Sons don’t lose rights after marriage, why daughters? Orissa HC slams ‘mindless’ denial of compassionate job to woman

At the outset, the bench quoted the words of Ruth Bader Ginsberg (1933-2020), former associate justice of the US Supreme Court who said, “…overriding objective must be an end to role delineation by gender, and in its place, conduct at every school level, and later in the job market, signaling that in all fields of endeavor females are welcomed as enthusiastically as males are.”

The high court noted that excluding married daughters from seeking compassionate appointment would create an artificial classification and, therefore, would fall foul of the doctrine of equality enshrined in the Constitution.

Background

• The woman-petitioner’s father worked under Chief Construction Engineer, Pateru Irrigation Project for 30 years – from 1969 to 1999.
• After her father passed away in 1999, she applied for compassionate appointment in 2000.
• Although the engineer-in-chief and the state government had approved her appointment in principle, the authorities later denied her employment on the grounds that she married in 2006.
• Feeling aggrieved, she approached the high court.
• The counsel for the petitioner argued that the marriage as such should not disable a person from claiming compassionate appointment.
• It was submitted that the impugned order violated gender equality, inasmuch as married sons of deceased employee can stake such claims.
• On the other hand, the counsel for the state pointed out that under the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, compassionate appointment can be availed by the bereaved family members on the death of the bread-winning employee.
• It was submitted that a married daughter does not fall within the said definition.

Court’s findings

• The petitioner’s claim for compassionate appointment duly made in time came to be rejected only on the ground that she got married in 2006.
• A son or daughter of a deceased employee “cannot endlessly wait for the authorities to take the decision on the claim for compassionate appointment, inasmuch as aging being an inevitable consequence of run of the time, cannot be halted merely because the authorities are sleepy and tardy.”
• The claim was made in the year 2000, the employee died on December 20, 1999, and the petitioner was not married for more than six years after she staked claim to the job.
• Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, do not say that the claimant, who is otherwise eligible and qualified, would cease to be so if marriage is contracted subsequently.
• The right to marry, subject to applicable conditions, is an important facet of fundamental Right to Life and Liberty, guaranteed under Article 21 of the Constitution.
• The makers of our Constitution have enshrined inter alia gender neutrality vide Article 14 in general and Articles 15 and 16 in particular.
• Our Smrutikaaraas (ancient lawgivers) said, ‘Yatra naarayaastu pujyante ramante tatra devatah; yatraitaastu na pujyante sarvaastatra falaah kriyaah’, meaning that where women are honoured, divinity dwells there; where dishonoured, all actions, no matter how noble, remain unfruitful.
• For compassionate appointment, women, i.e., daughters constitute one homogenous class and that excluding married daughters would create an “artificial class” within the class and therefore, would fall foul of the doctrine of equality enshrined in Part III of the Constitution.
• The engineer-in-chief had sent the proposal for compassionate appointment of the petitioner seeking approval of the government.
• The additional secretary to the government granted approval to the said proposal, and that was conveyed to the engineer-in-chief by the additional secretary to the government vide letter dated April 6, 2010. It is not that the authorities did not have knowledge of the petitioner’s marriage.
• The “enormity of mindlessness” the government and its functionaries conduct public affairs with would “bewilder any sensible mind”.

Directions

• The impugned order, rejecting the petitioner’s claim for compassionate appointment, is quashed and the state authorities are directed to grant compassionate appointment to the petitioner within eight weeks.
• The delay would attract an additional levy of Rs 500 per day, which shall be payable to the petitioner. The amount is to be recovered personally from the erring officials of the department, in accordance with the law.