Alok Mathur, J
1. Heard Sri O. P. Tiwari, learned counsel for the petitioner, learned Standing counsel for respondent No.s 1 and Sri Rakesh Kumar Chaudhary for respondent No.s 2 to 5.
2. The short counter affidavit filed on behalf of respondent No.2 and its rejoinder affidavit filed today in the Court are taken on record.
3. With the consent of the parties the petition is being decided at the admission stage itself.
4. By means of the present writ petition the petitioner has assailed the order dated 29.6.2021 as well as the order dated 1.7.2022 passed by opposite party No.2 i.e. Secretary, Uttar Pradesh Cooperative Institutional Services Board, Lucknow thereby rejecting the claim of the petitioner for appointment under Dying in Harness Rules.
5. It is submitted on behalf of the petitioner that her father Sri Sunil Kumar Mishra, who was working on Class IV Post in District Cooperative Bank, died during service on 7.1.2021 leaving behind the petitioner and his widow. It is stated that the mother of the petitioner is also a cancer patient and the petitioner, who is a married lady is living with her mother and looking after after her. It is stated that due to sudden demise of father of the petitioner the family has fallen into financial destitution and, hence, according to Regulation 104 (V) of Uttar Pradesh Cooperative Society Employees' Service Regulation 1975 (hereinafter referred to as the Regulations of 1975) which provides for compassionate appointment, the petitioner made an application on 1st March, 2021 for compassionate appointment. It has further been submitted that the petitioner had annexed all the relevant documents for due consideration for such appointment. The case of the petitioner was considered and forwarded to the Bank Managing Committee and subsequently has been rejected by means of the impugned order solely on the ground that the petitioner is a married daughter of the deceased employee and is not included in the definition of the family as per note appended to Rule 104 of the Regulations of 1975.
6. It is stated that the petitioner being aggrieved of the aforesaid order has approached this Court challenging the impugned order whereby her candidature has been rejected and has further assailed the validity of Rule 104 (v) of the the Regulations of 1975 in as much as married daughter would be included in the definition of daughter and such a discrimination on the face of it is illegal and arbitrary.
7. It has been submitted that according to the note appended to Regulation 104 of the Regulations of 1975 ''the family, for the purposes of this Regulation, shall include wife/husband, sons and unmarried or widowed daughters of the deceased employee.' It is stated that just because of the fact that unmarried and widow daughters only are included in the said definition and the petitioner being married daughter has been held to be excluded from the definiton of family.
8. Sri Rakesh Kumar Chaudhary appearing for the respondents i.e. Cooperative Institutional Services Board has supported the impugned order and submitted that there is no infirmity in the same in as much as the service Regulations of 1975 do not included a married daughter in the definition of the family and, hence, there is no infirmity in the impugned order by which the claim of the petitioner for compassionate appointment has been rejected. He has further submitted that in the counter affidavit filed by respondent No.2 it has been stated that U.P. Cooperative Institutional Services Board had already proposed an amendment to the definition of the family in the Regulation 1975 to the effect that married daughter be also included in the definition of the family. He has annexed a copy of the letter dated 22.9.2022 along with the proposed amendment. He has further submitted that had the amendment been allowed and incorporated in the Service Regulations then the claim of the petitioner could have been accepted but prior to its approval and incorporation in the said Regulations there is no infirmity in the rejection of the claim of the petitioner.
9. I have heard learned counsel for the parties and perused the record.
10. The only question which falls for determination before this Court is as to whether married daughter would fall into the definition of family. The note appended to Rule 104 of the Regulations of 1975 is quoted as under:-
" Note. The family, for the purposes of this Regulation, shall include the wife / husband, sons and unmarried or widowed daughters of the deceased employee."
11. This question has been elaborately considered by a Division Bench of this Court in the case of Smt. Vimla Srivastava Vs. State of U.P. and others, 2016 (2) ESC 660 (All. (DB) where a similar provision which had occurred in the Uttar Pradesh Dying in Harness Rules, 1974 came under the scrutiny of the Division Bench of this Court where also the married daughter was not included in the definition of the family. This Court held the said provision to be iin violation of the provisions of the Constitution as well as arbitrary and and held that married daughter would fall within the ambit of explanation ''family'. For the sake of convenience the relevant paragraphs of the said judgment are quoted as under:-
"9. While assessing the rival submissions, it must be noted at the outset that the definition of the expression "family" in Rule 2 (c) incorporates the categories of heirs of a deceased government servant. Among them are the wife or husband, sons and adopted sons, unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law. Clause (ii) of Rule 2 (c) brings a son as well as an adopted son within the purview of the expression "family" irrespective of marital status. A son who is married continues to be within the ambit of the expression "family" for the purpose of Rule 2 (c). But by the stroke of a legislative definition, a daughter who is married is excluded from the scope and purview of the family of a deceased government servant unless she falls within the category of a widowed daughter. The invidious discrimination that is inherent in Rule 2 (c) lies in the fact that a daughter by reason of her marriage is excluded from the ambit of the expression "family". Her exclusion operates by reason of marriage and, whether or not she was at the time of the death of the deceased government servant dependent on him. Marriage does not exclude a son from the ambit of the expression "family". But marriage excludes a daughter. This is invidious. A married daughter who has separated after marriage and may have been dependent on the deceased would as a result of this discrimination stand excluded. A divorced daughter would similarly stand excluded. Even if she is dependent on her father, she would not be eligible for compassionate appointment only because of the fact that she is not "unmarried". The only basis of the exclusion is marriage and but for her marriage, a daughter would not be excluded from the definition of the expression "family".
10. The issue before the Court is whether marriage is a social circumstance which is relevant in defining the ambit of the expression "family" and whether the fact that a daughter is married can constitutionally be a permissible ground to deny her the benefit of compassionate appointment. The matter can be looked at from a variety of perspectives. Implicit in the definition which has been adopted by the state in Rule 2 (c) is an assumption that while a son continues to be a member of the family and that upon marriage, he does not cease to be a part of the family of his father, a daughter upon marriage ceases to be a part of the family of her father. It is discriminatory and constitutionally impermissible for the State to make that assumption and to use marriage as a rationale for practicing an act of hostile discrimination by denying benefits to a daughter when equivalent benefits are granted to a son in terms of compassionate appointment. Marriage does not determine the continuance of the relationship of a child, whether a son or a daughter, with the parents. A son continues to be a son both before and after marriage. A daughter continues to be a daughter. This relationship is not effaced either in fact or in law upon marriage. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed or defined by marital status. The State has based its defence in its reply and the foundation of the exclusion on a paternalistic notion of the role and status of a woman. These patriarchal notions must answer the test of the guarantee of equality under Article 14 and must be held answerable to the recognition of gender identity under Article 15.
11. The stand which has been taken by the state in the counter affidavit proceeds on a paternalistic notion of the position of a woman in our society and particularly of the position of a daughter after marriage. The affidavit postulates that after marriage, a daughter becomes a member of the family of her husband and the responsibility for her maintenance solely lies upon her husband. The second basis which has been indicated in the affidavit is that in Hindu Law, a married daughter cannot be considered as dependent of her father or a dependent of a joint Hindu family. The assumption that after marriage, a daughter cannot be said to be a member of the family of her father or that she ceases to be dependent on her father irrespective of social circumstances cannot be countenanced. Our society is governed by constitutional principles. Marriage cannot be regarded as a justifiable ground to define and exclude from who constitutes a member of the family when the state has adopted a social welfare policy which is grounded on dependency. The test in matters of compassionate appointment is a test of dependency within defined relationships. There are situations where a son of the deceased government servant may not be in need of compassionate appointment because the economic and financial position of the family of the deceased are not such as to require the grant of compassionate appointment on a preferential basis. But the dependency or a lack of dependency is a matter which is not determined a priori on the basis of whether or not the son is married. Similarly, whether or not a daughter of a deceased should be granted compassionate appointment has to be defined with reference to whether, on a consideration of all relevant facts and circumstances, she was dependent on the deceased government servant. Excluding daughters purely on the ground of marriage would constitute an impermissible discrimination and be violative of Articles 14 and 15 of the Constitution.
12. A variety of situations can be envisaged where the application of the rule would be invidious and discriminatory. The deceased government servant may have only surviving married daughters to look after the widowed parent - father or mother. The daughters may be the only persons to look after a family in distress after the death of the bread earner. Yet, under the rule, no daughter can seek compassionate appointment only because she is married. The family of the deceased employee will not be able to tide over the financial crisis from the untimely death of its wage earner who has died in harness. The purpose and spirit underlying the grant of compassionate appointment stands defeated. In a given situation, even though the deceased government employee leaves behind a surviving son, he may not in fact be looking after the welfare of the surviving parents. Only a daughter may be the source of solace - emotional and financial, in certain cases. These are not isolated situations but social realities in India. A surviving son may have left the village, town or state in search of employment in a metropolitan city. The daughter may be the one to care for a surviving parent. Yet the rule deprives the daughter of compassionate appointment only because she is married. Our law must evolve in a robust manner to accommodate social contexts. The grant of compassionate appointment is not just a social welfare benefit which is allowed to the person who is granted employment. The purpose of the benefit is to enable the family of a deceased government servant, who dies in harness, to be supported by the grant of compassionate appointment to a member of the family. Excluding a married daughter from the ambit of the family may well defeat the object of the social welfare benefit.
13. The living tree - the Constitution - on which the law derives legitimacy is a liberal instrument for realising fundamental human freedoms. The law and the Constitution must account for multiple identities. Individuals - men and women - have multiple identities : as a worker in the work place; as a child, parent and spouse; identities based on preferences and orientation; those based on language, religion and culture. But from a constitutional perspective, they are protected and subsumed in the overarching privileges of citizenship and in the guarantee of individual freedoms.
14. In the judgment of this Court in Isha Tyagi vs. State of U.P.2, a Division Bench considered the legality of a condition which was imposed by the State Government while providing horizontal reservation to descendants of freedom fighters. The condition which was imposed by the State excluded the children of the daughter of a freedom fighter from seeking admission to medical colleges in the State under an affirmative action programme. Holding this to be unconstitutional, the Division Bench held as follows:
"It would be anachronistic to discriminate against married daughters by confining the benefit of the horizontal reservation in this case only to sons (and their sons) and to unmarried daughters. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter ceases to be a part of the family of her parents upon her marriage must undergo a rethink in contemporary times. The law cannot make an assumption that married sons alone continue to be members of the family of their parents, and that a married daughter ceases to be a member of the family of her parents. Such an assumption is constitutionally impermissible because it is an invidious basis to discriminate against married daughters and their children. A benefit which this social welfare measure grants to a son of a freedom fighter, irrespective of marital status, cannot be denied to a married daughter of a freedom fighter."
15. Dealing with the aspect of marriage, the Division Bench held as follows:
"Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasise that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status."
16. The principles underlying Articles 14 and 15 of the Constitution have an important bearing on gender identity. In C.B. Muthamma vs. Union of India3, the Supreme Court considered the legality of a rule in the Indian Foreign Service (Conduct and Discipline) Rules under which a woman member of the service was required to obtain the permission of the Government before her marriage was solemnized and could be required to resign from service after her marriage, if the Government was satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service. The Supreme Court held that "If a married man has a right, a married woman, other things being equal, stands on no worse footing". In the meantime the Central Government had indicated that the rule was being reconsidered and its deletion was being gazetted.
17. In Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai4, the Supreme Court held in the context of the provisions of Section 125 of the Code of Criminal Procedure 1973 that "a daughter after her marriage does not cease to be a daughter of the father or mother".
18. The same principle was applied in Githa Hariharan vs. Reserve Bank of India5 while defining the ambit of the expression "the father, and after him, the mother" in Section 6(a) of the Hindu Succession Act, 1956. The Supreme Court observed that if the word 'after' was read to mean that a mother would be disqualified from acting as a guardian of a minor during the lifetime of the father, this would run counter to the constitutional mandate of gender equality and will lead to an impermissible differentiation between males and females. Interpreting the word 'after', the Supreme Court held that it does not necessarily mean after the death of the father but would mean in the absence of, whether temporary or otherwise or in a situation of the apathy of the father or his inability to maintain the child.
19. In Savita Samvedi vs. Union of India6, the Supreme Court considered the validity of a circular of the Railway Board by which a railway servant who is an allottee of service accommodation was entitled to nominate, while retiring from service, a son or unmarried daughter among other persons for allotment of the accommodation on out-of-turn basis. Holding that the circular (insofar as it precluded the nomination of a married daughter for allotment of accommodation) violated Article 14, the Supreme Court observed as follows:
"... If he has only one married daughter, who is a railway employee, and none of his other children are, then his choice is and has to be limited to that railway employee married daughter. He should be in an unfettered position to nominate that daughter for regularization of railway accommodation. It is only in the case of more than one children in Railway service that he may have to exercise a choice and we see no reason why the choice be not left with the retiring official's judgment on the point and be not respected by the railway authorities irrespective of the gender of the child. There is no occasion for the railways to be regulating or bludgeoning the choice in favour of the son when existing and able to maintain his parents. The Railway Ministry's Circular in that regard appears thus to us to be wholly unfair, gender biased and unreasonable, liable to be struck down under Article 14 of the Constitution. The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit of the earlier part of the Circular, referred to in its first paragraph, above-quoted."
20. In Air India Cabin Crew Assn. vs. Yeshaswinee Merchant7, the Supreme Court dealt with the prohibition under Article 15(2) on discrimination on the ground only of sex. Interpreting the provisions of Articles 15 and 16, the Supreme Court held that the constitutional mandate would be infringed where a woman would have received the same treatment as a man but for her sex.
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26. 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.
27. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.
28. In consequence, we direct that the claim of the petitioners for compassionate appointment shall be reconsidered. We clarify that the competent authority would be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioners shall not be excluded from consideration only on the ground of their marital status."
12. Considering the aforesaid judgment this Court is of the considered opinion that the said judgment passed in the case of Vimla Srivastava (Supra) squarely applies to the facts of the present case. The definition of family occurring in the Dying in Harness Rules, 1974 is pari materia with Note appended to Regulation 104 of the Regulations of 1975 and the definition of family included the daughter but excluded married daughter.
13. This Court in the aforesaid Full Bench has not accepted the stand of the State which proceeds on a paternalistic notion of the position of a woman in our society and particularly of the position of a daughter after marriage. The assumption that after marriage, a daughter cannot be said to be a member of the family of her father or that she ceases to be dependent on her father irrespective of social circumstances cannot be countenanced. The test in matters of compassionate appointment is a test of dependency within defined relationships. There are situations where a son of the deceased government servant may not be in need of compassionate appointment because the economic and financial position of the family of the deceased are not such as to require the grant of compassionate appointment on a preferential basis. But the dependency or a lack of dependency is a matter which is not determined a priori on the basis of whether or not the son is married. Similarly, whether or not a daughter of a deceased should be granted compassionate appointment has to be defined with reference to whether, on a consideration of all relevant facts and circumstances, she was dependent on the deceased government servant. Excluding daughters purely on the ground of marriage would constitute an impermissible discrimination and be violative of Articles 14 and 15 of the Constitution.
14. Accordingly, it is held that exclusion of married daughter from the ambit of family in the Note appended in sub clause (V) in Regulation 104 of the Regulations of 1975 is illegal, unconstitutional and violative of Articles 14 and 16 of the Constitution of India. Accordingly, the word 'unmarried' in the said Note is struck down.
15. The impugned orders dated 29.6.2021 and 1.7.2022 passed by opposite party No.2 are quashed.
16. A direction is issued to the respondents to consider the claim of the petitioner for compassionate appointment again in light of the decision of the Full Bench in the case of Vimla Srivastava (supra) as well as the directions issued hereinabove and the case of the petitioner would not be rejected merely on the ground that she is a married daughter.
17. In light of the above, the writ petition stands allowed.
