In the court of the High Court of Madhya Pradesh Criminal Appeal No. 64 of 19771979 AIR 185, 1979 SCR (1) 810 Petitioner Meenakshi Dubey Respondent M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. Date of Judgement 2nd March 2020 Bench Hon’ble Justice Sujoy Paul; Justice J.P. Gupta; Justice (Smt.) Nandita Dubey
Facts of the Case:
Meenakshi Dubey, the petitioner is the daughter of a deceased employee, filed a claim for compassionate appointment, and the same was rejected as she was married, and thus not “eligible” for compassionate appointment.
She filed a writ petition No. 9631/2017 challenging the same. It was dismissed on 8th January 2019 stating that as per the policy of the company, a married woman does not deserve to be considered for considerate appointment.
Aggrieved by the order, she filed a writ appeal No. 756/2019, which was decided on 8th January 2020. However, in the same the constitutionality of clauses of the policy of the employer for compassionate appointment were not challenged.
Nevertheless, during the hearing of the writ appeal, the appellant cited a judgement of Smt. Meenakshi v. State of M.P and others, W.P No. 3769/2017 of the Indore Bench. In this case, few clauses of the policy of the State Government were questioned. The clauses which curtail the rights of the married daughter are curtailed when there is a male child of the deceased government servant, are violative of Art 14, 15, 25 and 51A(e) of the Indian Constitution.
The Division Bench in the Writ Appeal No. 756/2019, disagreed with the judgement of Smt. Meenakshi v. State of M.P and others, W.P No. 3769/2017 stating that it treated compassionate appointment as a right, when these appointment are done based on humanitarian grounds to provide with a relief which is immediate to the families and as such cannot be claimed as a right.
Generally, employment should be given based on their qualifications, and not on descendants. Thus, the compassionate appointment is an exception to the general rule. It is an exception that is binding on both the employee and employer and being and exception it should be strictly construed with an object to achieve the purpose.
The bench in the Writ Appeal believed that the matter should be referred to a larger bench and instead of keeping it pending, disposed the matter, stating that the appellant is the married daughter and is not dependent on her father, thus there is no illegality in the matter.
a. Whether the exclusion of a married daughter in the policy for compassionate appointment is violative of Article 14, 15, 16 of the Constitution of India?
The petitioner contended that the clause 2.2 of the policy which excludes the married daughter from compassionate appointment is discriminatory, arbitrary and unreasonable.
They contended that the matter should be heard at later so that the Government will have time to see the validity of the clauses of 2.2. and 2.4 and if necessary, make changes in the same. Then the corrected policy can be examined by this Bench.
The court held that this matter is not a regular matter and it is has been referred to a larger bench and they are under the obligation to answer the question and the State Government can redraft it later, and after the Indore Bench’s decision which declared the policy as unconstitutional, the State Government had plenty of time to rectify the policy.
The clauses of similar nature of policy of compassionate appointment have been questioned in many High courts as violative of Art 14 and 15 of the Indian Constitution.
In Bhawna Chourasia v. State of M.P (2019 (2) MPLJ 707) and Sarojini Bhoi v. State of Chattisgarh and others (WP(S) No. 296/2014), it has been held in many cases that there will be travesty of justice, if daughters are deprived of their right to be considered for compassionate appointment.
Also, the right to obtain compassionate appointment should be the dependency of the person and not marital status. Even after marriage a daughter remains a member of the family and should not be treated otherwise. A women citizen should not be excluded on basis of sex for employment, and only can be excluded if there are compelling reasons to do so.
In the case of State of W.B and others v. Purnima Das and others (2018 Lab IC 1522) it was held that every member of the family who is dependent is considered a class, and exclusion of a daughter only based on marital status, when a married son will be eligible is not a reasonable classification.
In the case of Sou. Swara Sachin Kulkrni v. Superintending Engineer, Pune Irrigation Project Circle, (2013 SCC Online Bom 1549) it was held that a daughter not being eligible for a compassionate appointment solely based on marital status violates the mandate of Article 14, 15, 16 of the Constitution of India. The purpose of compassionate appointment is to provide with assistance to the family by giving employment to one of the dependents and the daughter was a dependent on the deceased.
The judgements of the various High Courts are very clear in establishing that deprivation of daughter from compassionate appointment solely based her being married is against Article 14, 15, 16 and 39(a) of the Constitution.
Article 14 provides for classification which is intelligible and reasonable, and the present policy is an artificial classification which divides a homogenous class, by creating a class within a class.
The court is aware that the compassionate appointment is an exception to a general rule. As per policy of compassionate appointment, the state is considering the appointment of married daughters, but only in situations where there is no male child present.
After the death, it is up to the spouse to determine who will be best suited for compassionate appointment whether her/his son or daughter.
Therefore, the court held that the judgement of the Indore Bench in the case of Smt. Meenakshi is right when looked at in any angle. Thus, the clause of 2.2 of policy which deprives the married daughter from compassionate appointment is violative of Article 14, 15, 16 and 39(a) of the Indian Constitution.
Edited by Sree Ramya
Approved & Published – Sakshi Raje