We cannot expect a Welfare State to take a stand
that a married daughter is ineligible to apply for compassionate
appointment simply because she becomes a member of her husband's
family. She cannot be treated as not belonging to her father's family. The
deceased was her father. In this case, the deceased has only daughters.
Both are married. The wife of the deceased and the mother of the
daughters has nobody else to look to for support, financially and
otherwise in her old age. In such circumstances, the stand of the State
that married daughter will not be eligible or cannot be considered for
compassionate appointment violates the mandate of Article 14, 15 and 16
of the Constitution of India. No discrimination can be made in public
employment on gender basis. If the object sought can be achieved is
assisting the family in financial crisis by giving employment to one of the
dependents, then, undisputedly in this case the daughter was dependent
on the deceased and his income till her marriage. Even her marriage was
solemnized from the income and the terminal benefits of the deceased. In
such circumstances if after marriage she wishes to assist her family of
which she continues to be a part despite her marriage, then, we do see
how she is disentitled or ineligible for being considered for
compassionate employment. This would create discrimination only on the
basis of gender. We do no see any rationale for this classification and
discrimination being made in matters of compassionate appointment and
particularly when the employment is sought under the State. The State is
obliged to bear in mind the constitutional mandate and also directive
principles of the State Policy.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11987 OF 2012
Sou.Swara Sachin Kulkarni
(Kumari Deepa Ashok Kulkarni)
..Petitioner
Versus
The Superintending Engineer, Pune
Irrigation Project Circle and Anr.
CORAM: S.C. DHARMADHIKARI &
REVATI MOHITE DERE JJ.
DATE : 06th DECEMBER, 2013
The petitioner is the daughter of the deceased – Ashok
Kulkarni. He was working as a wireman with the respondent no.1State
and particularly reporting at the Pune Irrigation Project Circle, Pune. He
died on 10th September, 2003. The petitioner’s daughter applied for an
appointment on compassionate ground on 23 rd December, 2003. Her
application was accepted and after the same was processed a list of
employees who were claiming compassionate appointment on the ground
that they were dependents on the income of the deceased was prepared.
The petitioner’s name was at Sr.no.1070 in the wait list. Thereafter, there
being no vacancies a appointment order could not be issued. The
petitioner’s name was kept in the wait list, initially at Sr.no.1070 and later
on it is at serial no.10. In terms of Government Resolution dated 22nd
August, 2005 the petitioner expected a appointment order, and
particularly because the same stated that appointments would be made
step by step in next three years. Thereafter relying on the Government
years of age or married that the petitioner’s name was deleted.
Resolution dated 26th October, 1994 that if the candidates are above 40
The petitioner claim that her name has been deleted only
because she is married. A married daughter could not have laid a claim
for compassionate employment, because in the perception of the
respondent nos.1 and 2, she is no longer a part of the family of the
deceased. It is this stand, which is questioned before us, in this writ
ig
petition. Mr.Kulkarni, appearing on behalf of the petitioner submitted that
the facts in this case are peculiar. The deceased only had daughters. Both
daughters are married. The second daughter is not interested in the job.
The petitioner is interested in the job because she is supporting her
widowed mother. The mother has nobody to look forward to except the
petitioner – daughter. The petitioner has asserted that even after her
marriage she is looking after her mother in her old age. In such
circumstances, the deletion of her name from the list is violative of the
constitutional mandate of Article 14 and 16 of the Constitution of India.
It is on this point that we have heard the Counsel and after
perusing the writ petition and all the annexures thereto, so also the
affidavit placed on record, we are of the opinion that the petitioner’s name
could not have been deleted from the list. The compassionate
employment is to enable the family to get or tide over a financial crisis.
As the petitioner is the only member who can earn and support the
mother in her old age, so also the emoluments including the pension of
the deceased are inadequate that she was interested in pursing her claim.
The name of the petitioner was therefore duly reflected in a list initially
and thereafter a recruitment or appointment exercise was undertaken.
The petitioner therefore was wait listed at Serial No.10. Thus, initially her
number was 1070 and which advanced to Serial No.10. We find that the
respondents insisted on the petitioner submitting a certificate that she is
unmarried, that is by a communication dated 21 st May, 2011. The
petitioner pointed out that such an insistence is impermissible in law. A
letter dated 27th February, 2009 was issued communicating to her that her
name has been deleted from the wait list owing to her marriage. If the
petitioner's name is to be deleted from the list because of her marriage
then insistence on production of a certificate about her marital status in
the year 2011 was clearly an exercise visited by nonapplication of mind.
The deletion by letter dated 27th February, 2009 itself is violative of
constitutional mandate. We cannot expect a Welfare State to take a stand
that a married daughter is ineligible to apply for compassionate
appointment simply because she becomes a member of her husband's
family. She cannot be treated as not belonging to her father's family. The
deceased was her father. In this case, the deceased has only daughters.
Both are married. The wife of the deceased and the mother of the
daughters has nobody else to look to for support, financially and
otherwise in her old age. In such circumstances, the stand of the State
that married daughter will not be eligible or cannot be considered for
compassionate appointment violates the mandate of Article 14, 15 and 16
of the Constitution of India. No discrimination can be made in public
employment on gender basis. If the object sought can be achieved is
assisting the family in financial crisis by giving employment to one of the
dependents, then, undisputedly in this case the daughter was dependent
on the deceased and his income till her marriage. Even her marriage was
solemnized from the income and the terminal benefits of the deceased. In
such circumstances if after marriage she wishes to assist her family of
which she continues to be a part despite her marriage, then, we do see
how she is disentitled or ineligible for being considered for
compassionate employment. This would create discrimination only on the
basis of gender. We do no see any rationale for this classification and
discrimination being made in matters of compassionate appointment and
particularly when the employment is sought under the State. The State is
obliged to bear in mind the constitutional mandate and also directive
principles of the State Policy. The point raised in this case is covered by
the Judgment of a Division Bench in Writ Petition No.1284 of 2011
decided on 1.8.2011 and a Judgment of a learned Single Judge in W.P
.
In such circumstances, the communication dated 27th
No.6056 of 2010 decided on 26th October, 2010, all of this Court.
February, 2009, copy of which is annexed at page 30 of the paper book
cannot be sustained. The writ petition is allowed. This communication is
quashed and set aside and equally the further communications in
pursuance thereof. The petitioner’s name shall stand restored to the wait
list maintained by respondent nos.1 and 2 for appointment on
compassionate basis. However, we clarify that we have not issued any
direction to appoint the petitioner. Let her case be considered in terms of
the applicable policy of Compassionate Appointment or Employment
together with others. Her name should not be deleted or omitted only
because she is married and that is why we have restored her name in the
wait list. Beyond that we have not issued any direction.
The writ petition is allowed in these terms with no order as to
costs.
(REVATI MOHITE DERE, J.)
(S.C. DHARMADHIKARI, J.)
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