Discrimination on the basis of sex is impermissible under the Constitution of India, and policies must not perpetuate gender discrimination.

SANJAY KAROL, J.

1. Letter petitioners Ms Rekha Sharma and Ms Geeta Sharma, daughters of late Shri Het Ram Sharma (a Freedom Fighter), resident of Dadyal (Sundernagar), District Mandi, Himachal Pradesh, have highlighted a vital issue of public importance, i.e. of gender discrimination, in the State Policy, providing reservation in Government jobs to the wards of Freedom Fighters.

2. The questions, which arise for consideration in the present petition are:

1. Whether Policy of the State, providing reservation for recruitment, confined only to the unmarried daughters, unlike sons, who are married, is discriminatory or not?

2. If the marital status of a son does not make any difference in law, qua his entitlement or eligibility as a descendent, then why should marital status of a daughter, in terms of constitutional values, make any difference?

3. Whether there is a nexus with the objects sought to be achieved by the said action of the State?

3. Quite apparently, as per Policy of the State, married daughters and granddaughters of a Freedom Fighter, unlike sons and grandsons, are excluded from the benefit of reservation in jobs.

4. From the response, so filed by the State, averments made by the letter petitioners are found to be correct. However, State justifies such action, by stating that “the issue of providing reservation in services for the children/grandchildren of Freedom Fighters was engaging attention of the Government since long. However, after thoughtful consideration of whole matter it has decided in the year 1984 that 2% reservation in services be provided to the children/grandchildren belonging to the State of H.P. in direct recruitment to all services/posts i.e. Class-I to IV including all Public Sector Undertakings/ Board/Corporation. Since 1984, 2% reservation is being provided to the Children/grandchildren of Freedom Fighters. As per Scheme, the benefit of reservation is applicable in respect of sons/grandsons, daughters/ granddaughters of Freedom Fighters. The employed children/grandchildren and married daughters/ granddaughters of Freedom Fighters have been excluded from the scheme. So far as the question regarding giving reservation quota to the married Daughters/ granddaughters of Freedom Fighters is concerned, it is submitted that status of a married woman has to be construed in consonance with the general understanding of the word family as well as a status of married woman in the society. After marriage a married woman loses the status of being a member of parent’s family though married daughter/granddaughters after marriage do not lose status of member of undivided family of her father for the purpose of property. Keeping this background in view it is not legally sustainable to include the married daughters/grand-daughters in reservation scheme. However, the divorced daughters/ grand-daughters and widow daughters/granddaughters who have not remarried have been legitimately and legally brought within the ambit and scope of definition of dependent of Freedom Fighters provided they are residing with and/or fully dependent on the family of Freedom Fighters”. (Emphasis supplied)

5. In crux, it is the State’s stand that with the solemnization of marriage, daughter severs her relationship with her parental family, for she gets “transplanted” into the family of her husband, and as such, cannot claim herself to be part of family of a Freedom Fighter.

6. Also, earlier decision rendered by this Court in CWP No.4386 of 2015, titled as Neelam Kumari v. State of H.P. & others, for complying with the decision rendered in another writ petition, being CWP No.2958 of 2009, titled as Jyoti Kumari & others v. Secretary Education & another, is now subject matter of challenge before the Supreme Court of India.

7. On 8.11.2017, this Court passed the following order:

“Whether granting benefit of reservation of 2%, in employment under the State, only to children and particularly unmarried daughters of freedom fighters, is voilativ