The compassionate employment policy must not discriminate against married daughters, as dependency is the key criterion for eligibility, violating Article 15 of the Constitution.

JUDGMENT :

Tarlok Singh Chauhan, J.

By medium of this writ petition, the petitioner has assailed the office memorandum dated 18.05.2022, whereby a provision has been made by the State Government to make only the married daughter(s) eligible for compassionate appointment, in case, the family of the deceased government employee has only daughter(s) and none in both the families i.e. her parental family and the family into which she is married is in employment, funded by the government.

2. The office memoraundum reads as under:-

“OFFICE ORDER

Subject: ‘Compassionate Employment’- Provision regarding married daughter(s)

1. The matter regarding providing compassionate employment/assistance to married daughter(s) in case(s) where the family of the deceased employee has only daughter(s) was under consideration of the Government for some time.

2. After due consideration of this issue, it has been decided that married daughter(s) will also be eligible for compassionate appointment, in case the family of the deceased Government employee has only daughter(s) and none from the families i.e. her parental family and the family into which she is married, are in an employment, funded by the Government. As regards income criteria for married daughter(s), income of the parental family will be taken into account to determine indigency.

3. This provision may be brought to the notice of all concerned for information and compliance.

4. This Office Memorandum/instruction may also be seen on www.himachal.nic.in/finance under the link “Expenditure”.

3. It is evident from the perusal of the office memorandum that the same is in utter disregard and violation, and contrary to the ratio of the judgment of learned Division Bench of this Court in Mamta Devi vs. State of H.P. & Ors., 2021 (1) SLC 202, more particularly the observations as contained in paras 17 to 23, which read as under:-

“17. The conjunctional reading of the above judgments, viz-a-viz, the facts of the instant case, extensively convinces us that the State cannot carve out or draw, even a thin line, separating married daughter(s) from unmarried daughter(s)/son(s)/married son(s), ultimately depriving married daughter(s) of their valuable right of compassionate appointment. The State cannot discriminate married daughter(s) on the mere fact of marriage. The policy of providing compassionate employment, which is in vogue, evidently provide a criterion of dependency on the deceased government servant, now, it is difficult to understand that married sons remain dependent and dependency of married daughters ceases with marriage, hence forming an exception. This exception may have hypothetical rationale, which though not offered, behind depriving employment assistance to a married daughter and it can be twin-fold, viz., (i) with marriage, financial dependency of a female shifts from her parents to her husband and his family; and (ii) least or no expectation from a married daughter to look after her surviving mother/father and siblings, who have chosen to give ‘No objection’ in favour of a married daughter, for her’s being given employment on compassionate grounds. The above two rationale, in fact, fail to constitute a valid and viable basis depriving employment on compassionate grounds to married daughters, especially when daughters, married or unmarried, have been given all legal rights, as available to sons (married/unmarried), after the death of parents. So, the real test of “dependency” is the fact that the applicant, seeking compassionate appointment, was dependent on him/her prior to his/her demise. Thus, any other condition(s), debarring married daughter(s) is not only against the scheme of Constitution of India, but also against the dependency test.

18. The legality of the compassionate policy, in vogue, and in question herein, has to be evaluated on the touchstone of its constitutionality, but the policy, upon its evaluation, is discriminatory to married daughters, hence against the spirit of Article 15