Article Rule denying compassionate appointment to adopted daughter is illegal

>>> Rule denying compassionate appointment to adopted daughter is illegal, against the provisions of Constitution of Republic of India.

>>> Why legally adopted female children are not given the same benefit?

>>> The clause which limits compassionate employment being given only to legally adopted male children is 6 violative of Article 14 and 16 of the Constitution of India

>>> In Republic of India woman is worshipped in the form of  Shakti/Goddess.

It is unfortunate that we don’t want to give employment to women.

We prostrate to worship in temples raised in the name of Devi, bow before goddess (god in female form) to get our interests  and wishes fulfilled.

But when it comes to giving rights to woman, we don’t want to surrender.

Why we don’t want to give the same rights to woman that are given to other ‘s in society, while we worship woman as ‘Goddess’.

It would not be an exaggeration to say that a society that does not respect its women cannot be treated to be civilized.

In the first part of the last century Swami Vivekananda had said: Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.”

The Apex Court has clearly held that there should be provision for reservation even for persons belonging to the third gender. When our jurisprudence is evolving to such an extent, it is indeed a very sad state of affairs that we are denying opportunities of employment to women only on the ground of gender and nothing else.

>>> The Chief Justice made the soul stirring and scathing remarks on employer that came with appeal to deny right of ‘Compassionate Appointment’ to adopted daughter, and to declare adopted daughter ineligible for of ‘Compassionate Appointment’.

The Chief Justice and High Court declared such rule that denies ‘Compassionate Appointment’ to ‘Adopted Daughter’; “Illegal”, against the provisions of Constitution of Republic of India.

>>> THE CONSTITUTION OF INDIA:

Article 12. In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Article 14. Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

Article 16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State

Article243D, 243T Provide for reservation of seats for women……………

Article 309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor 2*** of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act

>>> The 73rd and 74th Amendments of the Constitution which deal with the  reservation of women has the avowed purpose, that is, the women should become parties in the decision-making process in a democracy that is governed by the rule of law. Their active participation in the decision making process has been accentuated upon and the secondary role which was historically given to women has been sought to be metamorphosed to the primary one.

The sustenance of gender justice is the cultivated achievement of intrinsic human rights.

Equality cannot be achieved unless there are equal opportunities and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity.

>>> it is the duty of the State to promote justice, to provide equal opportunity to all citizens and see that they are not deprived of by reasons of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood.

It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

There cannot be any discrimination solely on the ground of gender.

>>> The Apex Court has clearly held that there cannot be any discrimination solely on the ground of gender

>>> As it can be seen in:

The Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 have been framed under the proviso to Article 309 of the Constitution and regulate the grant of compassionate appointment to the members of the family of a government servant who dies in harness.

The Rules define the expression "family" to include, among others, "unmarried daughters and unmarried adopted daughters".

Here Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 include: unmarried adopted daughters, for compassionate appointment.

The issue before court was that married daughter is no more part of the father’s family and eligible for compassionate appointment.

The Bench of High court decided that: “In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution.

We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.

Allahabad High Court
Smt. Vimla Srivastava vs State Of U.P. And Another on 4 December, 2015
Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Yashwant Varma

This judgment implies that even an adopted daughter  (married ) shall be eligible for compassionate appointment.

>>> Whereas;  Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 include: unmarried adopted daughters, for compassionate appointment.

>>> The Clause 9.3.3 of the National Coal Wage Agreement framed by the appellants provides that employment can be granted on compassionate basis to the following categories of dependents: i) Spouse; ii) Unmarried daughter

And does not include adopted daughter.

>>> The adopted daughter of employee dying in harness approached Jharkhand high Court.

3. The challenge in this appeal is to the judgment delivered by a learned  Single Judge of this Court whereby he held that the clause discriminating between legally adopted son and legally adopted daughter violates Article 14 of the Constitution of India, and therefore, even the adopted daughter would be a daughter entitled to claim compassionate appointment under the Scheme for grant of compassionate appointment to dependents of a workman, who dies while in service.

4. Clause 9.3.3 of the National Coal Wage Agreement framed by the appellants provides that employment can be granted on compassionate basis to the following categories of dependents:

 i) Spouse; ii) Unmarried daughter; iii) Son; iv) Legally adopted son.

5. The argument before the learned Single Judge was that there cannot be any discrimination between the legally adopted son or a legally adopted daughter.

The learned Single Judge came to the conclusion that the differentiation between the legally adopted son and the legally adopted daughter has been made only on the ground of gender and is, therefore, hit by the Article 14 of the Constitution of India.

He, therefore, held as follows: “15. Thus, only reason surfacing on the records of the case is that the discrimination is based solely upon sex and nothing more.

16. This is constitutionally impermissible in view of provision contained in Article 16 of the Constitution which provides for equality of opportunity in the matter of public employment and mandates that no discrimination shall be practiced only on the ground of sex. While protective discrimination is constitutionally permissible in view of provision contained in Article 14, 15 & 16 in favour of women and children, exclusion of an adopted daughter while keeping an adopted son as a dependent is clearly violative of constitutional principle. It is quite unfortunate that despite plethora of judicial pronouncement of the Hon'ble Supreme Court deprecating general discrimination in every form, such kind of  discriminatory practice are still prevalent in various public institution like the respondents which is a subsidiary Coal Company undoubtedly state under Article 12 of the Constitution of India.”

6. It would be pertinent to mention that a learned Single Judge of this Court, in W.P.(S) No.296 of 2014 (Smt. Sarojni Bhoi vs. State of Chhattisgarh and others, decided on 30.11.2015) has already held that even a married daughter is entitled to claim compassionate employment and cannot be discriminated against, relying upon various judgments of the Apex Court.

7. In Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125, the Apex Court, dealing with the role of women, held as follows:
“28.................. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, Indignities, inequality and discrimination.”

8. In yet another decision rendered in the matter of Air India Cabin Crew Assn. v. Yeshaswineee Merchant, (2003) 6 SCC 277, the Supreme Court authoritatively pronounced that the discrimination based only on sex is not permissible

42. The Constitutional prohibition to the State not to discriminate citizens only on sex, however, does not prohibit a special treatment to the women in employment on their own demand........”

9. While dealing with the role of women, the Supreme Court, in the matter of 4 Voluntary Health Assn. of Punjab v. Union of India, (2013) 4 SCC 1, made the following relevant observation :-

“20. It would not be an exaggeration to say that a society that does not respect its women cannot be treated to be civilised.

In the first part of the last century Swami Vivekananda had said: Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.”

10. The Apex Court in the case of National Legal Services Authority vs. Union of India, 2014 (5) SCC 438, clearly held that there should be provision for reservation even for persons belonging to the third gender. When our jurisprudence is evolving to such an extent, it is indeed a very sad state of affairs that we are denying opportunities of employment to women only on the ground of gender and nothing else.

11. In Charu Khurana v. Union of India, (2015) 1 SCC 192, the Apex Court held in paras 33 & 41 as follows:
“33. …................ On a condign understanding of clause (e), it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced.

41. The aforesaid pronouncement clearly spells out that there cannot be any discrimination solely on the ground of gender…………..”

12. The Apex Court has clearly held that there cannot be any discrimination solely on the ground of gender. As far as the present case is concerned, no ground other than the ground of gender has been pointed out in the stand of Coal India to justify its stand that only legally adopted male children are entitled to compassionate appointment. No reason has been given why legally adopted female children are not given the same benefit. We are, therefore, clearly of the view that this part / clause of the agreement is violative of Article 14 of the Constitution of India because discrimination has been made only on the basis of gender while denying the women the right to employment.

14. In view of above discussion, we are clearly of the view that the learned Single Judge was absolutely right in holding that the clause which limits compassionate employment being given only to legally adopted male children is 6 violative of Article 14 and 16 of the Constitution of India. We uphold the judgment of the learned Single Judge.

15. The appeal has no substance and is devoid of merit. The same is accordingly dismissed. However, the time given to consider the case of the petitioner / appellant for appointment as per the Rules is extended upto 31st March, 2017.

HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 562 of 2016

1. Coal India Ltd. Through Its Chairman 10 Netaji Subhash Road, Kolkata (West Bengal).
2. South Eastern Coalfield Ltd. Through Its Chairman Cum Managing Director, Seepat Road, Bilaspur (Chhattisgarh)
3. General Manager South Eastern Coal Fields Limited, Sohagpur Area, Distt. Shahdol (Madhya Pradesh)
4. Dy. General Manager (Pers.) South Eastern Coalfields Limited, Sohagpur Area Distt. Shahdol (Madhya Pradesh) ---- Appellants

Versus

Miss. Hamshikha Mallick D/o Late R. K. Malick Aged About 19 Years R/o· Qtr. No. B- 200, S E C L, Pragati Nagar, Dipika, Distt. Korba Chhattisgarh. ---- Respondent

Hon'ble The Chief Justice Hon'ble Shri Justice Sanjay Agrawal

Order On Board 06/12/2016
Per Deepak Gupta, C.J

 

Kumar Doab 
on 09 January 2017
Published in Labour & Service Law
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