Central Administrative Tribunal - Allahabad
Smt Chandrama Devi vs General Manager, N E Rly on 3 February, 2023
O.A. No.1521/2013
(Open court)
Central Administrative Tribunal, Allahabad Bench
Allahabad
Original Application No. 1521/2013
Pronounced on 3rd day of February, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
1. Smt. Chandrama Devi about 60 years w/o late Shyam Deo
ex-Khalasi/Binding Section, Railway Printing Press & Stationery,
N.E. Railway, Gorakhpur Moh- C/o Sri Ram Jatepur, Uttari Kali
Mandir Ke Pichhe, P.O. Gorakhnath, Dist- Gorakhpur.
2. Kumari Radhika aged about 27 years dependent divorce
daughter of late Shyam Deo r/o Moh- c/o Sri Ram Jatepur, Uttari
Kali Mandir Ke Pichhe, P.O. Gorakhnath, District- Gorakhpur.
Applicants
By Advocate: Sri Anand Kumar
Versus
1. Union of India through General Manager, North Eastern
Railway, Headquarters Office, Gorakhpur.
2. General Manager, North Eastern Railway, Headquarters
Office, Gorakhpur.
3. Chief Personnel Officer/ GM (P) North Eastern Railway,
GM Office, Gorakhpur.
4. Senior Manager, Printing and Stationery , N.E. Railway,
Gorakhpur.
5. Secretary (Estt) Ministry of Railways (Railway Bhawan),
New Delhi.
Respondent
By Advocate: Sri Bablu Singh
ORDER
Hon'ble Mr. Justice Om Prakash VII, Member (J) The present O.A. has been filed under Section 19 of the AT Act, with the prayer for quashing and setting aside the impugned order dated 6.8.2013 passed by the General Manager (P) , North Eastern Railway, Gorakhpur (Annexure No.A-1 to the O.A.) and direct the respondent No. 2 i.e. General Manager, North Eastern Railway, Headquarter, Gorakhpur to consider the compassionate appointment of divorce daughter of applicant No. 1 named Kumari Radhika (applicant No.2) sympathetically in Group C category in view of her educational qualifications.
2. The brief facts giving rise to this O.A. are that applicant no. 1 is the widow and applicant No. 2 is the daughter of late Shyam Page 1 of 6 O.A. No.1521/2013 Deo, who was Khalasi in N.E. Railway, Gorakhpur, died on 20.7.2007. in harness leaving behind widow and divorced (married) daughter Km. Radhika. Her two married daughters are living with their husbands. Applicant No.1 applied for compassionate ground to her divorced daughter Km.Radhika (applicant No.2) on 21.11.2007. On 8.8.2008, applicant No. 1 submitted application on prescribed format to Senior Manager, Printing and Stationery, N..E. Railway, Gorakhpur. In pursuance of letter dated 20.11.2008 of the department, applicant no. 1 submitted the copy of the order passed by the Civil Judge (SD) Mau dated 26.5.2008 of divorce case No. 256/2007. Applicant No. 1 also submitted the certificate of divorce decree granted by the Civil Court/ Mau , obtained from court vide letter dated 11.6.2011. Vide letter dated 6.8.2013, it was informed to applicant No. 1 that in reference to representation dated 23.8.2012 and 9.7.2013, in which it was stated that divorce of Kumari Radhika was done after death of employee late Shyam Deo. Since Radhika was married at the time of death so no appointment on compassionate ground is admissible.
3. Learned counsel for respondents filed counter affidavit stating therein that applicant No. 2 Radhika was married and divorce was taken after the death of deceased employee. It is further stated that applicant submitted the copy of the decision in the divorce suit No. 256 of 2007 thereafter, the General Manager (P) Gorakhpur vide letter dated 6.8.2013 informed the applicant that since divorce of applicant No. 2 taken place after the death of deceased employee, as such she is not liable to be given compassionate appointment. In addition to that it is also stated that applicant is getting family pension of Rs. 4435 + D.A. of Rs. 3976 = Rs. 8411 per month, which is quite sufficient for the maintenance of the applicants. It is also stated that applicant has also received retiral dues of the deceased employee.
4. Heard the learned counsel for the parties.
5. Learned counsel for applicant argued that employee concerned was died on 20.7.2007. Widow of the employee concerned moved application for compassionate appointment of her married daughter on 21.11.2007 itself but the department concerned-respondents- rejected the prayer vide impugned order observing that the daughter of the widow was married at the date of death of deceased employee and divorce took place after the death of deceased employee. Referring to the aforesaid facts, it was further argued that law has changed. Even married daughter is Page 2 of 6 O.A. No.1521/2013 entitled for compassionate appointment. To substantiate his argument, learned counsel for the applicant has placed reliance upon the following case laws:-
i) Km. Ruby Mausoof Vs. State of U.P. and others 2016 All CJ, 2165.
ii) Noopur Srivastava Vs. State of U.P. and others 2018 (110 ADJ 372 (LB)
3. Smt. Vimila Srivastava Vs. State of U.P. and others Writ C No. 60881 of 2015 decided on 4.12.2015
6. Learned counsel for respondents argued that since divorce took place after the death of the deceased employee, therefore, she cannot be considered for compassionate appointment. To substantiate his argument, learned counsel for respondents referred to the counter affidavit. He further argued that prayer made in the O.A. is not liable to be allowed. It is further argued that applicant was not dependent on the income of the deceased employee. Hence, on this ground, she is also not entitled for compassionate appointment.
7. I have considered the rival submissions of parties and have gone through the entire record.
8. I am unable to accept the contention raised by learned counsel for the respondents. From the pleadings and the arguments before me, the only dispute between the parties is regarding the status of the married daughter and whether she is entitled to get compassionate appointment after the death of her parents. This problem was clearly raised and resolved vide a judgment of the Allahabad High Court in Vimla Srivastava Vs State of U.P. and others (supra). The only relevant question before the Court was whether the married daughter is entitled for appointment on compassionate ground or not. The Court held as under:-
"...10. While assessing the rival submissions, it must be noted at the outset that the definition of the expression "family" in Rule 2 (c) incorporates the categories of heirs of a deceased government servant. Among them are the wife or husband, sons and adopted sons, unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law. Clause (ii) of Rule 2 (c) brings a son as well as an adopted son within the purview of the expression "family" irrespective of marital status. A son who is married continues to be within the ambit of the expression "family" for the purpose of Rule 2 (c). But by the stroke of a legislative definition, a daughter who is married is excluded from the scope and Page 3 of 6 O.A. No.1521/2013 purview of the family of a deceased government servant unless she falls within the category of a widowed daughter. The invidious discrimination that is inherent in Rule 2 (c) lies in the fact that a daughter by reason of her marriage is excluded from the ambit of the expression "family". Her exclusion operates by reason of marriage and, whether or not she was at the time of the death of the deceased government servant dependent on him. Marriage does not exclude a son from the ambit of the expression "family". But marriage excludes a daughter. This is invidious. A married daughter who has separated after marriage and may have been dependent on the deceased would as a result of this discrimination stand excluded. A divorced daughter would similarly stand excluded. Even if she is dependent on her father, she would not be eligible for compassionate appointment only because of the fact that she is not "unmarried".
The only basis of the exclusion is marriage and but for her marriage, a daughter would not be excluded from the definition of the expression "family".
11. The issue before the Court is whether marriage is a social circumstance which is relevant in defining the ambit of the expression "family" and whether the fact that a daughter is married can constitutionally be a permissible ground to deny her the benefit of compassionate appointment. The matter can be looked at from a variety of perspectives. Implicit in the definition which has been adopted by the state in Rule 2 (c) is an assumption that while a son continues to be a member of the family and that upon marriage, he does not cease to be a part of the family of his father, a daughter upon marriage ceases to be a part of the family of her father. It is discriminatory and constitutionally impermissible for the State to make that assumption and to use marriage as a rationale for practicing an act of hostile discrimination by denying benefits to a daughter when equivalent benefits are granted to a son in terms of compassionate appointment. Marriage does not determine the continuance of the relationship of a child, whether a son or a daughter, with the parents. A son continues to be a son both before and after marriage. A daughter continues to be a daughter. This relationship is not effaced either in fact or in law upon marriage. 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 or defined by marital status. The State has based its defence in its reply and the foundation of the exclusion on a paternalistic notion of the role and status of a woman. These patriarchal notions must answer the test of the guarantee of equality under Article 14 and must be held answerable to the recognition of gender identity under Article 15.
12. The stand which has been taken by the state in the counter affidavit proceeds on a paternalistic notion Page 4 of 6 O.A. No.1521/2013 of the position of a woman in our society and particularly of the position of a daughter after marriage. The affidavit postulates that after marriage, a daughter becomes a member of the family of her husband and the responsibility for her maintenance solely lies upon her husband. The second basis which has been indicated in the affidavit is that in Hindu Law, a married daughter cannot be considered as dependent of her father or a dependent of a joint Hindu family. The assumption that after marriage, a daughter cannot be said to be a member of the family of her father or that she ceases to be dependent on her father irrespective of social circumstances cannot be countenanced. Our society is governed by constitutional principles. Marriage cannot be regarded as a justifiable ground to define and exclude from who constitutes a member of the family when the state has adopted a social welfare policy which is grounded on dependency. The test in matters of compassionate appointment is a test of dependency within defined relationships. There are situations where a son of the deceased government servant may not be in need of compassionate appointment because the economic and financial position of the family of the deceased are not such as to require the grant of compassionate appointment on a preferential basis. But the dependency or a lack of dependency is a matter which is not determined a priori on the basis of whether or not the son is married. Similarly, whether or not a daughter of a deceased should be granted compassionate appointment has to be defined with reference to whether, on a consideration of all relevant facts and circumstances, she was dependent on the deceased government servant. Excluding daughters purely on the ground of marriage would constitute an impermissible discrimination and be violative of Articles 14 and 15 of the Constitution. "
12. The Division Bench of the Allahabad High Court relying upon the various judgements in this regard finally held that:-
".....26. In any case it shuts out the consideration of the claim of the married daughter without any enquiry on the issue of dependency. In the view that we have taken we are unable to accept or affirm the reasoning of the learned Single Judge and are constrained to hold that Mudita does not lay down the correct position of the law.
In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution.
27. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.
28. In consequence, we direct that the claim of the petitioners for compassionate appointment shall be Page 5 of 6 O.A. No.1521/2013 reconsidered. We clarify that the competent authority would be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioners shall not be excluded from consideration only on the ground of their marital status. ...."
13. Learned counsel for the respondents has failed to bring any other judgement to contradict the stand taken by the Division Bench of the Allahabad High Court. Thus, in view of above, it is clear that married daughter is entitled for compassionate appointment after the death of her parents if she was dependent on the income of deceased employee at the time of his death and penury condition of the family continued.
14. After considering the judgment of the Hon'ble High Court, court is of the view that the married daughters are also entitled for compassionate appointment after the death of her parents.
15. Hence, on the basis of above observation, the O.A. is allowed. Order dated 6.8.2013 is quashed. The matter is sent back to the respondents for reconsideration for appointment of the applicant No. 2 on the compassionate ground after the death of her father. This exercise shall be completed within a period of 03 months from the date of receipt of certified copy of this order.
16. There shall be no costs.
(Justice Om Prakash-VII) Member (J) HLS/-
Page 6 of 6