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Chief Justice's Court AFR

Case :- WRIT - C No. - 60881 of 2015

Petitioner :- Smt. Vimla Srivastava

Respondent :- State Of U.P. And Another

Counsel for Petitioner :- Santosh Kumar Srivastava,Nitin Kumar

Rai,Pavan Kumar Singh

Counsel for Respondent :- C.S.C.

WITH

Case :- WRIT - C No. - 14853 of 2015

Petitioner :- Smt. Deepti

Respondent :- State Of U.P. And 2 Ors.

Counsel for Petitioner :- B. Narayan Singh

Counsel for Respondent :- C.S.C.

WITH

Case :- WRIT - C No. - 20204 of 2015

Petitioner :- Smt. Priyanka Srivastava

Respondent :- State Of U.P. & Another

Counsel for Petitioner :- Jeevan Jee Srivastava

Counsel for Respondent :- C.S.C.

****

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice

Hon'ble Yashwant Varma,J.

(Per: Dr D Y Chandrachud, CJ)

The Uttar Pradesh Recruitment of Dependents of Government

Servants Dying-in-Harness Rules, 1974

1

have been framed under

the proviso to Article 309 of the Constitution and regulate the grant

1Dying-in-Harness Rules

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2

of compassionate appointment to the members of the family of a

government servant who dies in harness. The Rules define the

expression “family” to include, among others, “unmarried daughters

and unmarried adopted daughters”. The Rules also bring sons and

adopted sons within the ambit of a family. The eligibility of a son or

adopted son is not conditioned by marital status. The challenge in

these proceedings is to the stipulation that only an unmarried

daughter falls within the definition of the expression “family”. As a

consequence of the condition, a married daughter ceases to fall

within the family of a deceased government servant for the purpose

of seeking compassionate appointment.

Rule 2 (c) of the Dying-in-Harness Rules defines the

expression “family” in the following terms:

“2(c) “family” shall include the following relations of the

deceased Government servant:

(i)Wife or husband;

(ii)Sons/adopted sons;

(iii)Unmarried daughters, unmarried adopted

daughters, widowed daughters and widowed daughters-

in-law;

(iv)Unmarried brothers, unmarried sisters and

widowed mother dependent on the deceased

Government servant, if the deceased Government

servant was unmarried;

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(v)aforementioned relations of such missing

Government servant who has been declared as "dead"

by the competent Court;

Provided that if a person belonging to any of the above

mentioned relations of the deceased Government servant is not

available or is found to be physically and mentally unfit and

thus ineligible for employment in Government service, then

only in such situation the word "family" shall also include the

grandsons and the unmarried granddaughters of the deceased

Government servant dependent on him."

In exploring the nature of the constitutional challenge which

has been addressed in these proceedings, it would at the outset be

necessary to dwell briefly on the nature and purpose of

compassionate appointment. The object and purpose of

compassionate appointment is to provide ameliorative relief to the

family of a government servant who has died in harness.

Compassionate appointment is an exception to the principle that

there must be an equality of opportunity in matters of public

employment under Article 16 of the Constitution. Equality of

opportunity postulates a level playing field where all eligible persons

are entitled to compete in an effort to secure public employment. The

basis of the exception that is carved out by the Dying-in-Harness

Rules is that the death of a wage earner while in the service of the

State imposes severe financial hardship on the family faced with an

untimely death. Compassionate appointment is intended to provide

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immediate financial support to such a family by stipulating that upon

the death of its wage earner while in harness as a government

servant, another member of the family would be granted

appointment. Compassionate appointment is not a reservation of a

post in public employment but is in the nature of an enabling

provision under which a member of the family of a deceased

government servant who has died while in harness can seek

appointment based on financial dependency and need.

Rule 5 of the Dying-in-Harness Rules provides that such an

appointment is contemplated to be given to a member of the family

of a deceased government servant who has died in harness where the

spouse of the government servant is not already employed with the

Central or the State Governments or a Corporation owned by them.

Moreover, a member of the family who is not already employed with

the Central or State Governments or their Corporations can be given

suitable employment in government service in relaxation of the

normal recruitment rules. Such an appointment can be granted if the

person (i) fulfills the educational qualifications prescribed for the

post; (ii) is otherwise qualified for government service; and (iii)

makes an application for employment within five years from the date

of the death of the government servant. The rationale for imposing

the requirement of the application being made within five years is

that the nexus between the grant of employment and the need of the

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family is preserved. That is because after a lapse of time the sense of

need or dependency may cease to exist both financially and

otherwise. However, Rule 5 enables the time limit to be dispensed

with or relaxed for the purpose of dealing with a case in a just and

equitable manner where undue hardship is shown. Where

compassionate appointment is provided under Rule 5, there is an

obligation under the rule for the person appointed to maintain the

other members of the family of the deceased government servant

who were dependent on him/her immediately before the death

occurred and who are unable to maintain themselves. When the

person appointed neglects or refuses to maintain a person whom he

or she is liable to maintain, the services are liable to be terminated

under the Conduct, Discipline and Appeal Rules.

The basic rationale and the foundation for granting

compassionate appointment is thus the financial need of the family

of a deceased government servant who has died in harness and it is

with a view to alleviate financial distress that compassionate

appointment is granted.

The submission which has been urged on behalf of the

petitioners in challenging Rule 2 (c) (iii), insofar as it confines the

zone of eligibility only to unmarried daughters, is two fold. Firstly, it

has been submitted that in matters of public employment, marital

status cannot disqualify an applicant and any discrimination on the

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ground of marital status would be violative of Articles 14 and 15 of

the Constitution. Secondly, it has been urged that there can be no

discrimination between a son and a daughter in the grant of

compassionate appointment and any discrimination on the ground of

gender violates Article 15 of the Constitution.

A counter affidavit has been filed on behalf of the State in

these proceedings in which, it has been asserted that:

“After marriage, the daughter becomes the family member of

her husband and the responsibility of her maintenance solely

lies upon her husband, therefore, in such circumstance there is

no justification of giving employment to the married daughter

of the deceased employee as the dependent of deceased

employee.

That, it is also relevant to mention here that the employment

as a dependent of deceased is a compassionate appointment

which is not a matter of right. It is further submitted that the

married daughter is not covered by definition of “family”,

therefore, she cannot be considered eligible for giving the

compassionate appointment. It is further submitted that under

the Hindu Law, a married daughter cannot be considered as

dependent of her father or dependent of joint Hindu family.

After the marriage, her husband is not only her guardian but

he is under legal obligation to maintain her. Under the Hindu

Law, after the marriage, the daughter even does not remain

member of the family of her father and she becomes member

of her in laws family.”

Moreover, it has been submitted that a married daughter is not

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considered as a dependent of her deceased father and is not legally

entitled to get compassionate appointment.

In support of the submissions which have been urged in the

counter affidavit, learned Standing Counsel submits that Rule 2 (c)

has made no discrimination on grounds of gender. The submission is

that the purpose of Rule 2 (c) is to enable the State to grant

compassionate appointment to a member of the family who was

dependent on the deceased government servant. When a daughter is

married, it is asserted, the element of dependency on the deceased

government servant ceases to exist and the reason for the exclusion is

not gender but the absence of dependency.

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

purview of the family of a deceased government servant unless she

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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”.

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

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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.

The stand which has been taken by the state in the counter

affidavit proceeds on a paternalistic notion of the position of a

woman in our society and particularly of the position of a daughter

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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

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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.

A variety of situations can be envisaged where the application

of the rule would be invidious and discriminatory. The deceased

government servant may have only surviving married daughters to

look after the widowed parent – father or mother. The daughters may

be the only persons to look after a family in distress after the death of

the bread earner. Yet, under the rule, no daughter can seek

compassionate appointment only because she is married. The family

of the deceased employee will not be able to tide over the financial

crisis from the untimely death of its wage earner who has died in

harness. The purpose and spirit underlying the grant of

compassionate appointment stands defeated. In a given situation,

even though the deceased government employee leaves behind a

surviving son, he may not in fact be looking after the welfare of the

surviving parents. Only a daughter may be the source of solace –

emotional and financial, in certain cases. These are not isolated

situations but social realities in India. A surviving son may have left

the village, town or state in search of employment in a metropolitan

city. The daughter may be the one to care for a surviving parent. Yet

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the rule deprives the daughter of compassionate appointment only

because she is married. Our law must evolve in a robust manner to

accommodate social contexts. The grant of compassionate

appointment is not just a social welfare benefit which is allowed to

the person who is granted employment. The purpose of the benefit is

to enable the family of a deceased government servant, who dies in

harness, to be supported by the grant of compassionate appointment

to a member of the family. Excluding a married daughter from the

ambit of the family may well defeat the object of the social welfare

benefit.

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. Individuals – men and women – have multiple identities :

as a worker in the work place; as a child, parent and spouse;

identities based on preferences and orientation; those based on

language, religion and culture. But from a constitutional perspective,

they are protected and subsumed in the overarching privileges of

citizenship and in the guarantee of individual freedoms.

In the judgment of this Court in Isha Tyagi vs. State of U.P.

2

,

a Division Bench considered the legality of a condition which was

imposed by the State Government while providing horizontal

2Writ – C No. 41279 of 2014

13

reservation to descendants of freedom fighters. The condition which

was imposed by the State excluded the children of the daughter of a

freedom fighter from seeking admission to medical colleges in the

State under an affirmative action programme. Holding this to be

unconstitutional, the Division Bench held as follows:

“It would be anachronistic to discriminate against married

daughters by confining the benefit of the horizontal

reservation in this case only to sons (and their sons) and to

unmarried daughters. If the marital status of a son does not

make any difference in law to his entitlement or to his

eligibility as a descendant, equally in our view, the marital

status of a daughter should in terms of constitutional values

make no difference. The notion that a married daughter ceases

to be a part of the family of her parents upon her marriage

must undergo a rethink in contemporary times. The law cannot

make an assumption that married sons alone continue to be

members of the family of their parents, and that a married

daughter ceases to be a member of the family of her parents.

Such an assumption is constitutionally impermissible because

it is an invidious basis to discriminate against married

daughters and their children. A benefit which this social

welfare measure grants to a son of a freedom fighter,

irrespective of marital status, cannot be denied to a married

daughter of a freedom fighter.”

Dealing with the aspect of marriage, the Division Bench held

as follows:

“Marriage does not have and should not have a proximate

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nexus with identity. The identity of a woman as a woman

continues to subsist even after and notwithstanding her marital

relationship. The time has, therefore, come for the Court to

affirmatively emphasise that it is not open to the State, if it has

to act in conformity with the fundamental principle of equality

which is embodied in Articles 14 and 15 of the Constitution, to

discriminate against married daughters by depriving them of

the benefit of a horizontal reservation, which is made available

to a son irrespective of his marital status.”

The principles underlying Articles 14 and 15 of the

Constitution have an important bearing on gender identity. In C.B.

Muthamma vs. Union of India

3

, the Supreme Court considered the

legality of a rule in the Indian Foreign Service (Conduct and

Discipline) Rules under which a woman member of the service was

required to obtain the permission of the Government before her

marriage was solemnized and could be required to resign from

service after her marriage, if the Government was satisfied that her

family and domestic commitments are likely to come in the way of

the due and efficient discharge of her duties as a member of the

service. The Supreme Court held that “If a married man has a right,

a married woman, other things being equal, stands on no worse

footing”. In the meantime the Central Government had indicated that

the rule was being reconsidered and its deletion was being gazetted.

3AIR 1979 SC 1868

15

In Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai

4

,

the Supreme Court held in the context of the provisions of Section

125 of the Code of Criminal Procedure 1973 that “a daughter after

her marriage does not cease to be a daughter of the father or mother”.

The same principle was applied in Githa Hariharan vs.

Reserve Bank of India

5

while defining the ambit of the expression

“the father, and after him, the mother” in Section 6(a) of the Hindu

Succession Act, 1956. The Supreme Court observed that if the word

'after' was read to mean that a mother would be disqualified from

acting as a guardian of a minor during the lifetime of the father, this

would run counter to the constitutional mandate of gender equality

and will lead to an impermissible differentiation between males and

females. Interpreting the word 'after', the Supreme Court held that it

does not necessarily mean after the death of the father but would

mean in the absence of, whether temporary or otherwise or in a

situation of the apathy of the father or his inability to maintain the

child.

In Savita Samvedi vs. Union of India

6

, the Supreme Court

considered the validity of a circular of the Railway Board by which a

railway servant who is an allottee of service accommodation was

entitled to nominate, while retiring from service, a son or unmarried

daughter among other persons for allotment of the accommodation

4AIR 1987 SC 1100

5(1999) 2 SCC 228

61996 2 SCC 380

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on out-of-turn basis. Holding that the circular (insofar as it precluded

the nomination of a married daughter for allotment of

accommodation) violated Article 14, the Supreme Court observed as

follows:

“... If he has only one married daughter, who is a railway

employee, and none of his other children are, then his choice is

and has to be limited to that railway employee married

daughter. He should be in an unfettered position to nominate

that daughter for regularization of railway accommodation. It

is only in the case of more than one children in Railway

service that he may have to exercise a choice and we see no

reason why the choice be not left with the retiring official's

judgment on the point and be not respected by the railway

authorities irrespective of the gender of the child. There is no

occasion for the railways to be regulating or bludgeoning the

choice in favour of the son when existing and able to maintain

his parents. The Railway Ministry's Circular in that regard

appears thus to us to be wholly unfair, gender biased and

unreasonable, liable to be struck down under Article 14 of the

Constitution. The eligibility of a married daughter must be

placed on a par with an unmarried daughter (for she must have

been once in that state), so as to claim the benefit of the earlier

part of the Circular, referred to in its first paragraph, above-

quoted.”

In Air India Cabin Crew Assn. vs. Yeshaswinee Merchant

7

,

the Supreme Court dealt with the prohibition under Article 15(2) on

discrimination on the ground only of sex. Interpreting the provisions

7(2003) 6 SCC 277

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of Articles 15 and 16, the Supreme Court held that the constitutional

mandate would be infringed where a woman would have received

the same treatment as a man but for her sex.

In National Legal Services Authority vs. Union of India

8

,

the Supreme Court recognized that gender identity, is an integral part

of sex within the meaning of Articles 15 and 16 and no citizen can be

discriminated on the ground of gender. The Supreme Court observed

as follows:

“We, therefore, conclude that discrimination on the basis of

sexual orientation or gender identity includes any

discrimination, exclusion, restriction or preference, which has

the effect of nullifying or transposing equality by the law or

the equal protection of laws guaranteed under our

Constitution, and hence we are inclined to give various

directions to safeguard the constitutional rights of the

members of the TG community.”

Specifically in the context of compassionate appointments

various High Courts have taken the view that a woman who is

married cannot be denied entry into service on compassionate

appointment merely on the ground of marriage. This view was taken

by a learned Single Judge of the Karnataka High Court in Manjula

vs. State of Karnataka

9

. The same view has been adopted by a

Division Bench of the Bombay High Court in Smt. Ranjana

8(2014) 5 SCC 438

92005 (104) FLR 271

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Murlidhar Anerao vs. The State of Maharashtra

10

where it was

held that the exclusion of a married daughter for the grant of a retail

kerosene license on the death of the license holder was not

justifiable. The Division Bench of the Bombay High Court held as

follows:

“This exclusion of a married daughter does not appear to be

based on any logic or other justifiable criteria. Marriage of a

daughter who is otherwise a legal representative of a license

holder cannot be held to her disadvantage in the matter of

seeking transfer of license in her name on the death of the

license holder. Under Article 19(1)(g) of the Constitution of

India the right of a citizen to carry on any trade or business is

preserved. Under Article 19(6) reasonable restrictions with

regard to professional or technical qualifications necessary for

carrying on any trade or business could be imposed. Similarly,

gender discrimination is prohibited by Article 15 of the

Constitution. The exclusion of a married daughter from the

purview of expression "family" in the Licensing Order of

1979 is not only violative of Article 15 but the same also

infringes the right guaranteed by Article 19(1)(g)

of the Constitution.”

The same view has been adopted by a learned Single Judge of

the Madras High Court in S Kavitha vs. The District Collector

11

. A

learned Single Judge of the Kolkata High Court in Purnima Das vs.

The State of West Bengal

12

has held that while appointment on

10Writ Petition No. 5592 of 2009, decided on 13 August 2014

11Writ Petition No. 16153 of 2015, decided on 9 June 2015

12Writ Petition No. 33967 (W) of 2013, decided on 19 March 2014

19

compassionate ground cannot be claimed as a matter of right, at the

same time, it was not open to the State to adopt a discriminatory

policy by excluding a married daughter from the ambit of

compassionate appointment.

We are in respectful agreement with the view which has been

expressed on the subject by diverse judgments of the High Courts to

which we have made reference above.

During the course of submissions, our attention was also

drawn to the judgment rendered by a learned Single Judge of this

Court in Mudita vs. State of U.P.

13

. The learned Single Judge while

proceeding to deal with an identical issue of the right of a married

daughter to be considered under the Dying-in-Harness Rules

observed that a married daughter is a part of the family of her

husband and could not therefore be expected to continue to provide

for the family of the deceased government servant. The judgment

proceeds on the premise that marriage severs all relationships that

the daughter may have had with her parents. 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.

13Writ Petition No. 49766 of 2015, decided on 10 September 2015

20

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.

We, accordingly, strike down the word 'unmarried' in Rule 2

(c) (iii) of the Dying-in-Harness Rules.

In consequence, we direct that the claim of the petitioners for

compassionate appointment shall be 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.

The writ petitions shall, accordingly, stand allowed. There

shall be no order as to costs.

Order Date :- 4.12.2015

RK

(Yashwant Varma, J) (Dr D Y Chandrachud, CJ)