IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE RAVI MALIMATH, CHIEF JUSTICE &

HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 8 OF FEBRUARY, 2024 WRIT PETITION No. 3201 of 2023 BETWEEN:-

SMT. MADHURI TIWARI W/O SHRI SATISH TIWARI, AGED ABOUT 42 YEARS, OCCUPATION: UNEMPLOYED C/O SALIGRAM SHUKLA VILLAGE AND POST ANJANIA TEHSIL BICHHIYA DISTRICT MANDLA (MADHYA PRADESH)

.....PETITIONER (BY SHRI DHARMESH CHATURVEDI - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH ITS CHIEF SECRETARY GENERAL ADMINISTRATION DEPARTMENT MANTRALAYA BHOPAL (MADHYA PRADESH)

2. COMMISSIONER TRIBAL WELFARE DEPARTMENT MANTRALAYA BHOPAL (MADHYA PRADESH)

3. COLLECTOR MANDLA DISTRICT (MADHYA PRADESH)

4. ASSISTANT COMMISSIONER TRIBAL WELFARE DEPARTMENT MANDLA DISTRICT (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI S.S.CHAUHAN - GOVERNMENT ADVOCATE)

This petition coming on for admission this day, Hon'ble Shri Justice Vishal Mishra passed the following:

Signature Not Verified Signed by: ANINDYA

ORDER

This petition is filed challenging the vires of Clause 2.6 of the policy of compassionate appointment on the basis of which her claim was rejected. It is argued that for grant of compassionate appointment, the basic criteria is the penury and dependency which is required to be seen by the Authorities. There cannot be any gender discrimination. The petitioner being a sister was a nominee in the service record of the deceased employee, therefore, she was entitled for consideration but owing to Clause 2.6 of the policy her case was rejected. It is argued that this matter was considered by the Full Bench of this Court in the case of Meenakshi Dubey Vs. M.P. Poorva Kshetra Vidyut Vitaran (W.A.No.756 of 2019) decided on 02.03.2020 wherein the Full Bench o f this Court has struck down Clause 2.2 of the policy of compassionate appointment which debars a married daughter from consideration for grant of compassionate appointment. The basic point which was taken note of by the Full Bench of this Court is that there cannot be any distinction or exclusion or restriction made on the basis of sex which has effect or purpose on impairing or nullifying the recognized enjoyment. Under these circumstances, the prayer is made to struck down Clause 2.6 of the policy which debars the married sister from even applying for grant of compassionate appointment.

2. It is the case of the petitioner that she is a married sister of the deceased employee who had the burden of maintaining entire family. After his death, the entire family is dependent upon her. She is residing with her mother and father who are suffering from various old age diseases and without any source of income it is very difficult to maintain the family. The entire responsibilities are upon the petitioner is to maintain an old ailing father and mother. She made an application seeking compassionate appointment in lieu of death of her brother Signature Not Verified Signed by: ANINDYA who was an employee of the respondent/Department. She is fully qualified to hold the post in the respondent/Department. The respondents have rejected the claim of the petitioner on the basis of clause 2.6 mentioned in the policy dated

29.09.2014 which is the subject matter of the petition.

3. It is argued that similar controversy arose for consideration before the Full Bench of this Court in the case of Meenakshi Dubey (supra) wherein the Full Bench has considered the fact that any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose on impairing or nullifying the recognized employment or exercise by women, irrespective of their marital status etc would amount to discrimination and considering the judgment passed by the Hon'ble Supreme Court in the case of Secretary, Ministry of Defence Vs. Babita Puniya and others reported in 2020 SCC Online SC 200, the Bench had declared Clause 2.2 of the policy to be unconstitutional and being violative of Articles 14, 15, 16 and 39 (1) of the Constitution of In