Rajasthan High Court: The present petition challenges the position of law prior to the amendment of Rule 2(c) of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996, which excludes the married daughter from the definition of ‘dependent’, for the purpose of compassionate appointment vide Notification dated 28-10-2021, a 3-Judge-Bench of Sandeep Mehta, Vijay Bishnoi and Arun Bhansali, JJ. held that the provision of Rule 2(c) of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996, which exclude 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 Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 also the word unmarried daughters/adopted unmarried daughter, shall be read as daughters/adopted daughter.
Factual Background
In the present case, dependents/ married daughters seek compassionate appointment after the death of their respective parents who were in government services. The grievance arises from the denial by the authorities rendering these dependents ineligible for such an appointment. This is premised on the fact that the death of the parents occurred before the provision got amended.
The amended provision includes married daughter in the term ‘dependents’ however prior to amendment such was not the case.
It is pertinent to note that the provision i.e., Rule 2(c) of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 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 the aggrieved dependents were rejected to exercise the right under the amended provision.
Thus, the present case was filed combining two other petitions involving the same grievance that forms the subject matter of the question of law.
Issue Under Consideration
The Court examined all previous judicial discussions while dealing with a similar issue and noted that apparently, the issue of exclusion of married daughter, only on account of her marital status in contradistinction to that of a married son and/or unmarried daughter, has not been examined so far, on the touchstone of Articles 14 to 16.
Analysis
The Division Bench of Allahabad High Court while striking down the exclusion of married daughters from the ambit of the expression “family” in Rule 2(c) of Dying-in-Harness Rules, in Vimla Srivastava v. State of UP, 2015 SCC OnLine All 6776, held
Marriage does not determine the continuance of the relationship of a child, whether a son or a daughter, with the parents. A son continues to be a son both before and after marriage. A daughter continues to be a daughter. This relationship is not affected either in fact or in law upon marriage. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter.
Our society is governed by constitutional principles. Marriage cannot be regarded as a justifiable ground to define and exclude from who constitutes a member of the family when the state has adopted a social welfare policy which is grounded on dependency.
The Supreme Court in State of Karnataka v. C.N. Apporva Shree, Special Leave to Appeal (C) No.20166 of 2021 decided on 17-12-2021 has approved the view of Karnataka High Court noticing the judgment in the case of Bhuvaneshwari V. Puranik v. State of Karnataka, 2020 SCC OnLine Kar 3397, by way of a reasoned order and, therefore, striking down the provision restricting the definition to ‘unmarried daughter’.
Karnataka High Court held that without a shadow of doubt the words unmarried were discriminatory and struck down the word ‘unmarried’ in the Rule.
The Court emphasized a Supreme Court ruling in Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai, (1987) 2 SCC 278, wherein it was observed that a daughter after marriage does not cease to be a daughter of the father/mother and it is an equal moral obligation of both son and daughter to maintain their parents u/Section 125 CrPC.
Even under 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.
Decision
The Court thus held that 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).
However, the Court remarked that there is no dispute as to which Principles/parameters have to be strictly followed by the Courts, while dealing with cases where the married daughter is included in definition.
The Court concluded that the use of word ‘unmarried’ in Rule 2(c) of 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.
Overruled Decision
Counsel for the respondent-State opposed the petition while heavily relying on judgment Sumer Kanwar v. State of Rajasthan, 2011 SCC OnLine Raj 3128 wherein the Division bench held
A married daughter cannot be said to be dependent on the deceased employee. The definition of dependent is with a view to give appointment to spouse, son, unmarried or widowed daughter, widow, etc. who are real dependents of the deceased. Such matters are within the purview of the policy of the State Government.
Exclusion of married daughter from the purview of dependents is appropriate. She is not dependent on premarital family. It is trite law that Courts cannot enlarge scope of such policy/rules. It is not for the Court to rewrite the policy/rules. The provision of Rule 2(c) cannot be said to be illegal or arbitrary in any manner.”
In this light, the Court held 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.
Implication of the Decision
On apprehensions laid down by various counsels regarding the consequence of striking down of the word ‘unmarried’, the Court observed that the same are apparently misplaced as merely on account of quashing of the 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 thus directed that on account of striking down of the word ‘unmarried’ from the definition’
(i) the same shall not affect 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
[Priyanka Shrimali v. State of Rajasthan, 2022 SCC OnLine Raj 1479, decided on 13-09-2022]
Advocates who appeared in this case:
Members of the Bar present before the Court:
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, Mr. 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 through V.C., Mr. Kshma Purohit through V.C., Mr. Manish Vyas, AAG with Mr. Kailash Choudhary, Mr. Sunil Beniwal, AAG, Mr. Sudhir Tak, AAG with Mr. Saransh Vij, Mr. Vikram Choudhary, Mr. R.R. Ankiya, Mr. Avin Chhangani. , Ms. Dimple Chhangani through V.C. , Mr. Parmeshwar Pilania through V.C., Mr. Surya Kant through V.C., Mr. Sayar Gurjar, through V.C.
*Arunima Bose, Editorial Assistant has put this report together.