Compassionate Appointment Can't Be Denied To Daughter Solely On Ground Of Her Marriage During Pendency Of Claim: Orissa HC

A Division Bench of the Orissa High Court comprising Justice Krishna Shripad Dixit and Justice Chittaranjan Dash held that compassionate appointment cannot be denied to a daughter solely on ground of her marriage during pendency of claim, as such discrimination between married sons and married daughters violates the constitutional principles. Background Facts The deceased employee worked for over thirty years under the Chief Construction Engineer, Pateru Irrigation Project until his death. His daughter (petitioner) applied for compassionate appointment. The Engineer-in-Chief conveyed approval for her appointment in 2008 and 2009. The Additional Secretary to the Government granted formal approval in April 2010. However, the appointment was denied in June 2011 solely on the ground that the petitioner had married in 2006 after the claim was made. Aggrieved, she approached the Orissa Administrative Tribunal, which rejected her application. Hence, she filed a writ petition in the Orissa High Court. It was argued by the petitioner that married sons of deceased employees are granted appointment while married daughters are denied, which is discriminatory to Articles 14, 15 and 21 of the Constitution. On the other hand, it was contended by the State that the compassionate appointment is governed by the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, and the married daughter is covered under it. The petitioner was ineligible as she married in 2006. Therefore, she could not claim any right to appointment. Findings of the Court It was observed by the court that the petitioner made her claim for compassionate appointment in August 2000. However, it was denied on the ground of her marriage despite approvals from the Engineer-in-Chief and the Additional Secretary to the Government. The judgment in Sushma Gosain v. Union of India was relied upon wherein it was held by the Supreme Court that compassionate appointment claims should be treated urgently so that dependents of deceased employee will have something to fall back upon. It was observed that the 1990 Rules do not provide that a claimant who was eligible at the time of application, becomes ineligible by subsequent marriage. As per Lata Singh v. State of UP, right to marriage is an important facet of fundamental right to life & liberty guaranteed under Article 21 of the Constitution of India. Relying upon Dr. (Mrs.) Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, it was observed by the Court that a daughter does not cease to be a daughter after marriage, and her obligation to look after her dependent natal family also does not extinguish after marriage. It was observed that the definition of “family members” talks about unmarried daughters. If the Rule Maker intended subsequent marriage to operate as a disqualification, it would have been expressly provided. The denial of appointment to the married daughter was contrary to the Universal Declaration of Human Rights, CEDAW, and the Beijing Declaration. It was held that discrimination between married sons and married daughters in matters of compassionate appointment is contrary to the constitutional principles. In Keshavananda Bharti Judgment, it was observed by the Apex Court that: “No person shall, by marriage, acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried...” It was held in Bhuvaneshwari V Puranik vs State of Karnataka that marriage, being a facet of the fundamental right to life and liberty cannot be treated as a disability for daughters when it is not for sons. The same view was affirmed in C.N. Apporva Shree vs State of Karnataka. The Court also expressed its anguish at the mindlessness shown by the authorities. The petitioner's claim was approved by the Engineer-in-Chief and by the Additional Secretary, yet she was denied appointment. Consequently, the orders of the Tribunal and the office order denying appointment were quashed. A writ was issued to the respondents to grant compassionate appointment to the petitioner within eight weeks. With the aforesaid observations, the petition filed by the deceased employee's daughter for compassionate appointment was allowed by the Division Bench. Case Name : Mani Machha v. State of Odisha & Others Case No. : W.P.(C) No.32107 of 2011 Counsel for the Petitioner : Samarendra Pattanaik, B.R. Kar, P. Panda & J. Kar, Advocates Counsel for the Respondents : Suman Pattanayak, AGAClick Here To Read/Download Order

Compassionate Appointment Can't Be Denied To Daughter Solely On Ground Of Her Marriage During Pendency Of Claim: Orissa HC

Namdev Singh

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