2003 Supreme(Cal) 93

IN THE HIGH COURT AT CALCUTTA
Girish Chandra Gupta, J.
Smt. Usha Singh – Petitioner
Versus
State of West Bengal & Others – Respondents
W.P. No. 964 (W) of 2002
Decided On : February 28, 2003

The restriction on marriage contained in the rules is unconstitutional and offends Article 15 of the Constitution. The qualification to be found in Rule 14 quoted hereinabove restricting the eligibility for appointment in the died-in-harness category only to an unmarried daughter is unconstitutional.

Headnote:

CONSTITUTIONAL LAW - ARTICLE 14, 15, 21 - GENDER DISCRIMINATION - APPOINTMENT ON COMPASSIONATE GROUND - UNMARRIED DAUGHTER - RESTRICTION ON MARRIAGE - UNCONSTITUTIONAL - PUBLIC POLICY - RIGHT TO LIFE - RIGHT TO MARRY - INDIAN CONTRACT ACT, SECTION 26 - PROTECTION OF HUMAN RIGHTS ACT, 1993, SECTION 2(D) - CEDAW.

Fact of the Case:

The petitioner, an unmarried daughter of a deceased teacher, applied for appointment on compassionate ground in the died-in-harness category. The Primary School Council rejected her candidature on the ground that a married daughter is not considered a “Ward” as per existing rules. The petitioner challenged the rejection order, contending that the condition of being unmarried is relatable to the date of application or interview and that a subsequent marriage cannot disentitle the candidate for an appointment.

Finding of the Court:

The Court held that the restriction on marriage contained in the rules is unconstitutional and offends Article 15 of the Constitution. The Court further held that the qualification to be found in Rule 14 quoted hereinabove restricting the eligibility for appointment in the died-in-harness category only to an unmarried daughter is struck down. The word “unmarried” to be found in Rule 14(a) is struck down so that an unemployed daughter shall be eligible as much as an unemployed son is eligible.

Issues: 1. Whether the restriction on marriage contained in the rules is unconstitutional? 2. Whether the qualification to be found in Rule 14 quoted hereinabove restricting the eligibility for appointment in the died-in-harness category only to an unmarried daughter is unconstitutional?

Ratio Decidendi: 1. The Court held that the restriction on marriage contained in the rules is unconstitutional and offends Article 15 of the Constitution. The Court relied on the following grounds: * Right to marry is a necessary concomitant of right to life guaranteed under Article 21 of the Constitution. * Section 26 of the Indian Contract provides that every agreement in restraint of the marriage of any person, other than a minor, is void. * The rationale of the rules is that the son or the daughter who applies for an appointment in the died-in-harness category should have been dependent upon the income of the deceased so that his untimely death left him/her/them in extreme economic hardship. The avowed object of the rules is to provide relief to the family which is in extreme financial hardship and for this purpose an unemployed son can apply whether married or unmarried. Why then is the restriction upon a daughter that she should be unmarried in order to be eligible for appointment? * An unmarried daughter can be a divorcee fully dependent upon the father. She may have been an abandoned wife again fully dependent upon the father. She may have been married to an indigent husband so that both the married daughter and the son-in-law would have been dependent upon the income of the breadwinner whose death led them to extreme financial hardship. * The concept of a “Ghar Jamai” (one who lives at one's father-in-law's house) is well accepted in Indian society particularly in those families where there is no son. There may be many other probabilities in which a married daughter may be fully dependent upon the income of her father so that death of the father would leave her and the rest of the members of the family in extreme economic hardship. Why should then a distinction be made between a son and a married daughter? * An unemployed married son according to the rules is eligible but an unemployed married daughter is ineligible irrespective of the fact that they are or may be similarly placed and equally distressed financially by the death of the father. * The discrimination made by the aforesaid rules between a married son and a married daughter only on the basis of sex in order to be eligible for appointment in the died-in-harness category is unconstitutional and offends Article 15 when it provides that an unemployed married son is eligible but an unemployed married daughter is not. 2. The Court held that the qualification to be found in Rule 14 quoted hereinabove restricting the eligibility for appointment in the died-in-harness category only to an unmarried daughter is unconstitutional. The Court relied on the following grounds: * The qualification is discriminatory and offends Article 15 of the Constitution. * The qualification is not based on any reasonable classification and is therefore arbitrary. * The qualification is not necessary to achieve the object of the rules, which is to provide relief to families in extreme financial hardship.

Final Decision: The Court set aside the impugned order rejecting the petitioner's candidature and directed the authorities to appoint the petitioner to the post of an assistant teacher.