if the son and daughter are not eligible
or for any valid reason they are not willing to accept the
appointment.]
(ii-a) in the case of the deceased female unmarried
Government Servant.-
(a) unmarried brother;
(b) unmarried or widowed sister, who were dependent
upon her and were living with her.]
(3) An adopted son or daughter of a deceased Government
servant shall not be eligible for appointment under these
rules.
[(4) A person against whom at the time of making
application a criminal case is under investigation or trial,
on the charge of having committed murder of the
deceased Government servant or for abetting the
commission of such offence shall not be eligible for
appointment under these rules.]"
It is the said Rules which declines appointment on
compassionate grounds to a daughter who is married
and restricts the consideration of appointment to an
unmarried daughter if the son is not eligible for any valid
reason or he is not willing to accept the appointment, that
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is called in question for it being violative Articles 14, 15
and 16 of the Constitution of India.
12. POSITION IN LAW:
12.1. Article 14 of the Constitution of India prohibits the
State from denying any person equality before the law or
equal protection of the laws. Article 16 is of application of
general Rule of equality as laid down in Article 14 with
special reference to opportunity for appointment and
employment under the State. Article 15(1) prohibits
discrimination on the ground of religion, race, caste, sex
or place of birth. It is an extension of Article 14, which
expresses application of principle of equality. Therefore,
no citizen shall be discriminated on the grounds of race,
caste, sex or place of birth religion. Article 16 takes its
root from Article 14 and ensures equality of opportunity
in matters of employment under the State. Therefore,
the fundamental right to equality means that persons in
like situations under like circumstances should be treated
alike.
12.2. Article 14 of the Constitution of India ensures
equality among equals and its main object is to protect
persons similarly placed against discriminatory treatment.
The equality before law guaranteed under Articles 14, 15
and 16 is a constitutional admonition against both the
legislative and executive organs of the State, neither the
legislature nor the Rule making authority can make a law
or a Rule which is violative of these articles.
12.3. The case of the petitioner and the issue raising a
challenge to the constitutional validity of the provision
relating to appointment on compassionate grounds will
have to be tested on the bedrock of the purport of the
aforesaid articles.
15.3. AUTHORITIES RELIED ON BY THE
RESPONDENT - STATE:
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(i) Indian Bank v. Promila reported in (2020) 2
SCC
4. It is trite to emphasise, based on numerous judicial
pronouncements of this Court, that compassionate
appointment is not an alternative to the normal course
of appointment, and that there is no inherent right to
seek compassionate appointment. The objective is only
to provide solace and succour to the family in difficult
times and, thus, the relevancy is at that stage of time
when the employee passes away.
20. We have to keep in mind the basic principles
applicable to the cases of compassionate employment
i.e. succour being provided at the stage of unfortunate
demise, coupled with compassionate employment not
being an alternate method of public employment. If
these factors are kept in mind, it would be noticed that
the respondents had the wherewithal at the relevant
stage of time, as per the norms, to deal with the
unfortunate situation which they were faced with. Thus,
looked under any Schemes, the respondents cannot
claim benefit, though, as clarified aforesaid, it is only the
relevant Scheme prevalent on the date of demise of the
employee, which could have been considered to be
applicable, in view of the judgment of this Court
in Canara Bank [Canara Bank v. M. Mahesh Kumar,
(2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539] . It is not
for the courts to substitute a Scheme or add or subtract
from the terms thereof in judicial review, as has been
recently emphasised by this Court inState of H.P. v.
Parkash Chand [State of H.P. v. Parkash Chand, (2019)
4 SCC 285 : (2019) 1 SCC (L&S) 621] .
21. We may have sympathy with the respondents about
the predicament they faced on the demise of Shri
Jagdish Raj, but then sympathy alone cannot give
remedy to the respondents, more so when the relevant
benefits available to the respondents have been granted
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by the appellant Bank and whenRespondent 1, herself,
was in employment having monthly income above the
benchmark.
(ii) State of H.P. v. Parkash Chand reported in
(2019) 4 SCC 285
10. In the exercise of judicial review under Article
226 of the Constitution, it was not open to the High
Court to rewrite the terms of the Policy. It is well settled
that compassionate appointment is not a matter of right,
but must be governed by the terms on which the State
lays down the policy of offering employment assistance
to a member of the family of a deceased government
employee.
[Umesh Kumar Nagpal v. State of Haryana [Umesh
Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 :
1994 SCC (L&S) 930] , SBI v. Kunti Tiwary [SBI v. Kunti
Tiwary, (2004) 7 SCC 271 : 2004 SCC (L&S)
943] , Punjab National Bank v. Ashwini Kumar Taneja
[Punjab National Bank v. Ashwini Kumar Taneja, (2004)
7 SCC 265 : 2004 SCC (L&S) 938] , SBI v. Somvir Singh
[SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007) 2 SCC
(L&S) 92] , Mumtaz Yunus Mulani v. State of
Maharashtra [Mumtaz Yunus Mulani v. State of
Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S)
1077] , Union of India v. Shashank Goswami [Union of
India v. Shashank Goswami, (2012) 11 SCC 307 :
(2013) 1 SCC (L&S) 51] , SBI v. Surya Narain Tripathi
[SBI v. Surya Narain Tripathi, (2014) 15 SCC 739 :
(2015) 3 SCC (L&S) 689] and Canara Bank v. M.
Mahesh Kumar [Canara Bank v. M. Mahesh Kumar,
(2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539] .]
(iii) State Bank of India v. Somvir
Singh reported in (2007) 4 SCC 778
7. Article 16(1) of the Constitution of India guarantees
to all its citizens equality of opportunity in matters
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relating to employment or appointment to any office
under the State. Article 16(2) protects citizens against
discrimination in respect of any employment or office
under the State on grounds only of religion, race, caste,
sex and descent. It is so well settled and needs no
restatement at our end that appointment on
compassionate grounds is an exception carved out to the
general rule that recruitment to public services is to be
made in a transparent and accountable manner
providing opportunity to all eligible persons to compete
and participate in the selection process. Such
appointments are required to be made on the basis of
open invitation of applications and merit. Dependants of
employees died in harness do not have any special or
additional claim to public services other than the one
conferred, if any, by the employer.
8. In Umesh Kumar Nagpal v. State of Haryana [(1994)
4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537]
this Court held: (SCC pp. 139-40, para 2) "As a rule,
appointments in the public services should be made
strictly on the basis of open invitation of applications and
merit. No other mode of appointment nor any other
consideration is permissible. Neither the Governments
nor the public authorities are at liberty to follow any
other procedure or relax the qualifications laid down by
the rules for the post. However, to this general rule
which is to be followed strictly in every case, there are
some exceptions carved out in the interests of justice
and to meet certain contingencies. One such exception is
in favour of the dependants of an employee dying in
harness and leaving his family in penury and without
any means of livelihood. In such cases, out of pure
humanitarian consideration taking into consideration the
fact that unless some source of livelihood is provided,
the family would not be able to make both ends meet, a
provision is made in the rules to provide gainful
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employment to one of the dependants of the deceased
who may be eligible for such employment. The whole
object of granting compassionate employment is thus to
enable the family to tide over the sudden crisis. The
object is not to give a member of such family a post
much less a post for post held by the deceased."
(emphasis added)
9. In Union Bank of India v. M.T. Latheesh [(2006) 7
SCC 350 : 2006 SCC (L&S) 1646] this Court while
dealing with the similar question observed that
indiscriminate grant of employment on compassionate
grounds would shut the door for employment to the
ever- growing population of unemployed youth.
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
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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 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".
16. For the praefatus reasons, I pass the following:
ORDER
(i) I allow the writ petition and hold that the exclusion of married daughters from the ambit of expression 'family' in Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 is illegal and unconstitutional being violative of Articles 14 and 15 of the Constitution.
(ii) I accordingly, strike down the word "unmarried" in Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996."
7. Learned counsel for the petitioner further relied upon the order passed by Hon'ble Apex Court in State of Karnataka & Ors. Vs. C.N. Apporva Shree & Anr. (Special Leave to Appeal (C) No.20166/2021) on 17.12.2021, which reads as follows:-
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"We have heard learned counsel for the
petitioner(s) and have analyzed the impugned judgment. We give our full imprimatur to the reasoning of the High Court, more so, as even the rule in question relied upon by the petitioner to deny a married daughter a job on compassionate grounds while permitting it to a married son, has been quashed in the judgment of the Karnataka High Court in Bhuvaneshwari V. Purani v. State of Karnataka - (2021) 1 AKR 444 [AIR Online 2020 Kar 2303].
The Special Leave Petition is dismissed.
Pending application stands disposed of "
8. Learned counsel for the petitioner also submits that the statutory rule prevailing in the State of Rajasthan shall bind the respondent-Nigam, as it normally regulated by prevailing State statute. Learned counsel further submits that the Regulations of 2016 are also bad in the eye of law in light of the judgment passed by the Hon'ble Apex Court and Hon'ble Karnataka High Court.
9. Learned counsel for the petitioner further submits that once the Hon'ble Apex Court has arrived at an analyzed position, while giving their full imprimatur to the reasoning of the Hon'ble Karnataka High Court and has sustained the quashing of the rule denying a married daughter a job on the compassionate ground, the mandate of the precedent law is binding on all parties.
10. Learned counsel for the petitioner has also relied upon the judgment rendered by this Hon'ble Court in the matter of Smt. Sonu Devi Vs. State of Rajasthan & Ors. (SBCWP (Downloaded on 18/01/2022 at 08:20:50 PM) (17 of 28) [CW-11993/2017] No.9022/2014) decided on 10.02.2017, the relevant portion of which reads as follows:-
"9. Accordingly, it is held that the petitioner who had applied as an unmarried daughter would be entitled to be appointed under the Rules 1996. If the submission of the counsel for the respondent is to be accepted then it would be a case where a dependant unmarried daughter even after appointment may not be allowed to get married, as the situation of a woman and her status may change, she cannot be deprived of her rightful claim under the Rules of 1996. The judgment passed by the Division Bench in the case of Seema (supra) is distinguishable as the same only relates to the case where a claimant was a married daughter at the time of death of the deceased Government Servant and she challenged Rule 2 (c) of the Rules of 1996. The Court has not accepted the said petition and has refused to even examined the validity of the Rule 2 (c) of the Rules of 1996. The same would, therefore, not applied to the facts and circumstances of the present case. The judgment passed by the Apex Court in the case of Canara Bank (Supra) gives a guideline for finding as to what should be the date. This Court respectfully agrees to the view and taking into consideration all the aspects, allow the writ petition."
11. Learned counsel for the respondent, however, submits that in para 5 of their reply, they have taken a stand regarding dismissal of claim of compassionate appointment of the petitioner and that remains the reasons for doing the same. The para 5 of the reply is reproduced hereunder:
"5. That the grant of compassionate appointment to the family member of the deceased Government Servant as per the rule is prevalent in the respondent Nigam.(Downloaded on 18/01/2022 at 08:20:50 PM)
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However, according to Rule 2(c) of 'JDVVNL
Compassionate Appointment Dependents of Deceased Nigam Servants, Regulations 2016' (hereinafter referred to as rules of 20165) the definition of 'Dependent' includes spouse, son, unmarred or widowed daughter, legally adopted son / unmarried daughter by the deceased Nigam servant during his / her lifetime and who was wholly dependent on the deceased Nigam's servant at the time his / her death. The definition of the Dependent nowhere mentions married daughter of the deceased Nigam servant for the purpose of giving compassionate appointment. Therefore, the petitioner being the married daughter of the deceased employee of the Nigam is not entitled to the benefits of compassionate appointment to the rules of 2016."
12. Learned counsel for the respondent has relied upon the order of this Hon'ble Court in case of Nakul Vs. State of Rajasthan & Ors. in D.B. Civil Writ Petition No.15912/2021, decided on 26.11.2021 wherein the question before the Court was whether the dependent of a deceased person should include an unmarried brother or unmarried sister, the relevant portion of the said order reads as follows:-
"There is nothing discriminatory in the nature of Rule itself. If the rule making authority at the relevant time provided within the purview of the definition of dependent a smaller class of members of the family of the deceased Government servant and excluded his/her brothers or sisters, the same per se so cannot be said to be discriminatory.
It may be that subsequently the Government on its own, upon deliberations, thought of expanding the definition. That by itself does not mean that the definition in the original form was arbitrary or discriminatory. The case of (Downloaded on 18/01/2022 at 08:20:50 PM) (19 of 28) [CW-11993/2017] the petitioner shall have to be governed by the provisions of the scheme for compassionate appointment contained in statutory Rules as they prevailed at the time of death of the Government servant. "
13. Learned counsel for the respondent also tried to impress upon the Court by contending that the Scheme, Regulations and Statute prevailing at the time of filing of the application ought to be taken into consideration.
14. Heard learned counsel for the parties as well as perused the record of the case alongwith the precedent laws cited above.
15. The Hon'ble Single Bench of this Court in Smt. Pinki Vs. State of Rajasthan & Ors. S.B. Civil Writ Petition No. 9177 of 2010 wherein the petitioner's father in law and husband had both passed away simultaneously, while in government service, applied the purposive rule of interpretation, while observing that, "if any difficulty arises in getting the purpose of the Rule served then to meet such exigencies, the Courts are having authority to adopt "purposive construction", which as a matter of fact is an extension or to say a dimension to the doctrine of the literal construction of a statute."
15.1 The Hon'ble Single Bench further observed that under Rule 5 of the Rules of 1996, the appointment of a dependent on the ground of compassionate appointment is conditional, and that the dependent shall properly maintain the other family members who were dependent on the deceased government servant, stated through the furnishing of an undertaking to the same effect. 15.2 The Hon'ble Single Bench also observed that under Rule 5 (1), the exclusion of "widowed daughter" "in quite unambiguous (Downloaded on 18/01/2022 at 08:20:50 PM) (20 of 28) [CW-11993/2017] terms depicts that the author of the Rules were aware about the fact that a "daughter - in - law", who also happens to be a "widowed daughter" is supposed to serve her in - laws, her children and also her parental family."
16. The Hon'ble Chattisgarh High Court, in Sarojni Bhoi Vs. State of Chattisgarh and Ors Writ Petition (S) No. 296 of 2014 held that the exclusion of a daughter / woman on the ground of her marriage is not a permissible classification and that the argument that she does not have an obligation to maintain her parents, because she has joined the household of her husband is invalid; and stated "a daughter even after marriage remains the daughter of her father and she cannot be treated as not belonging to her father's family." The Court further observed that, "the institution of marriage is an important and basic civil right of man and woman and marriage by itself is not a disqualification".
17. A Division Bench of the Hon'ble Allahabad High Court, in Vimla Srivastava and Ors. Vs. State of U.P. and Ors. Writ C
- Nos. 60881, 14853 and 20204 of 2015, observed that the purpose of appointment on the ground of compassionate appointment is "to provide ameliorative relief to the family of a government servant who has died in harness." 17.1 The Hon'ble Division Bench, in the said case, also observed that, "Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed by marital status ... Our society is governed by constitutional principles. Marriage cannot be regarded as a justifiable ground to define and exclude from who constitutes a (Downloaded on 18/01/2022 at 08:20:50 PM) (21 of 28) [CW-11993/2017] member of the fmaily when the state has adopted a social welfare policy grounded on dependency".
17.2 The Hon'ble Division Bench, also made succinct observations, while stating that, "The living tree - the Constitution - on which the law derives legitimacy is a liberal instrument for realising fundamental human freedoms. The law and the Constitution must account for multiple identities ... Marriage does not have and should not have a proximate nexus with identity"
18. The Hon'ble Supreme Court in Charu Khurana Vs. Union of India (2015) 1 SCC 192 observed, "It is clear as the cloudless sky that all practices derogatory to the dignity of the women are to be renounced."
19. The Hon'ble Single Bench of this Court, in Ms. Indira Bishnoi Vs. The State of Rajasthan & Ors. S.B. Civil Writ Petition No. 14502 of 2015 answered the question as to whether a divorced daughter would be entitled for appointment on compassionate grounds in the affirmative, stating, "when equal status has been given to daughter with sons there is no rational in treating a daughter differently only becuase of the term "Divorced". The term 'unmarried' 'widow' 'divorced' are only a nomenclature added to the term daughter".
20. The Hon'ble Special Bench of the Hon'ble Calcutta High Court in The State of West Bengal and Ors. Vs. Purnima Das and Ors. C.A.N. No. 12495 of 2014 in F.M.A. No. 1277 of 2015, WPST No. 447 of 2013 and WPST No. 78 of 2014 observed that there may be many probabilities in which a married daughter may be fully dependent upon the income of her father so that (Downloaded on 18/01/2022 at 08:20:50 PM) (22 of 28) [CW-11993/2017] death of the father would leave her and the rest of the members of the family in extreme economic hardship.
21. The Hon'ble Special Bench of the Hon'ble Uttarakhand High Court in Udham Singh Nagar District Cooperative Bank Ltd. and Ors. Vs. Anjula Singh and Ors. Special Appeal Nos. 187, 290, 723, 741 and 887 of 2017 observed, "If the criteria, for providing compassionate appointment, is dependence on the deceased Government servant, it is difficult to accept the submission that "dependant married sons" are the norm and "dependent married daughters" are the exception. On the contrary married sons, not dependent on their parents,may be the norm, and married sons, dependent on their parents, the exception".
21.1 The Hon'ble Court further observed that daughters, whether married, have been included in the coparcenary, with rights akin to a son, and are being treated at par with respect to the responsibility to take care of their parents in old age under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007; then there exists no reason to discriminate between married daughter and married son with respect to appointment on the grounds of compassionate appointment.
22. This Court also observes that in RBF Rig Corpn. v. Commr. of Customs (Imports) (2011) 3 SCC 573, State of A.P. v. Golconda Linga Swamy (2004) 6 SCC 522 and L. Chandra Kumar v. Union of India), it was held 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, (Downloaded on 18/01/2022 at 08:20:50 PM) (23 of 28) [CW-11993/2017] 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).
23. This Court observes that the perception of the daughter, after marriage no longer being a part of her father's household and becoming an exclusive part of her husband's household, is an outdated view and mindset.
24. Other Statutes, namely the right to be included in the coparcenary of her father and the equal responsibility of maintenance of parents in old age as that of a son, regardless of marital status; place responsibilities on married daughter and married son, equally and this Court, sees no reason as to why a distinction must be made on the same ground when it comes to compassionate appointment of married daughters.
25. This Court further observes, that if a daughter was unmarried or single, she would be eligible to seek appointment on the ground of compassionate appointment; and if she was widowed or divorced, then too she would be eligible for the same; and that she then, must not be devoid of the same right, to seek compassionate appointment, only when she is married. The pre- marriage status of a daughter, of being single/unmarried and post marriage status of a daughter either divorced, widowed or single again renders her capable of seeking compassionate appointment. Only the exclusion of a daughter, during the period of marriage, for seeking compassionate appointment is arbitrary and unjust.
26. Under Article 14 of the Constitution of India, the discrimination between a married son and a married daughter, with regard to appointment on the ground of compassionate (Downloaded on 18/01/2022 at 08:20:50 PM) (24 of 28) [CW-11993/2017] appointment is not a reasonable classification and amounts to a treatment of equal persons in the eyes of law as unequal, and this is a gross violation of the fundamental right of equality of perons before the law.
27. Article 15 of the Constitution of India explicitly prohibits discrimination on the ground of sex. Further, under sub clause (3), the Constitution empowers the State to make special provisions for women and children; and the distinction between a married son and a married daughter, with regard to appointment on ground of compassionate appointment is, prime facie, not only violative of Article 15 of the Constitution of India, but goes against the interest of women.
28. Article 16, specifically under sub clause (2), of the Constitution of India prohibits discrimination, on certain grounds; one being sex, among citizens in the matters of public employment, and provides that an equal opportunity be afforded to all citizens in matters relating to employment or appointment to any office under the State.
29. This Court is thus of the firm opinion that the discrimination on the basis of gender, of married daughter seeking compassionate appointment, would violate Articles 14, 15 & 16 of the Constitution of India, and thus, the discrimination against a married daughter vis-a-vis married son, and against a married daughter vis-a-vis unmarried, divorced, widowed or single daughter has been held to be unacceptable and the concerned statutes were quashed and set aside by Hon'ble Karnataka High Court and affirmed by Hon'ble Apex Court. The Hon'ble Apex Court while analyzing the judgment has given full imprimatur to the (Downloaded on 18/01/2022 at 08:20:50 PM) (25 of 28) [CW-11993/2017] reasoning of the Hon'ble Karnataka High Court and thus, it is clear that the rule within expression of family/dependent has to include unmarried daughter at par with married daughter and married daughter at par with married son.
30. The submissions made by learned counsel for the respondent and judgment cited by him of Nakul (supra) would not apply in the present case, as admittedly their case was one where a married brother was being sought to be inserted in the definition of "dependent"; and as per the Rules of 1996, a married brother and a married sister are treated at par, and therefore it cannot be said to be violative of Article 14 of the Constitution of India, as was rightly observed by the Hon'ble Division Bench of this Court.
31. The law laid down by the Hon'ble Apex Court, in the matter of C.N. Apporva Shree (Supra), after fully analyzing the judgment of the Hon'ble Karnataka High Court in the matter of Smt. Bhuvaneshwari V. Puranik (Supra) granted its full imprimatur to the same. The position of law, therefore, stands settled, and the word 'unmarried' in the regulation does not withstand the judicial scrutiny made by the Hon'ble Karnataka High Court and the Hon'ble Apex Court.
32. The larger ramification of a law being struck down by the Hon'ble Courts is that it stands nullified in its stream of parallel legislation, and even if any analogous law or legislation having the same meaning is not directly mentioned, then also, if it is absolutely on the same terms, as that of the law having been struck down by the Hon'ble Apex Court, then such legislation will fall within the same purview.
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(26 of 28) [CW-11993/2017] 32.1 It is not necessary that all legal parameters on the same wavelength need to be mentioned while striking down a legislation, and what is to be seen is that the words and the exact spirit, if same, the verdict of the Hon'ble Apex Court is bound to have an impact of completely governing the field in question. 32.2 In this case also, for the purpose of the compassionate appointment, the definition of 'dependent' was same as in Smt. Bhuvaneshwari V. Puranik (Supra), and the legislation therein on the same pedestal, as that in the State of Rajasthan i.e. Rules of 1996, has been struck down, and thus, no separate striking down is required, and in the present case, the verdict of the Hon'ble Apex Court can be easily made applicable. 32.3 The Hon'ble Supreme Court of India in Behram Khurshed Pesikaka Vs. Respondent:The State of Bombay MANU/SC/065/1954 held, "...In this country once a law has been struck down as unconstitutional law by a Court, no notice can be taken of that law by any Court, and in every case an accused person need not start proving that the law is unconstitutional. The Court is not empowered to look at that part of the law which has been declared as void, and therefore there is no onus resting on the accused person to prove that the law that has already been declared unconstitutional is unconstitutional in that particular case as well. The Court has to take notice only of what the law of the land is, and convict the accused only if he contravenes the law of the land..."
33. This Court, therefore, observes that the Hon'ble Supreme Court in C.N. Apporva (supra), has declared the law, holding married daughter to be excluded from definition of 'dependent', as (Downloaded on 18/01/2022 at 08:20:50 PM) (27 of 28) [CW-11993/2017] a bad law, and under Article 141 of the Constitution of India, the law so declared by the Hon'ble Apex Court is the law of the land, and thus, the same is binding on all courts of the country. 33.1 An analogous rule existed in the Rules of 1996 before the amendment made by the Legislature of the State of Rajasthan on 28.10.2021. While this Court does not require to strike down the said provision of law, it sees no reason to deprive the petitioner of her right, especially in light of the Hon'ble Supreme Court's judgment and the subsequent amendment brought by the State Legislature.
34. This Court also derives strength from fact that the State Legislature, in its wisdom, has already brought the married daughter within the domain of the definition of dependent, and the respondents being a corporation of the State are bound to maintain the line and length of the State's Rules and Regulations.
35. The welfare legislation, in the considered opinion of the State Legislature of Rajasthan has, after recent amendment to the Rules of 1996, now includes "married daughter" in the definition of dependent in the Rules of 1996, and to give a full colour to the welfare legislation, it needs to be implemented on all pending issues, which have not attained finality. The present case comes within the perspective of pending issue because the order was passed on 06.06.2017 by the respondent authority and an immediate challenge to the same was given on 15.09.2017, and the matter is sub judice and alive since then.
36. This Court also takes a note of the fact that the Hon'ble Apex Court has already declared that any discrimination between unmarried and married daughter and married son and married (Downloaded on 18/01/2022 at 08:20:50 PM) (28 of 28) [CW-11993/2017] daughter would be in clear violation of Article 14 , Article 15 & Article 16 of the Constitution of India.
37. This Court taking into account that the Rules of 1996 are a welfare legislation, and the resounding mandate of the Hon'ble Apex Court declaring the law treating a married daughter, as a disqualified person, as a trite law, is not inclined to accept the proposition of the learned counsel for the respondent seeking rejection of the claim of compassionate appointment of the petitioner.
38. In light of the aforesaid observations, the present writ petition is allowed, the impugned order dated 06.06.2017 Annexure-10 is quashed and set aside and the respondents are directed to consider the petitioner being a married daughter to be within the purview of the definition of dependents, for compassionate appointment, as per the Regulations of 2016. The conclusion arrived at by this Court is in conformity with the verdict of the Hon'ble Apex Court as well as the current intention of the State Legislation.
39. Accordingly, the petitioner shall move fresh application and the respondent shall consider the same within a period of three months from today without cancelling the candidature of the petitioner on the ground of being the married daughter strictly in accordance with law. All pending applications stand disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI),J.
106-Sudheer/-
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