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'Married Daughter' Always A Family Member Like 'Married Son': U'khand HC Reads Down Discriminatory Compassionate Appointment Rules [Read Judgment]

Ashok Kini
4 April 2019 9:21 AM GMT

"Just as a son continues to be the son of the deceased Government servant, both before and after marriage, so does the daughter. The mere fact that she is married does not result in her ceasing to be the daughter of the deceased Government servant."

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In an important judgment in the realm of gender rights, a full bench of Uttarakhand High Court has held that non-inclusion of "a married daughter" in the definition of a "family", and denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is gender discrimination and thus violative of fundamental rights.

The bench comprising the Chief Justice Ramesh Ranganathan, Justice Lok Pal Singh and Justice R.C. Khulbe observed that both a "married son" and a "married daughter", who were dependent on the government servant who died in harness, would stand on the very same footing, for the purpose of consideration to compassionate appointment.

One of the question referred to the full bench was whether non-inclusion of a "married daughter" in the definition of "family", under Rule 2(c) of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, and in the note below Regulation 104 of the U.P. Cooperative Committee Employees Service Regulations, 1975.

While addressing the arguments, both in favour and against the provisions, the bench observed that, if the criteria, for providing compassionate appointment, is dependence on the deceased Government servant, it is difficult to accept the submission that "dependent married sons" are the norm and "dependent married daughters" are an exception.

Ignores Present Day Social Realities

The bench observed that these Rules and Regulations, ignores the realities of present day society. It said:

The classification of a "family" under the 1974 Rules and the 1975 Regulations, as excluding "married daughters", is based on the premise that, on her marriage, a daughter ceases to depend on her father and is, thereafter, dependent on her husband and her in-laws. While this premise may, possibly, have been justified in the social environment prevalent half a century ago, such a premise ignores the realities of present day society where the number of destitute women abandoned by their husbands, or those who are divorced and are not even provided maintenance, are on rise.

The court also referred to statistics about destitute women abandoned by their husbands, and further observed:

"The policy, based on the marriage of a daughter proving fatal for appointment on compassionate grounds, proceeds in oblivion of husbands harassing and torturing wives in ample measure, and thereby creating a situation for the wives to withdraw from the matrimonial household, and return to her paternal home, usually the first refuge of one in distress. Such situations are not uncommon in Indian conditions.. These destitute women invariably come back to their parental home, and are supported by their parents both financially and otherwise. This premise of the State Government, in making the Rule/Regulation, is completely flawed and ignores present day social realities."

The court further observed that the test to be eligible for consideration to compassionate appointment is of dependence, and thus there is no justification in excluding a "married daughter" from being considered for appointment on compassionate grounds, as a member of the "family" of the deceased Government servant, in cases where she is found, despite her being married, to be dependent on the deceased Government servant.

Gender Discrimination

The bench further observed that the exclusion of a "dependent married daughter", while including a "dependent married son" in the definition of a "family" in the Rules/Regulations relating to compassionate appointment, amounts to gender discrimination.

"Just as a son continues to be the son of the deceased Government servant, both before and after marriage, so does the daughter. The mere fact that she is married does not result in her ceasing to be the daughter of the deceased Government servant. Just as sons (married or unmarried) or daughters (widowed or unmarried) may also have an independent means of livelihood, and would therefore not be eligible to be considered for compassionate appointment as they are not dependent on the deceased government servant, likewise a married daughter, who is not dependent on the deceased, would also be ineligible for being considered for compassionate appointment." 
The bench then applied 'reading down' rule and said that a "married daughter" shall also be held to fall within the inclusive definition of the "family" of the deceased Government servant, for the purpose of being provided compassionate appointment under the 1974 Rules and the 1975 Regulations.

The court also made it clear that the members of the "family" of the deceased Government, which would now include a "married daughter", would be entitled to be considered for compassionate appointment only if they were dependent on the Government servant at the time of his death, and satisfy all the other conditions stipulated in the 1974 Rules and the 1975 Regulations.

Read Judgment

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