A.S Chandurkar, J.:— The question that arises for determination in this Writ Petition filed under Article 226 of the Constitution of India is whether the exclusion of a married daughter from the expression “family” for being entitled to be considered for grant of retail kerosene license under Government Resolution dated 20th February, 2004 can be said to be legal and valid.
2. The factual background which gives rise to the aforesaid question is that one Godavaribai Jairam Jadhav was holding a retail kerosene license issued to her under provisions of the Maharashtra Scheduled Commodities Retail Dealers' Licensing Order, 1979 (for short, the Licensing Order of 1979). She expired on 9th April, 2003 and was survived by her son-respondent No. 4 and daughter-the petitioner. The petitioner had initiated proceedings for inclusion of her name as legal representative and had sought issuance of license in her name. In the aforesaid proceedings, the Hon'ble Minister, Food and Civil Supplies on 26th September, 2007 had held the petitioner entitled for transfer of aforesaid license in her name. Pursuant thereto the Collector had on 8-10-2007 issued aforesaid license in favour of the petitioner. Against the aforesaid order, the respondent No. 4 preferred revision application under Clause 16 of the Licensing Order of 1979. The Hon'ble Minister, Food and Civil Supplies considered the matter and held that though the petitioner was a married daughter of Smt. Godavaribai Jadhav she had not been lawfully divorced. According to the Hon'ble Minister as a married daughter was ineligible to be considered as a member of the family of the deceased for being entitled for grant of retail license under Government Resolution dated 20th February, 2004, the order dated 8th October, 2007 passed by the Additional Collector came to be set aside and it was directed that the license be issued in the name of the respondent No. 4. It is said order dated 17-6-2009 that is impugned in the present Writ Petition.
3. During pendency of the present Writ Petition, the respondent No. 4-son expired and his legal heirs were brought on record. The Writ Petition was amended and a challenge was laid to Government Resolutions/Circulars dated 22-12-1997, 16-8-2001, 10-12-2003 and 20-2-2004 by which a married daughter had been excluded from the meaning of the expression “family” for purposes of being granted retail kerosene license. Accordingly, the Writ Petition was placed before the Division Bench. The parties were put to notice that the Writ Petition could be disposed of finally at the stage of admission. Accordingly we have heard Mr. Rahul D. Motkari, learned Counsel for the petitioner, Mr. V.P Malvankar, learned AGP “A” Panel, for respondent Nos. 1 to 3 and Ms. Deepalaxmi Matwankar, learned Counsel for respondent No. 4(a). Hence Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
4. It is submitted by the learned Counsel for the petitioner that the petitioner being the daughter of Smt. Godavaribai J. Jadhav, she was entitled in law to succeed to her properties. It was urged that under the Hindu Succession Act, 1956 a daughter is entitled to succeed to the estate of her mother. It was only on account of circular dated 20-2-2004 that the petitioner was held disentitled from making a claim for grant of license in her name. It was submitted that there was no justifiable basis whatsoever to exclude a married daughter from being included in the expression of “family”. While an unmarried daughter was treated as part of family of the deceased license holder, a married daughter was however held not eligible. It was therefore submitted that the aforesaid Government Resolution dated 20-2-2004 was violative of Articles 14 and 300-A of the Constitution of India to the extent a married daughter was excluded from the purview of the expression of “family”. The learned Counsel therefore prayed for setting aside aforesaid Government Resolution and consequently the impugned order dated 17-6-2009 passed on that basis.
5. The learned Counsel for the petitioner relied upon the decision of the Division Bench of this Court in Aparna Narendra Zambre v. Assistant Superintendent Engineer, Krishna-Koyna Upsa Sinchan Project Board, Sangli, 2011 (5) Mh. LJ. 290, judgment of the Division Bench of this Court at Aurangabad Bench in Writ Petition No. 9474 of 2011 decided on 13-2-2012, Meena Dinkar Deshmukh @ Meena Sanjay Bawaskar v. State of Maharashtra judgment of the Division Bench of this Court in Writ Petition No. 11987 of 2012 decided on 6-12-2013, Sou. Swara Sachin Kulkarni (Kumari Deepa Ashok Kulkarni) v. Superintending Engineer, Pune in support of his aforesaid contentions.
6. On the other hand Shri A.I Patel, the learned Assistant Government Pleader appearing for respondent Nos. 1 to 3 has opposed the Writ Petition. It was submitted that the impugned order had been passed after considering the Government Resolution dated 20-2-2004. It was further submitted that on a daughter getting married, she moves out of the family and hence could not be included in the expression “family” of the deceased license holder. It was therefore submitted that there was no merit in the Writ Petition and the same deserved to be dismissed.
The learned Counsel appearing for respondent No. 4(a) also supported the impugned order as having passed on the basis of Government Resolution dated 20-2-2004.
7. Initially, the State of Maharashtra had made the Maharashtra Kerosene Dealers Licensing Order, 1966 in view of the power conferred by section 3(2) of the Essential Commodities Act, 1955. Thereafter the Licensing Order of 1966 was replaced by the Licensing Order of 1979. By Government Resolution dated 22-12-1997 it was directed that while issuing license to a legal representative of a deceased license holder it was not necessary to issue a proclamation. In the category of legal representatives only the spouse of the deceased, major son, major unmarried daughter and dependent mother/father were included. By subsequent Government Resolution dated 16-8-2001 certain changes were made in the categories of Licensing Authorities. The expression “family” was explained to include husband, wife, major son, major unmarried daughter, daughter-in-law and dependent parents. By Government Resolution dated 10-12-2003, divorced daughter was included in the expression “family”. However, it was stated that on remarriage of such divorced daughter, the license would come to an end. Thereafter, by Government Resolution dated 20-2-2004, the expression “family” as stipulated in earlier Government Resolution dated 16-8-2001 was modified. The expression “family” included widow/widower of the license holder, major son, major unmarried daughter, daughter-in-law, legal heir, adopted son, divorced wife dependent on the head of the family of the license holder and dependent parents. Thus, except a married daughter, other categories of legal representatives were included in the expression “family”.
8. The impugned order dated 17-6-2009 allowing the revision application preferred by respondent No. 4-son of the deceased retail license holder records that as the petitioner was a married daughter of the deceased retail license holder, she could not be treated as a legal heir for purposes of being eligible for grant of retail dealers' license. It is in this background that the petitioner has challenged Government Resolutions dated 22-12-1997, 16-8-2001, 10-12-2003 and 20-2-2004 to the extent it excludes a married daughter from the purview of the expression “family” of the deceased license holder.
9. Before considering the challenge to the aforesaid Government Resolutions it may be noted that the Control Order of 1979 has been made in exercise of powers under section 3(2) of the Essential Commodities Act, 1955 with a view to regulate supply of kerosene which is an essential commodity through issuance of license. While the Control Order of 1979 lays down the manner in which a retail dealers' license is to be granted, manner in which it is to be renewed and the consequence of contravention of the conditions of the license, it is by way of Government Resolutions that the expression “family” of a retail license holder is sought to be defined. In other words, by executive instructions the expression “family” is defined thereby excluding a married daughter from its purview.
In this regard, it would be appropriate to refer to the decision of the Constitution Bench of the Supreme Court of India in Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 wherein notifications issued by the Central Government in exercise of power under section 3(3-C) of the Essential Commodities Act, 1955 dividing the country into 16 zones and fixing the price of sugar for various zones were in challenge. In para-52 thereof it was observed as under:
“52. The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.”
In this background, the challenge to aforesaid executive instructions will have to be considered.
10. Now coming to the principal challenge in the Writ Petition to Government Resolution dated 20-2-2004 to the extent it excludes a married daughter from being considered a member of the family of the deceased license holder is concerned, it must be noted that legal heirs of a deceased retail license holder are entitled to seek transfer of license in their name after the death of the license holder. However, by including only the spouse of the deceased, his/her major son, or unmarried daughter above the age of 18 years, daughter-in-law, legal representative, adopted son, divorced daughter dependent on the head of the family and parents dependent on the head of the family in the meaning of the expression “family”, a married daughter has been consciously excluded. Thus, a daughter prior to her marriage and a dependent divorced daughter are included within the purview of the expression “family” but a married daughter has been left out. There does not appear any rational basis for doing so. There could be a license holder having only one daughter. If the license holder unfortunately expires prior to her marriage, she if above 18 years of age would be eligible to be treated as a member of the family of the license holder. Similarly, if such daughter is divorced she would fall within the purview of the expression “family”. But, if married and also supporting the license holder in his/her old age, she would be excluded from being included in the expression of family in case the license holder expires. This exclusion of a married daughter does not appear to be based on any logic or other justifiable criteria. Marriage of a daughter who is otherwise a legal representative of a license holder cannot be held to her disadvantage in the matter of seeking transfer of license in her name on the death of the license holder. Under Article 19(1)(g) of the Constitution of India the right of a citizen to carry on any trade or business is preserved. Under Article 19(6) reasonable restrictions with regard to professional or technical qualifications necessary for carrying on any trade or business could be imposed. Similarly, gender discrimination is prohibited by Article 15 of the Constitution. The exclusion of a married daughter from the purview of expression “family” in the Licensing Order of 1979 is not only violative of Article 15 but the same also infringes the right guaranteed by Article 19(1)(g) of the Constitution.
11. In Savita Samvedi (Ms) v. Union of India, (1996) 2 SCC 380, a circular of the Railway Board holding that a married daughter of a retiring official eligible to obtain regularization if her retiring father had no son was considered. In that context it was observed in paras-6 and 7 as under:
“6. A common saying is worth pressing into service to blunt somewhat the Circular. It is—
“A son is a son until he gets a wife. A daughter is a daughter throughout her life.”
7. The retiring official's expectations in old age for care and attention and its measure from one of his children cannot be faulted, or his hopes dampened, by limiting his choice. That would be unfair and unreasonable. If he has only one married daughter, who is a railway employee, and none of his other children are, then his choice is and has to be limited to that railway employee married daughter. He should be in an unfettered position to nominate that daughter for regularization of r; ilway accommodation. It is only in the case of more than one children in railway service that he may have to exercise a choice and we see no reason why the choice be not left with the retiring official's judgment on the point and be not respected by the Railway authorities irrespective of the gender of the child. There is no occasion for the Railways to be regulating or bludgeoning the choice in favour of the son when existing and able to maintain his parents. The Railway Ministry's Circular in that regard appears thus to us to be wholly unfair, gender-biased and unreasonable, liable to be struck down under Article 14 of the Constitution. The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit of the earlier part of the Circular, referred to in its first paragraph, above-quoted.”
In Aparna Narendra Zambre (supra), the petitioner therein was not considered for appointment on compassionate grounds by virtue of being married. Though it was urged on behalf of the petitioner therein that exclusion of a married daughter from consideration for appointment on compassionate basis was discriminatory, the Court did not go into the said larger issue as it was found that the name of the petitioner therein had been rejected despite the fact that the petitioner therein was unmarried when her case was rejected.
In Meena Dinkar Deshmukh (supra), the Division Bench of this Court referred to the decision in Aparna Narendra Zambre (supra) and held that a candidate could not be denied the benefits as available to a freedom fighter's nominee only on the ground that she was a married daughter of the freedom fighter.
In Swara Sachin Kulkarni (supra), the claim of a married daughter for appointment on compassionate basis was turned down by the authorities as she was not a part of the family of the deceased. This Court held that the stand of the State Government that a married daughter would not be eligible or could not be considered for compassionate appointment was violative of the mandate of Articles 14, 15 and 16 of the Constitution of India. It was further held that no discrimination could be made in public employment on gender basis. It was directed that the claim of the petitioner be considered irrespective of the fact that she was married.
12. It may be noted that after the decision of this Court in Aparna Narendra Zambre (supra), the General Administration Department of the State of Maharashtra has issued Government Resolution dated 26-2-2013 and has recognized the entitlement of a married daughter to seek appointment on compassionate basis subject to she and her husband furnishing an undertaking that they would take care of the family. Similarly, after the decision of this Court in Meena Dinkar Deshmukh (supra), the General Administration Department of the State of Maharashtra has issued Government Resolution dated 19-5-2014 and has permitted nomination of a married daughter by a freedom fighter/his widow for being entitled to benefits admissible to a freedom fighter.
The aforesaid Government Resolutions therefore recognize the entitlement of a married daughter to seek benefits in the matter of compassionate appointment in State Government service and benefits admissible to a freedom fighter. It is thus obvious that the State of Maharashtra has recognized the entitlement of a married daughter to claim compassionate appointment in State Government services or seek benefits as a nominee of a freedom fighter as the case may be. If this be so there is no reason why a married daughter cannot be included in the expression “family” as stated in Government Resolution dated 20-2-2004. Such non-inclusion would itself militate against the decision of the State Government to recognize entitlement of a married daughter in the case of compassionate appointment or freedom fighter's benefits as the case may be. Hence, this is one more reason by which aforesaid Government Resolution dated 20-2-2004 to the extent it excludes a married daughter from being considered as a member of the family of a retail license holder is discriminatory and hence violative of Article 14 of the Constitution of India also.
13. From the aforesaid discussion, we have no hesitation in coming to the conclusion that the Government Resolution dated 20-2-2004 to the extent it excludes a married daughter from being considered as a member of the “family” a deceased retail license holder is violative of the provisions of the Articles 14, 15 and 19(1)(g) of the Constitution of India. The Hon'ble Minister, Food and Civil Supplies and Consumer Protection while passing the impugned order dated 17-6-2009 has taken into consideration the position as obtained from Government Resolution dated 20-2-2004. Hence the claim of the petitioner for being treated as a legal representative of deceased Godavaribai J. Jadhav has not been considered as the petitioner was considered to be a married daughter. In view of our aforesaid findings, the revision application under clause-16 of the Licensing Order, 1979 will have to be remitted back for fresh decision in the light of our aforesaid findings. Hence, we pass the following order:
(a) The Government Resolutions/Circulars dated 22-12-1997, 16-8-2001, 10-12-2003 and 20-2-2004 to the extent they exclude a married daughter from being considered as a member of the “family” of a deceased retail license holder are held to be violative of the provisions of Articles 14, 15 and 19(1)(g) of the Constitution of India;
(b) The respondent No. 1-State of Maharashtra is directed to issue appropriate Government Resolution in the light of the conclusion recorded in paragraph-13 of this judgment;
(c) The impugned order dated 17-6-2009 is quashed and set aside and the revision application No. 450 under Clause 16 of the Licensing Order of 1979 is remitted to the State Government for fresh decision in accordance with law. It is clarified that this Court has not gone into the merits of the findings recorded in the order dated 17-6-2009 and the said revision application shall be decided afresh in accordance with law;
(d) The petitioner and respondent No. 4(a) are directed to appear before the Ministry of Food, Civil Supplies and Consumer Protection on 16-9-2014. The revision application shall be decided within a period of three months from the date of appearance of the parties before the said authority;
(e) The Writ Petition is partly allowed in aforesaid terms with no order as to costs.
Petition partly allowed.