July 18, 2020 10:24:06 pm
THE PUNJAB and Haryana High Court has ruled that even a married daughter of a deceased government employee can be considered for compassionate appointment. While holding it to be violative of gender equality, the court has struck off the clause excluding a ‘married daughter’ from consideration under the Scheme for Compassionate Appointment, 2002, in Punjab.
A dependent family member of a deceased government employee, who dies in harness, is considered for appointment on compassionate grounds. The dependent family member, as per the scheme or government instructions, means a spouse, a son including an adopted son, unmarried daughter including an adopted daughter, and even an unmarried brother or sister, who was wholly dependent on the government servant or member of Armed Forces at the time of death in harness.
Observing that the intent and purpose of the scheme is to provide a helping hand to the family, which has all of a sudden lost the sole breadwinner, Justice Augustine George Masih in the ruling noted that while ‘daughter’ has been qualified by ‘unmarried’ in the scheme, there is no qualification with regard to marital status of a son. It added that such non-inclusion of a ‘married daughter’ in the definition of ‘dependent family member’ is violative of Articles 14, 15 and 21 of the Constitution.
Asserting that the state has a power to classify people or categories for legitimate purposes under the scheme, the court said, “However, there cannot ever be discrimination and that too against a woman merely on the basis of her sex, which would include the marital status.”
The court said the violation of gender equality would amount to violation of Articles 14, 15 and 21 of the Constitution as guaranteed to all the citizens of India and noted that equality cannot be achieved unless there are equal opportunities for all.
“If a woman is deprived at the threshold by rendering her ineligible for consideration merely because of her marital status being a woman, especially when the same is not true for the man, would amount to discrimination on the basis of gender identity. In other words, it can be said that merely because of sex, a man has a preferential right of consideration over a woman because of marital status, which has the effect of rendering the equal protection of law guaranteed under the Constitution a farce rather non est (does not exist). This cannot be permitted nor can it be allowed to be perpetuated.“
Observing that the basic test under the scheme is the dependence of the family member on the deceased government servant at the time of their demise, the court has questioned the difference of ‘married’ and ‘unmarried’ in the instructions. The court said that it appears that the authority has consciously omitted ‘married daughter’ from the definition of family of a deceased government servant on the assumption that she is dependent on her husband or in-laws after her marriage.
“This is based upon a wrong assumption that a daughter, upon her marriage, ceases to be a part of the family of her father. As the son remains a son throughout, so does a daughter irrespective of the marital status. If the son and the daughter continue to have these relations, which they attain on birth or on adoption, they cannot be deprived of such status merely because of their marital status, meaning thereby that if a married son, if dependent upon a deceased Government employee, is eligible for consideration for appointment on compassionate grounds, why would the married daughter not be entitled for the same treatment provided she fulfills the requirement of being dependent on the deceased government servant at the time of his/her demise,” the court remarked.
The case before HC
Jasbir Kaur, whose husband Head Constable Kashmir Singh died due to heart attack while on duty in October 2008, submitted a representation to the police department for appointment of their daughter Amarjit Kaur as a clerk or computer operator on compassionate grounds. The representation said Amarjit was dependent on her father. However, the claim was declined in 2015 for the reason that she was married. Amarjit was married in April 2004.
Amarjit in 2017 approached the High Court and challenged the rejection of her mother’s representation. She cited the report of a DSP, CID, who in 2009 concluded that she was the only daughter of Kashmir Singh and, along with her husband and children, was living with her mother Jasbir Kaur in her maternal house. There is no other source of income for them other than the pensionary benefits received by Jasbir Kaur, said the report. They also own one acre of land.
In the order, Justice Masih said she fulfils the criteria of being dependent upon her father entitling her for appointment on compassionate grounds, and has quashed the 2015 order by which her mother’s representation was rejected.
“Direction is issued to the Director General of Police, Punjab to issue appointment letter to the petitioner on consideration of her claim within a period of one month from the date of receipt of copy of this order,” the order read.
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