The Full Bench judgment declaring that a married daughter should be considered for compassionate appointment has retrospective effect, but it will not reopen settled cases.

JUDGMENT :

SANJAYA KUMAR MISHRA, J.

1. The matter has been referred to the Larger Bench for determining the following questions:

(i) Whether in those case, where the death has taken place much prior in time i.e. beyond period provided under Rules, and the claim is raised beyond the period prescribed within the Rule 5 of the Rule of 1974, by a married lady, who has not been brought within the definition of a family, as a consequence of the judgment of the Full Bench in Special Appeal No. 187 of 2017, could still be considered irrespective of the provisions contained under Rule 5 of the Rules of 1974?

(ii) Whether the implications of the judgment of the Full Bench, whereon the basis of the principles of gender discrimination, the married daughter was brought within the definition of the family for the purposes of consideration of the claim of compassionate appointment under the Rules of 1974. Whether the implications of the judgment could be made applicable retrospectively in relation to even those cases, where death has chanced, much prior to the period prescribed under Rule 5 of the Rules of 1974 and the judgment would have procedural retrospective applicability?

2. The facts of the case may be stated succinctly as follows:

The petitioner Smt. Namrata Sharma claim for rehabital assistance by filing writ petition no. 1214 of 2021 (S/S) and prayed for issuance of writ of mandamus commanding the respondents to provide job to her by resorting to Dying in Harness Rules, 1974, on compassionate ground by virtue of judgment passed by the Full Bench in SPA No. 187 of 2017 holding that exclusion of the term ‘married daughter’ from Rule 2(c) of the 1974 Rules is violative of Article 14, 15 and 16 of the Constitution of India. Such judgment was passed on 25.03.2019. It is also not disputed at this stage that it came out during course of arguments that this petitioner has earlier approached this Court before passing of the judgment of Full Bench. Reference of the order dated 26.03.2014 in WP (SB) No. 391 of 2013 has been deliberately suppressed by the petitioner. However, there is reference of the order of disposal of representation in the light of the Full Bench judgment in WP (SS) No. 891 of 2021 on 16.04.2019.

3. In SPA No. 187 of 2017, the Full Bench of this Court considered whether the definition of family excluding married daughter, though dependant, on the government servant dying in harness should be included in the definition of family and whether Section 2(c) not including the married daughter is violative of the Article 14, 15, 16 in part III of the Constitution of India. After due deliberation and an exhaustive judgment the Full Bench of this Court held that Section 2(c) not including married daughter in family is violative of Article 14, 15 and 16 of the Constitution of India. The exact conclusion arrived at by the Full Bench of this Court in the order dated 25.03.2019 is as follows:

“(v) Conclusion:

66. We answer the reference holding that:

(i) Question No. 1 should be answered in the affirmative. It is only a dependant member of the family, of the Government servant who died in harness, who is entitled to be considered for appointment, on compassionate grounds, both under the 1974 Rules and the 1975 Regulation.

(ii) Question No. 2 should also be answered in the affirmative. Non-inclusion of “a married daughter” in the definition of a “family” under Rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even thought she was dependent on the Government servant at the time of his death, is discriminatory and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India.

(iii) We, however, read down the definition of “family” in Rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, to save it from being held unconstitutional. As a result a “married daughter” shall also b