While fully, firmly and finally espousing equality for women with men, a three Judge Full Bench of the Rajasthan High Court has just recently on September 13, 2022 in a most laudable, learned, landmark and latest judgment titled Priyanka Shrimali vs State of Rajasthan & Ors. with other connected matters in Civil Reference No. 1/2022 connected with others and cited in 2022 LiveLaw (Raj) 231 has observed most commendably, cogently and convincingly 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 with effect from (w.e.f.) 28.10.2021, wherein the married daughter has also been included in the definition, subject to certain conditions. In this context, 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.
It was also made clear by the Full Bench that on account of the stipulation ‘unmarried’ daughter in the definition of dependent under the unamended provision, the applicant-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. Most commendably, while answering a reference made by the Division Bench, the 3-Judge Full Bench of the Rajasthan High Court comprising of Hon’ble Mr Justice Sandeep Mehta, Hon’ble Mr Justice Vijay Bishnoi and Hon’ble Mr Justice Arun Bhansali in this leading case observed sagaciously noting that, “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 daughters, shall be read as daughters/adopted daughter.” Very rightly so!
At the outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Arun Bhansali for a Full Division Bench of the Rajasthan High Court comprising of Hon’ble Mr Justice Sandeep Mehta, Hon’ble Mr Justice Vijay Bishnoi and himself first and foremost puts forth that, “The present reference has come-up before this Larger Bench on account of issue referred by the Division Bench on 12.01.2022, inter alia, observing and referring the question as under:-
“In our opinion, the view of the Rajasthan High Court requires consideration by a larger Bench. The reference is therefore made to three members Bench on the following:
“Whether the view taken by the three Division Benches of this Court in the cases of Smt. Sumer Kanwar (supra), Smt. Vandana Sharma (supra) and Kshama Devi (supra) upholding the vires of Rule 2(c) of the Rules, which excludes the married daughter from the definition of term ‘dependent’ is correct?””
As we see, the Full Bench then stipulates in the next para that, “After hearing the learned counsel appearing before this Bench, on 20.07.2022, the question referred was re-framed with the following observations:-
“After hearing the learned counsel appearing before us on previous dates and today, we are of the opinion that the question which has been referred to the Larger Bench requiring it to examine the correctness of the Division Bench judgments in the case of Smt. Sumer Kanwar, Smt. Vandana Sharma and Kshama Devi restricts the scope of consideration of the aspects which arise in the matter and rather puts this Larger Bench in an appellate position, which essentially is contrary to the jurisprudence in relation to reference of issues to a Larger Bench.
In view of the above, after hearing the learned counsel, the issue for consideration in the present reference is re-framed as under:
“Whether the provisions of Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996, which excludes the married daughter from the definition of ‘dependent’, prior to its amendment vide Notification dated 28/10/2021, is discriminatory and violative of Articles 14 & 16 of the Constitution of India? In case the provision is discriminatory etc., the consequences thereof.””
Truth be told, the Full Bench then discloses in the next para that, “The above question was referred by the Division Bench, while hearing the case of Priyanka Shrimali v. State of Raj. & Ors.: DBCW No. 14345/2021. Whereafter, in Savita Khatik v. State of Raj. & Ors.: DBCW No. 13697/2021 and Smt. Heena Sheikh v. State of Raj. & Ors.: DBCW No. 15488/2021 also directions were given for connecting the said petitions with the present reference.”
No doubt, the Full Bench then rightly reveals in next para that, “Though in Kavita Gurjar & Anr. v. State of Raj. & Ors.: DBCW No.7343/2019, challenge has been laid to the validity of Clause 2(c) of the Rajasthan State Road Transport Corporation Compassionate Appointment of the Dependents of Deceased Employees Regulations, 2010, as the provisions are akin to the provisions of Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (‘the Rules of 1996’), the same was also ordered to be connected to the present reference.”
To put things in perspective, the Full Bench then envisages quite aptly in the next para that, “The petitioner-Priyanka Shrimali filed the petition praying that the provisions of Rule 2(c) of the Rules of 1996 be declared unconstitutional to the extent it envisage that besides spouse and son only ‘unmarried daughter’ is entitled for consideration for compassionate appointment as the petitioner, a married daughter of Smt. Hemlata Shrimali, a Government Servant, who died on 18.06.2021 sought compassionate appointment as the only child of the deceased, even after the marriage, she was living with her parents and now father only, however, on account of the provisions of the Rules of 1996, her candidature was rejected by order dated 01.09.2021, inter alia, indicating that married daughter is not eligible for compassionate appointment under the Rules of 1996.”
While continuing in the same vein, the Full Bench then states in next para that, “Similarly, the petitioner-Savita Khatik, on account of death of her mother, a Government servant, who died on 18.04.2021 and being the only child claimed herself to be wholly dependent on her mother, sought appointment under the Rules of 1996, however, as the definition of dependent excluded married daughter under the Rules of 1996, she has challenged the validity of the provision.”
Further, the Full Bench then states in next para that, “The petitioner-Heena Sheikh’s mother Smt. Nuzhat Aara was a Government servant, who died on 04.03.2019 and the petitioner also being the only child, sought compassionate appointment claiming herself as dependent on the deceased, however, it was indicated to her that on account of the fact that the petitioner is a married daughter of the deceased, she is not entitled for compassionate appointment under the Rules of 1996.”
Be it noted, the Full Bench clearly states that, “In the present circumstances, though the provision i.e. Rule 2(c) of the Rules of 1996 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, however as 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 and as under the unamended provision, on account of the stipulation ‘unmarried’ daughter in the definition of dependent, they have been rendered ineligible, the challenge laid by the petitioners, cannot be negated merely on account of the fact that the provision stands amended w.e.f. 28.10.2021.”
Needless to say, the Full Bench rightly points out that, “The Larger Bench of Madhya Pradesh High Court in the case of Meenakshi Dubey (supra) came to the conclusion that the clause in the policy to the extent, the same debars the married daughter from right of consideration for compassionate appointment, was violative of Articles 14, 15, 16 and 39(a) of the Constitution of India.”
Simply put, the Full Bench then further states that, “A Single Judge of Karnataka High Court in the case of Smt. Bhuvaneshwari V. Puranik (supra), after referring to various judgments on the said aspect, came to the conclusion that without a shadow of doubt the words unmarried were discriminatory and struck down the word unmarried in the Rule. The said judgment of the learned Single Judge was noticed by another Single Judge in the State of Karnataka & Ors. v. C.N. Apporva Shree & Anr.: WP No. 5409/2021 (S-KSAT), decided on 22.03.2021, who dismissed the petition filed by the State of Karnataka.”
Quite significantly, the Full Bench then points out in next para that, “Against the said judgment, when the State of Karnataka approached Hon’ble Supreme Court by filing Special Leave to Appeal, in State of Karnataka & Ors. v. C.N. Apporva Shree & Anr.: Special Leave to Appeal (C) No.20166/2021, decided on 17.12.2021, Hon’ble Supreme Court ordered as under:-
“We have heard learned counsel for the petitioner(s) and have analyzed the impugned judgment. We give our full imprimatur to the reasoning of the High Court, more so, as even the rule in question relied upon by the petitioner to deny a married daughter a job on compassionate grounds while permitting it to a married son, has been quashed in the judgment of the Karnataka High Court in Bhuvaneshwari V. Purani v. State of Karnataka – (2021) 1 AKR 444 [AIR Online 2020 Kar 2303]. The Special Leave Petition is dismissed.””
Quite ostensibly, the Full Bench then expounds in next para stating that, “From the above, it would be seen that Hon’ble Supreme Court, while dismissing the Special Leave to Appeal made observations giving its full imprimatur to the reasoning of the High Court in the case of C.N. Apporva Shree (supra) and noticed that the denial of job on compassionate basis to a married daughter while giving such indulgence to a married son has been quashed in the case of Smt. Bhuvaneshwari V. Puranik (supra).”
As a corollary, the Full Bench then deduces from the afore-stated that, “From the above cited judgments, it would be seen that practically all the High Courts, after testing the validity of exclusion of a married daughter from the definition of dependent/family have unanimously come to the conclusion that the said exclusion was unconstitutional.”
It would be instructive to note that the Full Bench then observes that, “Coming to the submissions made by learned counsel for the respondent-State seeking to emphasize that the Rule making authority has deliberately omitted a married daughter from the definition of dependent as after marriage, a married daughter would be dependent on her husband and/or her-in-laws. 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. As 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.”
More to the point, the Full Bench then forthrightly states in the next para 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.”
It cannot be lost sight of that the Full Bench then propounds that, “The Hon’ble Supreme Court in Dr. (Mrs.) Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai & Anr.: (1987) 2 SCC 278, opined that a daughter after marriage does not cease to be a daughter of a father and mother and did not accept the contention that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves. It was held that it is moral obligation of the children to maintain their parents and that Section 125 Cr.P.C. has imposed a liability on both the son and daughter to maintain their parents, who is unable to maintain himself or herself.”
On similar lines, the Full Bench then further states that, “Further, 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.”
Most remarkably, the Full Bench then minces no words to hold that, “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.”
Most commendably, the Full Bench then unequivocally holds that, “Further, 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.”
It cannot be glossed over that the Full Bench then points out that, “From what has been laid down by various High Courts, dealing with the exclusion of married daughter from the purview of grant of compassionate appointment, the opinion essentially is 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. Besides the above, the fact that Hon’ble Supreme Court in the case of C.N. Apporva Shree (supra) has given its full imprimatur to the reasoning of the High Court and has noticed that the provision denying married daughter a job on compassionate grounds, has been quashed in the case of Bhuvaneshwari V. Purani (supra), the proposition holding the married daughter as eligible for compassionate appointment, has the sanction of Hon’ble Supreme Court as well.”
It is worth noting that the Full Bench then holds in next para that, “Hon’ble Supreme Court in the case of The Secretary, Ministry of Defence v. Babita Puniya & Ors.: (2020) 7 SCC 469, wherein challenge was laid to the directions of the High Court ordering that the Short Service Commission Women Officers are entitled to Permanent Commission at par with Male Short Service Commission with all consequential benefits, observed as under:-
“67. The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1).””
Most significantly, the Full Bench minces absolutely no words to unambiguously hold that, “From the above discussion, it can be safely concluded that the use of word ‘unmarried’ in Rule 2(c) of the Rules of 1996 depriving a married daughter from right of consideration for compassionate appointment, violates the equality clause and cannot be countenanced. Consequently, the reference is disposed of. The re-framed question in the reference, is answered as under:-
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. The judgment in the case of Sumer Kanwar (supra) and all other judgments, which have followed the judgment in the case of Sumer Kanwar (supra), upholding the denial of compassionate appointment to married daughter, are overruled.”
What’s more, the Full Bench then further hastens to add in next para that, “As a consequence, it is directed that 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.”
Finally, the Full Bench then concludes by directing that, “The matters be now placed before the Division Bench for appropriate orders.”
In summation, the Full Bench of the Rajasthan High Court has made it indubitably clear in this notable judgment that depriving the married daughter from right of consideration for compassionate appointments violates Articles 14 to 16. Of course, what has been resoundingly laid down by a three-Judge Full Bench of the Rajasthan High Court has to be accepted by all the Courts and it is a most progressive judgment which deserves to be implemented in totality by all the Courts! No denying it!
Sanjeev Sirohi