Case BriefsHigh Courts

Rajasthan High Court: The present petition challenges the position of law prior to the amendment of Rule 2(c) of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996, which excludes the married daughter from the definition of ‘dependent’, for the purpose of compassionate appointment vide Notification dated 28-10-2021, a 3-Judge-Bench of Sandeep Mehta, Vijay Bishnoi and Arun Bhansali, JJ. held that the provision of Rule 2(c) of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996, which exclude the married daughter from definition of dependent prior to its amendment vide notification dated 28.10.2021, is discriminatory and violative of Articles 14 to 16 of the Constitution of India and as such, the word ‘unmarried’ from the definition of ‘dependent’, is struck down. Further, in Rule 5 of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 also the word unmarried daughters/adopted unmarried daughter, shall be read as daughters/adopted daughter.

Factual Background

In the present case, dependents/ married daughters seek compassionate appointment after the death of their respective parents who were in government services. The grievance arises from the denial by the authorities rendering these dependents ineligible for such an appointment. This is premised on the fact that the death of the parents occurred before the provision got amended.

The amended provision includes married daughter in the term ‘dependents’ however prior to amendment such was not the case.

It is pertinent to note that the provision i.e., Rule 2(c) of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 which defines ‘dependent’, stands amended w.e.f. 28-10-2021, wherein the married daughter has also been included in the definition, subject to certain conditions, however the aggrieved dependents were rejected to exercise the right under the amended provision.

Thus, the present case was filed combining two other petitions involving the same grievance that forms the subject matter of the question of law.

Issue Under Consideration

The Court examined all previous judicial discussions while dealing with a similar issue and noted that apparently, the issue of exclusion of married daughter, only on account of her marital status in contradistinction to that of a married son and/or unmarried daughter, has not been examined so far, on the touchstone of Articles 14 to 16.

Analysis

The Division Bench of Allahabad High Court while striking down the exclusion of married daughters from the ambit of the expression “family” in Rule 2(c) of Dying-in-Harness Rules, in Vimla Srivastava v. State of UP, 2015 SCC OnLine All 6776, held

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 affected 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.

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 Supreme Court in State of Karnataka v. C.N. Apporva Shree, Special Leave to Appeal (C) No.20166 of 2021 decided on 17-12-2021 has approved the view of Karnataka High Court noticing the judgment in the case of Bhuvaneshwari V. Puranik v. State of Karnataka, 2020 SCC OnLine Kar 3397, by way of a reasoned order and, therefore, striking down the provision restricting the definition to ‘unmarried daughter’.

Karnataka High Court held that without a shadow of doubt the words unmarried were discriminatory and struck down the word ‘unmarried’ in the Rule.

The Court emphasized a Supreme Court ruling in Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai, (1987) 2 SCC 278, wherein it was observed that a daughter after marriage does not cease to be a daughter of the father/mother and it is an equal moral obligation of both son and daughter to maintain their parents u/Section 125 CrPC.

Even under Maintenance and Welfare of Parents and Senior Citizens Act, 2007, equal duty on both sons and daughters to take care and maintain the parents has been placed and, therefore, the purported assumption in seeking to distinguish a married son from a married daughter for the purpose of grant of compassionate appointment, cannot be sustained.

Decision

The Court thus held that marriage by itself cannot be a disqualification and, therefore, the definition barring a married daughter from seeking compassionate appointment merely on the ground of her marriage is apparently arbitrary and violative of Articles 14, 15 and 16(2).

However, the Court remarked that there is no dispute as to which Principles/parameters have to be strictly followed by the Courts, while dealing with cases where the married daughter is included in definition.

The Court concluded that the use of word ‘unmarried’ in Rule 2(c) of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 depriving a married daughter from right of consideration for compassionate appointment, violates the equality clause and cannot be countenanced.

Overruled Decision

Counsel for the respondent-State opposed the petition while heavily relying on judgment Sumer Kanwar v. State of Rajasthan, 2011 SCC OnLine Raj 3128 wherein the Division bench held

A married daughter cannot be said to be dependent on the deceased employee. The definition of dependent is with a view to give appointment to spouse, son, unmarried or widowed daughter, widow, etc. who are real dependents of the deceased. Such matters are within the purview of the policy of the State Government.

Exclusion of married daughter from the purview of dependents is appropriate. She is not dependent on premarital family. It is trite law that Courts cannot enlarge scope of such policy/rules. It is not for the Court to rewrite the policy/rules. The provision of Rule 2(c) cannot be said to be illegal or arbitrary in any manner.”

In this light, the Court held the judgment in the case of Sumer Kanwar (supra) and all other judgments, which have followed the judgment in the case of Sumer Kanwar (supra), upholding the denial of compassionate appointment to married daughter, are overruled.

Implication of the Decision

On apprehensions laid down by various counsels regarding the consequence of striking down of the word ‘unmarried’, the Court observed that the same are apparently misplaced as merely on account of quashing of the word ‘unmarried’ from the definition, by itself cannot revive the concluded cases wherein the appointments have already been accorded in terms of the existing provisions.

The Court thus directed that on account of striking down of the word ‘unmarried’ from the definition’

(i) the same shall not affect any case, wherein compassionate appointment has already been granted under the provisions as they stood before this order;

(ii) the same by itself would not provide a cause of action to any applicant and would apply to cases which are either pending before the competent authority and/or to the cases where litigation is pending on the date of this order only;

(iii) the provisions and other requirements of the definition regarding the applicant being wholly dependent on the deceased government servant at the time of his/her death would be scrupulously applied;

(iv) all the parameters as laid down by Hon’ble Supreme Court for grant of compassionate appointment, shall also be scrupulously followed and that

(v) all other provisions of the Rules except the inclusion of the ‘married daughter’ in the definition of ‘dependent’, shall have full application

[Priyanka Shrimali v. State of Rajasthan, 2022 SCC OnLine Raj 1479, decided on 13-09-2022]


Advocates who appeared in this case:

Members of the Bar present before the Court:

Mr. Vinay Jain, Dr. Nupur Bhati, Mr. Harish Purohit, Mr. M.S. Purohit, Mr. Rakesh Kalla, Mr. Manish Pitaliya, Mr. Subhankar Johari, Mr. Vikas Bijarnia, Mr. Vivek Mathur, Mr. Hanuman Singh Choudhary, Mr. Amit Kumar Purohit, Mr. D.D. Purohit, Mr. Narayan Yadav, Mr. Lalit Parihar, Mr. Rishabh Tayal, Mr. Jitendar Choudhary, Mr. Kuldeep Vaishnav, Mr. V.D. Vaishnav, Mr. Vikram Singh, Mr. Arpit Samariya, Mr. Virendra Agarwal, Mr. G.S. Rathore, Mr. Hari Singh Rajpurohit, Mr. Bharat Devasi, Ms. Paru Malik, Mr. Narendra Malik, Mr. Rishabh Purohit, Mr. Pawan Bharti, Mr. M.P. Singh, Mr. Arpit Gupta, Mr. K.D. Dayal, Ms. Adeeti, Ms. Kingal Purohit, Ms. Radhika Vyas, Mr. Manoj Purohit, Mr. RDSS Kharlia, Mr. Naman Bhansali, Mr. S.S. Choudhary, Mr. Vishal Singhal, Mr. K.S. Sisodia through V.C., Mr. Kshma Purohit through V.C., Mr. Manish Vyas, AAG with Mr. Kailash Choudhary, Mr. Sunil Beniwal, AAG, Mr. Sudhir Tak, AAG with Mr. Saransh Vij, Mr. Vikram Choudhary, Mr. R.R. Ankiya, Mr. Avin Chhangani. , Ms. Dimple Chhangani through V.C. , Mr. Parmeshwar Pilania through V.C., Mr. Surya Kant through V.C., Mr. Sayar Gurjar, through V.C.

*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Orissa High Court: A.K. Mohapatra, J. directed to process the application for grant of family pension to the transgender woman as expeditiously as possible preferably within a period of six weeks from the date of communication of a certified copy of the order.

The facts of the case are such that the father of the petitioner late Balaji Kondagari was a Government servant working in Rural Development Department under Executive Engineer RW Division, Rayagada. After the death of late Balaji Kondagari his wife was sanctioned the family pension but after she expired due to old age the present petitioner applied for family pension under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992 i.e Rules 1992 to the Executive Engineer RW Division, Rayagada as petitioner and her sister come under the category of unmarried daughter, widow or divorced daughter and as such eligible to get family pension. The present writ petition was filed by the petitioner with a prayer for a direction to the opposite parties to sanction family pension in favour of the petitioner, who is a transgender (women) and unmarried daughter of late Balaji Kondagari within a stipulated period of time.

Counsel for the petitioner submitted that since the petitioner belongs to transgender community, the authorities are treating the petitioner in a discriminatory manner and not sanctioning the family pension as is due and admissible to her after the death of her parents and is in gross violation of the pension rules as provided under rule 56(5)(d) Rules, 1992.

Rule 56(1) Odisha Civil Services (Pension) Rules provides for pension to specific class of family members of deceased Government employee entering into Government service and was holding a post in a pensionable establishment on or before 01.01.1964 and family pension to specific class of family members of the deceased Government servant, who was a Government servant and retired / died on or before 31.12.1963. Further the Pension Rules, 1992 under Rule 56(5)(d) provides that family pension is also payable in case of any unmarried daughter even after attaining the age of 25 years till her marriage or death whichever is earlier subject to condition that the monthly income of the daughter does not exceed Rs.4,440/- per month from employment in Government, semi Government, statutory bodies, corporation, private sector, self-employment shall be eligible to receive family pension.

The Court relied on judgment NALSA v. Union of India, (2014) 5 SCC 438 has recognized the right of the transgender community as citizens of the country at par with other. It was further stated in the judgment

“135.2 Transgender persons’ right to decide their self identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.”

The Court opined that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992.

The Court directed the authorities to “consider and disburse the family pension within a stipulated period of time.” [Kantaro Kondagari v. State of Odisha, W.P. (C) No.4779 of 2022, decided on 20-05-2022]


Appearances

For Petitioner: Mr Omkar Devdas, S. Dash, A. Suhail and P. Ray

For Opp. Parties: Mr K.K. Nayak


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where a woman had sought compassionate appointment after her mother’s death in the year 2012, the bench of MR Shah* and Anirudhha Bose, JJ has held that the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment and since the word ‘divorced daughter’ has been added to Rule 3 of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996 subsequently by Amendment, 2021, the respondent was not entitled to compassionate appointment.

[Note: Rule 2[1] and Rule 3[2] of the Rules 1996 do not include ‘divorced daughter’ as eligible for appointment on compassionate ground and even as ‘dependent’. The same was added to Rule 3 recently by Amendment, 2021.]

However, as straightforward as the case might look, the facts had a very interesting story to tell.

  • The mother of the original writ petitioner, who was employed with the Government of Karnataka as Second Division Assistant at Mandya District Treasury, died on 25.03.2012. The respondent, at that time, was a married daughter.
  • Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent.
  • By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent.
  • Immediately on the very next day i.e. on 21.03.2013, the respondent, on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground.

Taking note of the aforementioned chronology of dates and events, the Court opined that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground.

Interestingly, the High Court had directed the appointing authority to grant compassionate   appointment to the respondent after interpreting Rule 3 of the Rules, 1996 by putting “divorced daughter” in the same class of an unmarried or widowed daughter.

The said judgment was, however, erroneous as per the ruling in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617, wherein it was held that

(i) the compassionate appointment is an exception to the general rule;

(ii) no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy;

(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

Taking note of point number (v), the Court said that,

“… only ‘unmarried daughter’ and ‘widowed daughter’ who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be ‘dependent’ of a deceased Government servant and that ‘an unmarried daughter’ and ‘widowed daughter’ only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant.”

Calling the High Court’s decision erroneous, the Court said that

“…even if it is assumed that the ‘divorced daughter’ may fall in the same class of ‘unmarried daughter’ and ‘widowed daughter’ in that case also the date on which the deceased employee died, the respondent herein was not the ‘divorced daughter’ as she obtained  the divorce by mutual consent subsequent to the death of the deceased employee.

Hence, the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.

[Director of Treasuries in Karnataka v. V. Somyashree, 2021 SCC OnLine SC 704, decided on 13.09.2021]


[1] 2.   Definitions:­

(1)   In   these   rules, unless the context otherwise requires:­

(a) “Dependent   of   a   deceased   Government servant” means­

(i) in   the   case   of   deceased   male   Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and

(ii) in the case of a deceased female Government servant,   her   widower,   son,   (unmarried daughter   and   widowed   daughter)   who   were dependent upon her and were living with her;

(iii) ‘family’ in relation to a deceased Government servant means his or her spouse and their son,   (unmarried   daughter   and   widowed daughter) who were living with him.

(2)     Words   and   expressions   used   but   not defined shall have the same meaning assigned to   them   in   the   Karnataka   Civil   Services (General Recruitment) Rules, 1977.

[2] Rule 3(2)(ii):­

(ii)   in the case of the deceased female Government servant;

(a) a son;

(b) an   unmarried   daughter,   if   the   son   is   not eligible or for any valid reason he is not willing to accept the appointment;

(c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment.

(d) a widowed daughter, if the widower, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment.


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court by:

For State: Advocate V.N. Raghupathy

For Respondent: Advocate Mohd. Irshad Hanif

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., while setting aside the orders pronounced by the Courts below observed that,

“the law already gives a remedy to claim maintenance to a daughter under the provisions of Hindu Adoption and Maintenance Act even if she is a major by age and unmarried and dependent on her father.”

The instant application was moved by the applicant–father under the provision of Section 482 of the Code of Criminal Procedure, 1973 questioning the Judicial Magistrate’s Order allowing interim maintenance under Section 125 CrPC.

Applicant’s Counsel, Runwal invited the Court’s attention to Section 125 of CrPC, particularly clause (b) & (c) of sub-section 1.

According to the counsel, the father has an obligation to maintain the daughter who is not married, however, the said provision does not confer any right in major daughter to claim an interim after such daughter attains majority and if she is physically or mentally not suffering from any abnormality or injury.

Court’s attention to the provisions of Section 20 of the Hindu Adoption and Maintenance Act was also invited. Further, he relied on the decision of Supreme Court in Abhilasha v. Prakash, 2020 SCC OnLine SC 736.

Respondent — Daughter urged that the act of trial court of not deciding the application for maintenance for years together cannot be viewed or come to the help of the applicant particularly when Statute contemplates an obligation on the applicant-father to pay maintenance to a minor daughter pursuant to the provisions of Section 125(1) of CrPC.

Analysis and Decision

If the scheme of clause (c) of sub-section (1) of Section 125 of CrPC is considered, what is appreciated is, legitimate or illegitimate child (not being a married daughter) who has attained majority who by reason of any physical or mental abnormality or injury, if unable to maintain herself, can claim maintenance from father or a person who has sufficient means and who has neglected or refused to maintain.

What is required to be appreciated in the instant case is that even if the respondent — daughter who has attained majority and she is already getting expenses as was ordered in proceedings under the Hindu Marriage Act and interim maintenance.

In accordance with the Supreme Court decision in Abhilasha v. Prakash, 2020 SCC OnLine SC 736, it was made clear that under Section 20 of the Hindu Adoption and Maintenance Act, right of an unmarried daughter to claim maintenance from her father when she is unable to maintain herself is absolute. Such right is granted under the personal law which such daughter has every right in law to enforce against her father. As such, right under Sub-section 3 of Section 20 of the said provisions is recognized to be existing to claim maintenance after she attains majority till her marriage, from her father.

“Unmarried daughter is entitled to claim maintenance from her father till she is married even though she has become major which right is recognized under Section 20 (3) of the Hindu Adoption and Maintenance Act.”

Court stated that a daughter can claim maintenance under the Hindu Adoption and Maintenance Act even if she is major by age and unmarried and dependent on her father.

Magistrate failed to appreciate the above-stated intricacies of the provisions of Section 125(1)(c) of CrPC and right of a daughter under Section 20(3) of the Hindu Adoption and Maintenance Act.

Further, the Bench observed that the Courts below committed an error in awarding interim maintenance to major daughter in the exercise of powers under Section 125 CrPC.

Hence, in view of the above, the present application needs to be allowed.[Sanjay J. Phagnekar v. State of Maharashtra, 2020 SCC OnLine Bom 3382, decided on 23-11-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan. R. Subhash Reddy and MR shah, JJ has held that an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Hindu Adoptions & Maintenance Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956.

BACKGROUND OF THE CASE

The Court was hearing a case wherein a woman had filed an application under Section 125 CrPC against her husband, claiming maintenance for herself and her 3 children. While the Judicial Magistrate dismissed the application under Section 125 Cr.P.C. of the applicant and 2 of her children, the daughter’s application was allowed for grant of maintenance till she attains majority. The High Court dismissed the application filed under Section 482 Cr.P.C. of the appellant on the ground that since appellant has attained majority and is not suffering from any physical or mental abnormality, she is not entitled for any maintenance.

Senior Advocate Vibha Datta Makhija, appearing for the appellant submitted that even though the appellant had attained majority in 2005 but since she is unmarried, she is entitled to claim maintenance from her father. It was further contended that High Court committed error in dismissing the application filed under Section 482 Cr.P.C. of the appellant on wrong premise that since appellant has attained majority and is not suffering from any physical or mental abnormality, she is not entitled for any maintenance.

According to the respondents, as per Section 125 Cr.P.C., entitlement to claim maintenance by daughter, who has attained majority is confined to case where the person by reason of any physical or mental abnormality or injury unable to maintain herself and hence, High Court has rightly dismissed the application filed under Section 482 Cr.P.C. of the appellant since no case was made out to interfere in orders passed by the Judicial Magistrate and learned Revisional Court in exercise of jurisdiction under Section 482 Cr.P.C.

DISCUSSION ON SECTION 125 CRPC vis-à-vis SECTION 20 OF HAMA, 1956

“The maintenance as contemplated under Act, 1956 is a larger concept as compared to concept of maintenance under Section 125 Cr.P.C..”

On scope of Section 20(3) of HAMA, 1956

Hindu Law prior to enactment of HAMA, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20 of HAMA, 1956. Hence, Section 20(3) of HAMA, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property.

“The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father.”

On scope of Section 125 CrPC

By virtue of Section 125(1)(c), an unmarried daughter even though she has attained majority is entitled for maintenance, where such unmarried daughter is by reason of any physical or mental abnormality or injury is unable to maintain itself.

“The Scheme under Section 125(1) Cr.P.C., thus, contemplate that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury, she is unable to maintain herself.”

The purpose and object of Section 125 Cr.P.C. as noted above is to provide immediate relief to applicant in a summary proceedings, whereas right under Section 20 read with Section 3(b) of HAMA, 1956 contains larger right, which needs determination by a Civil Court, hence for the larger claims as enshrined under Section 20, the proceedings need to be initiated under Section 20 of the Act and the legislature never contemplated to burden the Magistrate while exercising jurisdiction under 34 Section 125 Cr.P.C. to determine the claims contemplated by Act, 1956.

CONCLUSION

On facts, the Court noticed that since the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, the Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956. Hence, there is no infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major.

The Court, however, gave liberty to the appellant to take recourse to Section 20(3) of the Act, 1956 for claiming any maintenance against her father.

[Abhilasha v. Prakash,  2020 SCC OnLine SC 736 , decided on 15.09.2020]