'Clear Case Of Gender Bias': MP HC Declares Policy To Not Consider Sister / Married Daughter For Compassionate Appointment As Unconstitutional

The Madhya Pradesh High Court recently held that the policy of National Coal Wage Agreement (NCWA) to not consider sisters/ married daughters for compassionate appointment is a clear case of gender bias and is thus, unconstitutional. Justice S.A. Dharmadhikari was essentially dealing with a writ petition filed by the Petitioner who was aggrieved by the order passed by the Respondent company, whereby it had rejected her application for grant of compassionate appointment on the ground that she is a married daughter of the deceased."This Court fails to fathom as to why the sister should be deprived of such a benefit, whether married or unmarried. If it is treated that the sister is not included as a dependent under Clause 9.3.3 of NCWA then the same would amount to a clear case of gender bias which is against the spirit of Article 14, 15, 16 and 39 (a) of the Constitution of India." The case of the Petitioner was that her father (Abdul Latif) used to work for the respondent company and had died while being employed. Consequently, his elder son applied for his job on compassionate grounds. His application was accepted but unfortunately, even he died during his employment. It was then his younger brother who applied for the same job on compassionate grounds and was able to get the same. However, even he died while being employed under the Respondent company. Eventually, the wife of Abdul Latif made a representation to the Respondent company, requesting them to grant compassionate appointment to the only surviving child i.e., the Petitioner. However, the same was rejected on the ground that Clause 9.3.3 of the NCWA prohibits married daughters from the benefit of grant of compassionate appointment. Aggrieved by the same, she filed the instant writ petition challenging the impugned order and the provisions under Clause 9.3.3. The petitioner relied on the decision passed by the Full Bench of the Court in Minakshi Dubey v. M.P.P.K.V.V.C.L & Ors. where it was held that the policy of the Government prohibiting consideration of married daughter from compassionate appointment is violative of Article 14 of the Constitution.Reliance was also placed on a judgment passed by the Division Bench of the Jharkhand High Court in Madhubala Sinha v.. M/s Central Coalfields Ltd. & Ors. where it was held that non-inclusion of the parents and sister of the deceased workman dying in harness, in the list of dependants to be appointed on compassionate ground, is unjust and frustrates the very object the scheme for compassionate appointment. Per contra, the Respondent company argued that as per NCWA, if a son is available, then he gets priority over any other dependent. There is no provision of providing compassionate appointment to the married daughter/sister. Therefore, the Petitioner was rightly denied the compassionate appointment. It further stated that grant of compassionate appointment is not an additional method of providing employment and instead, it was formulated with an object to provide social security to the bereaved family. The Respondent Company therefore, concluded that there was no infirmity and illegality in Clause 9.3.3 of NCWA and hence, the same could not be declared illegal. Considering the arguments put forth by the parties, the Court opined that Clause 9.3.3 of NCWA ran contrary to Articles 14,15,16 and 39(a) of Constitution of India. It scrutinized the decision in the Madhubala case and observed- In view of above, now it is crystal clear that clause under which claim of the petitioner has been considered and denied on the ground that the petitioner is a sister and is not entitled to be appointed on compassionate basis is without any justification and the same is contrary to directions in the case of Madhubala Sinha (supra). As per the finding with regard to the sister is concerned, in Madhubala Sinha (supra), it is held that Clause 9.3.3 of NCWA, the brother of the petitioner died unmarried, if fully dependent upon him, is also entitled to be considered for appointment on compassionate ground. However, this Court fails to fathom as to why the sister should be deprived of such a benefit, whether married or unmarried. If it is treated that the sister is not included as a dependent under Clause 9.3.3 of NCWA then the same would amount to a clear case of gender bias which is against the spirit of Article 14, 15, 16 and 39 (a) of the Constitution of India. With aforesaid observations, the Court declared Clause 9.3.3 of NCWA to be unreasonable, unjustified and contrary to the view taken in Madhubala Sinha case and by the Full Bench of Meenakshi Dubey case, which would not come in way of the Petitioner for granting her compassionate appointment. Allowing the Petition, the Court directed the Respondent company to consider the claim of the Petitioner afresh for grant of compassionate appointment, ignoring the fact that in view of Clause 9.3.3 of ...

'Clear Case Of Gender Bias': MP HC Declares Policy To Not Consider Sister / Married Daughter For Compassionate Appointment As Unconstitutional

Zeeshan Thomas

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