Compassionate Appointment| Perception That Married Daughter Not Part of Father's Household But Exclusive Of Husband's Household Is Outdated Mindset: Rajasthan HC

 "The perception of the daughter, after marriage no longer being a part of her father's household and becoming an exclusive part of her husband's household, is an outdated view and mindset."Justice Dr. Pushpendra Singh Bhati, observed.

The court observed that any discrimination between unmarried & married daughter and married son & married daughter would be in clear violation of Article 14 ,15 and 16 of the Constitution.

The court observed that in RBF Rig Corpn. v. Commr. of Customs (Imports) (2011) 3 SCC 573, State of A.P. v. Golconda Linga Swamy (2004) 6 SCC 522 and L. Chandra Kumar v. Union of India), it was held that in an appropriate case the writ court retains the power as inherent in its constitution to do the right and undo a wrong in course of administration of justice on the principle of quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives a person anything, it gives him that without which it cannot exist.

In the present matter, the father of the petitioner, who was working as Lineman in the Jodhpur Vidhyut Vitran Nigam Limited, died while in service on 05.11.2016 leaving behind his wife Smt. Shanti Devi and daughter-petitioner. Deceased's wife was having health issues and thus, the petitioner, who is his married daughter, applied for compassionate appointment, which was initially processed, but subsequently rejected.

In this regard, the concerned authority held that as per Jodhpur Vidhyut Vitran Nigam Limited Compassionate Appointment of Dependents of Deceased Nigam Servants Regulation, 2016 (hereinafter to referred as 'Rules of 2016'), a married daughter of deceased employee would not fall within the category of the 'dependents'. The petitioner has challenges the aforesaid decision of the authority in this petition.

The court finds that the right to be included in the coparcenary of father and the equal responsibility of maintenance of parents in old age as that of a son, regardless of marital status; places equal responsibilities on married daughter and married son. The court opined that no reason as to why a distinction must be made on the same ground, when it comes to compassionate appointment of married daughters.

The court also observed that the pre-marriage status of a daughter, of being single/unmarried and post marriage status of a daughter either divorced, widowed or single again, renders her capable of seeking compassionate appointment. Only the exclusion of a daughter, during the period of marriage, for seeking compassionate appointment is arbitrary and unjust, added the court.

Furthermore, the court opined that discrimination between a married son and a married daughter, with regard to appointment on the ground of compassionate appointment is not a reasonable classification and amounts to a treatment of equal persons in the eyes of law as unequal, which grossly violates Article 14. It adds that the aforesaid discrimination is not only violative of Article 15(3), but goes against the interest of women. In furtherance, court observes Article 16 prohibits discrimination on grounds of sex among citizens, particularly in the matters of public employment.

Moreover, the court finds that the Apex Court in C.N. Apporva Shree, while analyzing the judgment has gave full imprimatur to the reasoning of the Karnataka High Court in Smt. Bhuvaneshwari V. Puranik and thus, it is clear that the rule within expression of family/dependent has to include unmarried daughter at par with married daughter and married daughter at par with married son.

The court opined that the larger ramification of a law being struck down by the Courts is that it stands nullified in its stream of parallel legislation. It adds that even if any analogous law or legislation having the same meaning is not directly mentioned, then also, if it is absolutely on the same terms, as that of the law having been struck down by the Apex Court, then such legislation will fall within the same purview.

The court further observed that it is not necessary that all legal parameters on the same wavelength need to be mentioned while striking down a legislation. The court further adds that what is to be seen is that the words and the exact spirit, if same, the verdict of the Apex Court is bound to have an impact of completely governing the field in question.

In addition to this, the court observed that an analogous rule existed in the Rules of 1996 before the amendment made by the Legislature of the State of Rajasthan on 28 Oct, 2021. The court adds that it finds that there is no requirement to strike down the said provision of law, however, it also does not find any reason to deprive the petitioner of her right, especially in light of C.N. Apporva Shree and the subsequent amendment brought by the State Legislature.

In furtherance, the court observed that the welfare legislation, in the considered opinion of the State has, after recent amendment to the Rules of 1996, now includes "married daughter" in the definition of dependent in the Rules of 1996, and to give a full colour to the welfare legislation, it needs to be implemented on all pending issues, which have not attained finality. It further observed that this matter of.present case comes within the perspective of pending issue and has been sub-judice since 2017.

Taking into account that the Rules of 1996 are a welfare legislation, and the resounding mandate of Apex Court declaring the law treating a married daughter, as a disqualified person, as a trite law, the court is not declined to accept the proposition of the learned counsel for the respondent seeking rejection of the claim of compassionate appointment of the petitioner.

The counsel for the petitioner submitted that the petitioner is entitled to be given the compassionate appointment., as per Clause (iv) of Rule 2(c) and as per the clear interpretation of the Rules of 1996, which states that 'dependant' includes married daughter, if no other dependent of the deceased Government servant is available.

On the other hand, the counsel for the respondents relied upon the order of this Court in the case of Nakul Vs. State of Rajasthan & Ors. in D.B. Civil Writ Petition No.15912/2021, decided on 26.11.2021 wherein the court held that if the rule making authority at the relevant time provided within the purview of the definition of dependent a smaller class of members of the family of the deceased Government servant and excluded his/her brothers or sisters, the same per se so cannot be said to be discriminatory.

Adv. Trilok Joshi appeared on behalf of petitioner, whereas AAG Pankaj Sharma, Adv. Kuldeep Mathur assisted with Adv. DS Sodha appeared on behalf of respondents.