The Uttarakhand High Court has held that grandchildren from a daughter of a freedom fighter cannot be denied the benefits of welfare schemes available to family of a freedom fighter.
Justice Sharad Kumar Sharma held that daughter, granddaughter or grandson born to a daughter of a freedom fighter cannot be discriminated against on the basis of gender.
The court said so while disposing of a batch of five similar petitions. In the leading petition, the petitioner had challenged the action of the State government in denying her the benefits available to the dependents of freedom fighter under the various schemes floated by Government of India and State Government as well under the Act called as "The Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighter and Ex-Servicemen) Act, 1993" solely because she happened to be the granddaughter (daughters' daughter) of the deceased freedom fighter and would not be covered in the definitions of family.
Advocate Tapan Singh, counsel for petitioner, argued that the petitioner, being daughters' daughter was a member of the family of deceased freedom fighter, irrespective of the fact that she got married to another person and that she should not be deprived from availing the benefit under the freedom fighter scheme on the ground of gender or her being married.
Singh also argued that when the grandson (i.e. son's son) of the freedom fighter is included under the definition of the dependants of the family of freedom fighter, the grandchildren from the daughter i.e. daughters daughter or son would also be entitled for the benefit under the scheme.
He relied on Allahabad High Court judgment in Isha Tyagi Vs. State of U.P. and others, where the question was raised on discrimination being created in relation to the daughter/son for the grant of compassionate appointment since being violative the Article 14 and 15 of the Constitution of India.
The Division Bench had in Isha Tyagi case held that married daughter would fall within the definition of the family and she would be entitled for grant of compassionate appointment.
The High court noted that the issue in Isha Tyagi case was followed by the Uttarakhand High Court in a Full Bench judgment, "wherein the ratio as laid down by Division Bench of Allahabad High Court has been affirmed and it was held that the married daughter, her son or daughter of an employee claiming appointment under Dying and Harness Rules cannot be discriminated on the basis of gender discrimination since being violative of Article 14 & 15 of the Constitution of India and ultimately it was held that they would be included in the definition of the family as contained therein under Section 2(c) of Dying and Harness Rules, 1974".
"This ratio as settled down by the Full Bench judgment would be applicable in relation to extension of benefit of the daughter, granddaughter or grandson of the freedom fighter as they cannot be discriminated on the basis of gender discrimination. Consequently, in accordance with The Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighter and Ex-Servicemen) Act, 1993," said Justice Sharma.
"This Court is of the view in the light of the ratio propounded by the Full Bench of this Court, the daughters' daughter i.e. granddaughter or daughter/son of freedom fighter would fall to be within the definition of the dependents as well as the family of the freedom fighter and cannot be discriminated on ground of gender hence would be covered by benefit to be extended to them under the Act and the scheme framed for the benefit of freedom fighter," he added.
The court directed the government to consider the claims raised by the petitioners under various schemes for the dependents of freedom fighters provided that there is no any other legal impediment.
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