Depriving Married Daughter From Right Of Consideration For Compassionate Appointment Violates Articles 14 To 16: Rajasthan High Court Full Bench

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...

Depriving Married Daughter From Right Of Consideration For Compassionate Appointment Violates Articles 14 To 16: Rajasthan High Court Full Bench

ANIRUDH VIJAY

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