14 Sep 2022 5:15 AM GMT
In a significant development, a 3-judge bench of the Rajasthan High Court has observed that the use of the word 'unmarried' in Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 depriving a married daughter from right of consideration for compassionate appointment, violates the equality clause and cannot be countenanced.Notably, the...
In a significant development, a 3-judge bench of the Rajasthan High Court has observed that the use of the word 'unmarried' in Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 depriving a married daughter from right of consideration for compassionate appointment, violates the equality clause and cannot be countenanced.
Notably, the Rule 2(c) which defines dependent, stands amended w.e.f. 28.10.2021, wherein the married daughter has also been included in the definition, subject to certain conditions.
In this regard, the bench noted that the government servants/employees in all the present cases have died in harness prior to the date of amendment in the provision, the cases of the applicants-petitioners would be governed by the unamended provisions. On account of the stipulation 'unmarried' daughter in the definition of dependent under the unamended provision, the applicants-petitioners have been rendered ineligible and thus, their challenge cannot be negated merely on account that the provision stands amended w.e.f. 28.10.2021.
While answering a reference made by the division bench, the 3-judge bench comprising Justice Sandeep Mehta, Justice Vijay Bishnoi and Justice Arun Bhansali, observed,
"The provision of Rule 2(c) of the Rules of 1996, which excludes the married daughter from definition of dependent prior to its amendment vide notification dated 28.10.2021, is discriminatory and violative of Articles 14 to 16 of the Constitution of India and as such, the word 'unmarried' from the definition of 'dependent', is struck down. Further, in Rule 5 of the Rules of 1996 also the word unmarried daughters/adopted unmarried daughter, shall be read as daughters/adopted daughter."
As a consequence, the the bench directed the following, on account of striking down of the word 'unmarried' from the definition –
(i) the same shall not effect any case, wherein compassionate appointment has already been granted under the provisions as they stood before this order;
(ii) the same by itself would not provide a cause of action to any applicant and would apply to cases which are either pending before the competent authority and/or to the cases where litigation is pending on the date of this order only;
(iii) the provisions and other requirements of the definition regarding the applicant being wholly dependent on the deceased government servant at the time of his/her death would be scrupulously applied;
(iv) all the parameters as laid down by Hon'ble Supreme Court for grant of compassionate appointment, shall also be scrupulously followed and that
(v) all other provisions of the Rules except the inclusion of the 'married daughter' in the definition of 'dependent', shall have full application."
The bench overruled Sumer Kanwar v. State of Raj. & Ors.: 2012(3) RLW 2546 (Raj.) and all other judgments, which have followed Sumer Kanwar, upholding the denial of compassionate appointment to married daughter. In Sumer Kanwar, while negating the challenge to the validity of the Rule, the division bench had observed that that the definition of the dependent was a matter of policy and thus the married daughter cannot be said to be dependent on the deceased employee and it is not for the Courts to widen the scope of the Rules on account of the nature of claim i.e. compassionate appointment.
The court opined that merely on account of quashing of the said word 'unmarried' from the definition, by itself cannot revive the concluded cases wherein the appointments have already been accorded in terms of the existing provisions. The court also noted that even after quashing of the word 'unmarried' from the definition, the same would apply to the pending cases only as the likely applicants, qua whom the cause of action had arisen long back even otherwise would not be eligible, in view of repeated Supreme Court's pronouncements regarding the purpose of grant of compassionate appointments i.e. for the purpose of tiding over the immediate requirement, which arises on account of death of the government servant while in service.
In addition to this, the bench stated that apprehensions expressed by the counsels regarding the consequence of striking down the word 'unmarried' are apparently misplaced. In this regard, the bench noted that in cases where the government servant has died long back, the striking down of the word from the definition, by itself would not provide any fresh cause of action to any of the applicants and, therefore, the apprehension expressed, has no basis.
The bench observed that the opinion of various High Courts regarding the exclusion of married daughter from the purview of grant of compassionate appointment is essentially unanimous that the same is violative of Articles 14 to 16 of the Constitution of India. Except for the judgments of this Court, which all have followed the initial judgment in the case of Smt. Sumer Kanwar (supra), none has cited any other judgment upholding the exclusion of married daughter from the definition, added the court. The court added that the proposition holding the married daughter as eligible for compassionate appointment, has the sanction of the Supreme Court as well.
Moreover, the bench opined that now under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, equal duty on both sons and daughters to take care and maintain the parents has been placed and, therefore, the purported assumption in seeking to distinguish a married son from a married daughter for the purpose of grant of compassionate appointment, cannot be sustained.
Furthermore, the bench said that it is now well settled that the object of according compassionate appointment to the dependent of a deceased government servant, is to help the family to tide over the crisis, which unfortunately they are faced with on account of death of the sole earner of the family. The intention is to ensure that the family is able to face the catastrophe and, therefore, emphasis has always been laid on according immediate appointment to the dependent, added the bench.
The 3-judge bench also observed,
"Yardstick, for extending the benefit of compassionate appointment in terms of the Rules is and should be dependency of the dependents on the deceased government servant and, therefore, their marital status only should not be an impediment for consideration on compassionate ground. In fact, the requirement of the definition quoted hereinbefore even for the spouse, son and unmarried daughters, requires them to be wholly dependent on the deceased government servant at the time of his/her death and, therefore, inclusion of the married daughter in the definition, would not dilute the said requirement of the Rule."
The court ruled that the marriage by itself cannot be a disqualification and, therefore, the definition barring a married daughter from seeking compassionate appointment merely on the ground of her marriage is apparently arbitrary and violative of Articles 14, 15 and 16(2) of the Constitution of India.
On respondent-counsel's submission that the Rule making authority has deliberately omitted a married daughter from the definition, as a married daughter would be dependent on her husband and/or her-in-laws, the bench stated that the said submissions and exclusion is based on an assumption that only as a consequence of marriage, the married daughter would cease to be dependent on the deceased government servant and, therefore, disentitled to be considered for compassionate appointment.
"The only reason indicated is purported lack of presumed dependence, the said basis, cannot be sustained, inasmuch as, there may be cases where despite marriage, the daughter for various reasons may continue to be dependent on the deceased government servant," added the court.
The bench said that the very assumption that a married daughter, would invariably and in all cases, would not be dependent on the government servant is based on surmises, oblivious of the present day social realities and at the same time including a dependent married son, while leaving out a dependent married daughter from the definition, is clearly discriminative.
The members of the Bar include Mr. Vinay Jain, Dr. Nupur Bhati, Mr. Harish Purohit, Mr. M.S. Purohit, Mr. Rakesh Kalla, Mr. Manish Pitaliya, Mr. Subhankar Johari, Mr. Vikas Bijarnia, Mr. Vivek Mathur, Mr. Hanuman Singh Choudhary, Mr. Amit Kumar Purohit, Mr. D.D. Purohit, Mr. Narayan Yadav, Mr. Lalit Parihar, Mr. Rishabh Tayal, Mr. Jitendar Choudhary. Mr. Kuldeep Vaishnav, Mr. V.D. Vaishnav, Mr. Vikram Singh, Mr. Arpit Samariya, Mr. Virendra Agarwal, G.S. Rathore, Mr. Hari Singh Rajpurohit, Mr. Bharat Devasi, Ms. Paru Malik, Mr. Narendra Malik, Mr. Rishabh Purohit, Mr. Pawan Bharti, Mr. M.P. Singh, Mr. Arpit Gupta, Mr. K.D. Dayal, Ms. Adeeti, Ms. Kingal Purohit, Ms. Radhika Vyas, Mr. Manoj Purohit, Mr. RDSS Kharlia, Mr. Naman Bhansali, Mr. S.S. Choudhary, Mr. Vishal Singhal, Mr. K.S. Sisodia, Mr. Kshma Purohit.
AAG Manish Vyas with Mr. Kailash Choudhary, AAG Sunil Beniwal,. AAG Sudhir Tak with Mr. Saransh Vij, Mr. Vikram Choudhary, Mr. R.R. Ankiya, Mr. Avin Chhangani, Ms. Dimple Chhangani, Mr. Parmeshwar Pilania, Mr. Surya Kant and Mr. Sayar Gurjar also appeared in the matter.
Case Title: Priyanka Shrimali v. State of Rajasthan & Ors. with other connected matters
Citation: 2022 LiveLaw (Raj) 231
Click here to read/ download Judgment