Gender discrimination in extending benefits to the descendants of a freedom fighter is violative of the Constitution of India.

Sharad Kumar Sharma, J.

1. The petitioner has preferred this writ petition as against the action of the respondent of not extending the benefits to the petitioner which was otherwise according to the petitioners was available to the dependents of freedom fighter under the various schemes floated by Government of India and State Government as well under the Act called as “The Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighter and Ex-Servicemen) Act, 1993”on the premise that the petitioner would not be entitled for the benefit because she happens to be granddaughter (daughters' daughter “Natini”) of the deceased freedom fighter and would not be covered in the definitions of family.

2. The only argument which has been extended by learned counsel for the petitioner is that the petitioner since being daughters daughter was a member of the family of deceased freedom fighter, irrespective of the fact that she got married to another person, that ought not deprive the petitioner from availing the benefit under the freedom fighter scheme on the premise that she is married granddaughter of the deceased freedom fighter, on the ground of gender discrimination.

3. The argument of the learned counsel for the petitioner is also from the view point that when the grandson (i.e., son's son) of the freedom fighter is included under the definition of the dependants of the family of freedom fighter in that eventuality that granddaughter i.e., daughters daughter or son i.e. (Nati and Natini) as called in the normal dialect (Natini) would also be entitled for the benefit under the scheme. In support of his contention, the learned counsel for the petitioner has made a reference the ratio as propounded by the Division Bench of Allahabad High Court in the case of Isha Tyagi Vs. State of U.P., and others, reported in 2014 (9) ADJ 331 though the question therein was with regards to the discrimination being created in relation to the daughter/son for the grant of compassionate appointment since being violative the Article 14 and 15 of the Constitution of India. The Division Bench has held that the married daughter would fall within the definition of the family and she would be entitled for grant of compassionate appointment. The relevant paragraphs of the aforesaid judgment read as under:-

“6. In National Legal Services Authority Vs. Union of India, the Supreme Court held that any discrimination on the basis of gender identity would be contrary to Articles 14, 15 and 21 of the Constitution:

“82. Article 14 has used the expression “person” and Article 15 has used the expression “citizen” and “sex” so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression “person”. All these expressions, which are “gender neutral” evidently refer to human beings....Gender identity as already indicated forms the core of one's personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity....

83. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution,............... “

7. It would be anachronistic to discriminate against married daughters by confining the benefit of the horizontal reservation in this case only to sons (and their sons) and to unmarried daughters. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter ceases to be a part of the family of her parents upon her marria