After All, A Daughter Does Not Cease To Be Daughter After Marriage; Orissa High Court Directs State To Grant Compassionate Appointment Despite 26-Year Delay
Sanchayita Lahkar
The High Court of Orissa Division Bench of Justice Krishna Shripad Dixit and Justice Chittaranjan Dash has directed the State Government to grant a rehabilitative compassionate appointment to the married daughter of a deceased employee who died in harness in 1999, and to issue the appointment within eight weeks. The dispute arose after the petitioner, the deceased worker’s sole daughter, sought compassionate employment but was denied on the ground that she married during the pendency of her claim. The Court set aside the rejection and held that marriage does not sever a daughter’s relationship with her parents and cannot be used to bar her claim when a married son would not be disqualified on that basis.
The petitioner, daughter of a deceased Mazdoor employed under the Chief Construction Engineer, Pateru Irrigation Project, challenged the order of the Orissa Administrative Tribunal dated 08.11.2011, by which her application questioning the rejection of compassionate appointment was dismissed.
Her father had served from 15.07.1969 to 19.12.1999 and died in harness on 20.12.1999, leaving behind his widow and the petitioner. The petitioner applied for compassionate appointment on 21.08.2000 with the widow’s consent. Departmental approvals were conveyed in 2008, 2009, and 2010 subject to document verification. However, her claim was rejected on 09.06.2011 on the ground that she had married in 2006 during the pendency of the claim.
The petitioner contended that marriage could not disqualify her, particularly when married sons were eligible under the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990. The State argued that the Rules defined “family members” to include “unmarried daughters,” and therefore a married daughter was excluded.
The Court recorded, “This is absolutely obnoxious, to say the least, because: immediately after the death in harness, the application for compassionate appointment was made; the Apex Court in a catena of decisions has iterated & reiterated that claims of the kind should be treated on a war-footing so that bereaved of an employee dying in harness will have something to fall back upon…”
The Bench noted, “When the bread winner dies, his family would be in distress both financially & emotionally.” It further stated, “a son or daughter of a deceased-employee cannot endlessly wait for the authorities to take the decision on the claim for compassionate appointment… aging being an inevitable consequence of run of the time; cannot be halted merely because the authorities are sleepy & tardy.” It also recorded, “It is not that the authorities had told the petitioner to defer her marriage till after her claim for compassionate appointment is decided.”
The Court stated, “the claim for compassionate appointment being regulated by the 1990 Rules, has to be decided keeping in view the scenario that obtained when the claim was made, subject to all just exceptions.” It recorded, “These Rules do not say that the claimant, who is otherwise eligible & qualified, would cease to be so if marriage is contracted subsequently.”
The Bench stated, “After all, right to marry, subject to applicable conditions, is an important facet of fundamental right to life & liberty guaranteed under Article 21 of the Constitution of India…” It added, “After all, a daughter does not cease to be daughter after the marriage and she has an obligation to look after her dependent natal family…”
On the definition clause, the Court observed, “Very notably, the term ‘unmarried daughters’ is employed in contra distinction to the term ‘daughters who do not continue to be unmarried’.” It then stated, “Therefore, the authorities could not have rejected petitioner’s claim.”
On equality standards, the Court stated, “Through the UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 injuncts the State parties to practice equality.” It reproduced, “Article 1: All human beings are born free and equal and dignity and rights…” and “Article 2 : Everyone is entitled to all the rights and freedoms… without distinction of any kind…” It also recorded, “The Makers of our Constitution have enshrined inter alia gender neutrality vide Article 14 in general and Articles 15 & 16 in particular.”
The Bench observed, “For the purpose of compassionate appointment, women, i.e., daughters constitute one homogenous class and that excluding the married daughters would create an artificial class within the class and therefore, would fall foul of doctrine of equality enshrined in Part III of the Constitution.”
It recorded, “Articles 10 & 11… (CEDAW)… proscribes discriminatory treatment of women on the ground of marriage, inter alia in matters of profession & employment.” It also quoted the theme text, “Ensuring and strengthening access to justice for all women and girls… eliminating discriminatory laws, policies, and practices, and addressing structural barriers.”
The Court observed: “20(1) No person shall, by marriage, acquire any interest… or become incapable of doing any act… which he or she could have done if unmarried...” It then stated, “If marriage is not a disability for sons of a deceased-employee to stake claim for compassionate appointment, it cannot be a disability for daughters too.” It added, “An idea otherwise would offend the institutions of society such as family, marriage, etc. as obtaining in the civilized world.”
Relying on comparative reasoning, the Bench quoted, “Marriage does not determine the continuance of the relationship of a child with the parent, whether son or a daughter.” It recorded, “Son continues to be a son both before and after marriage and a daughter also should continue to be a daughter both before and after marriage.” It also quoted, “…We give our full imprimatur to the reasoning of the High Court… The Special Leave Petition is dismissed...”
On the administrative handling, the Court stated, “It is not that, the authorities did not have the knowledge of petitioner’s marriage, when all this happened.” It added, “If that be so, how she was denied compassionate appointment remains shrouded in mystery.” The Bench recorded, “What an enormity of mindlessness… would bewilder any sensible mind. What difficulty the bereaved family… underwent all these twenty-five years can only be imagined.”
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The Court directed that “a writ of certiorari issues quashing the impugned order dated 08.11.2011 (Annexure-10) and the Office Order dated 09.06.2011 (Annexure-8) coupled with a writ of mandamus to OPs.1 & 2 to grant compassionate appointment to the petitioner within eight weeks. Delay would attract additional levy of Rs.500/- per day shall be payable to her. That amount be recovered personally from the erring officials of the department, in accordance with law. The compliance report to be filed before the Registrar General of this Court within two weeks following the compliance.”
Advocates Representing the Parties
For the Petitioners: M/s. Samarendra Pattanaik, B.R. Kar, P. Panda & J. Kar, Advocates
For the Respondents: Mrs. Suman Pattanayak, AGA
Case Title: Mani Machha v. State of Odisha & Others
Case Number: W.P.(C) No.32107 of 2011
Bench: Justice Krishna Shripad Dixit and Justice Chittaranjan Dash
