A married daughter is not entitled to compassionate appointment under the policy issued by the Government of West Bengal as per Section 3(c) of the West Bengal Regulation of Recruitment in the State Government Establishment and Establishments of Public Undertaking, Statutory Bodies, Government Companies and Local Authorities Act, 1999.

Arun Mishra, C.J.

1. Heard finally with the consent of the learned Counsel for the parties. The question arises in the intra Court appeal whether married daughter can complain of violation of the provisions of Articles 14 and 15 of the Constitution of India in the matter of compassionate appointment. Challenging the policy providing compassionate appointment to be offered to unmarried daughter depending on the earnings of the deceased employee but not a married daughter.

2. The petitioner Purnima filed an application seeking compassionate appointment. Her father was an employee of Durgapur Project Ltd. He died in harness on 10th June, 1998. She applied for compassionate appointment on 14th January, 2004. Thereafter, she filed a writ petition in this Court being W.P. No. 4511 (W) of 2005 and the same was disposed of vide order dated 28.4.2010 directing the employer to consider the application as per rules and practice for appointment on compassionate ground. The case of the applicant was considered and she was found otherwise suitable for offering compassionate appointment, however, with the rider that her marital status should be checked as the policy provided compassionate appointment to be offered only to dependent "unmarried daughter".

3. Considering the fact that the petitioner was married, after hearing her it was communicated on 17th September, 2010 to her that she could not be appointed in terms of the policy.

4. The policy as notified on 31st March, 2008 by the Government of West Bengal, Department of Power and Non-conventional Energy Sources, which has been issued in exercise of power conferred under Section 3(c) of the West Bengal Regulation of Recruitment in the State Government Establishment and Establishments of Public Undertaking, Statutory Bodies, Government Companies and Local Authorities Act, 1999 read with notification dated 1.11.2007 with respect to the West Bengal Power Development Corporation Ltd., Durgapur Projects Ltd. etc. principles and procedures to be followed in dealing with the issue of appointment on compassionate ground to the dependent of the employee has been laid down in para 2'. Para 2' of the said notification is set out below:

2. One of the dependent of an employee who dies in harness or who retires prematurely on being declared permanently incapacitated may be offered appointment on compassionate ground, subject to the fulfilment of the following conditions:

i) the employee has died, or retired on being permanently incapacitated before completing 20 years of service or before attaining the age of 50 years, whichever occurs earlier,

ii) the family of the deceased or the retired employee as the case may be, is in need of immediate assistance an appointment of a dependent of the employee is absolutely essential for survival of the family.

For the purpose of appointment on compassionate ground in terms of this notification, a dependent shall mean spouse, a son or an unmarried daughter who was solely dependent on the earnings of the deceased or the retired employee

5. It is apparent that compassionate appointment has to be offered to the dependent and the dependent shall mean spouse, a son or an unmarried daughter who was solely dependent on the earnings of the deceased or the retired employee. While the word "daughter" has not been used, the policy uses the words 'unmarried daughter'. Thus married daughters have been excluded from the purview of the policy on compassionate appointment.

6. The Single Bench has opined that refusal to give appointment to the married daughter is discriminatory and violative of Article 15 of the Constitution of India. Certain decisions have been referred to by the Single Bench. Writ Petition has been allowed. Hence, the intra Court appeal before us.

7. The Division Bench of this Court has permitted to raise the question of vires of the para 2' of the aforesaid notification dated 31st March, 2008. As such, the same has been questioned for the first time in the appeal b