CASES REFERRED:
AT PARAS
1. (1979) 4 SCC 260 : AIR 1979 SC 1868 -
(Relied) 7
2. ILR 1992 (3) KLJ 570 -
(do) 7.1
3. SCC 2003 (6) 278 -
(do) 7.2
4. W.A No. 1856/1992 c/w
W.A No. 2185/1992 dd 17.1.96
(do) 7.2, 9
Sri Prabhuling K. Navadgi, Advocate for Petitioner
Sri Nagarajulu Naidu, HCGA for R-1
Sri Ashok R. Kalyan Shetty, Advocate for R2
Gururajan, J.:—
This petition is filed by a married daughter seeking compassionate employment.
Petitioner's father late Hanumanthagouda Patil, was employed by the second respondent bank. He died in harness on 16-11-1998. He left behind his wife, sister and daughter i.e, the petitioner herein. His sister got married and she is living separately from them. Petitioner and her mother were completely dependent on the earning of Hanumantagouda Patil. After his death, petitioner was forced to discontinue her studies when she was prosecuting her III year BA. She made an application to the respondent bank for compassionate employment. The same was rejected on the ground that the petitioner is a married lady in terms of an endorsement Annexure-C. Mother of the petitioner made another application to the respondent bank to reconsider their decision. Her request was also rejected in terms of Annexure-D. Petitioner in these circumstances, is before me.
2. Respondents have entered appearance. Second respondent contested the matter by contending that in terms of the Regulations, a married daughter is excluded from claiming compassionate employment. They justify their action.
3. During the pendency of the petition it is brought to my notice that the State Government has chosen to amend the proviso in terms of the notification No. DPAR 19 SCA 99, Bangalore dated 24-11-2000 providing for employment in case of widowed daughter as well.
4. Sri Navadagi, learned Counsel argues before me that the Regulation as it exists as on today is arbitrary. Learned Counsel says that Regulation 2(3) is unconstitutional in the given circumstances. He says that no restriction as such is placed on men and only such restriction is placed on women. Married sons are eligible and married daughters are not eligible in terms of the Regulation. Learned Counsel says that this amounts to discrimination on the ground of sex and such discrimination is impermissible in law. Learned Counsel says that the facts of the case do warrant interference by this Court. He has also produced the death certificate evidencing the death of husband of the petitioner in the year 2002. He wants justice to be done to his client.
5. Per contra, learned Counsel for the respondent Bank says that daughters on marriage would leave the paternal home and that therefore they are justified in omitting the married daughter for the purpose of compassionate employment. They deny the theory of discrimination. Both the learned Counsel would rely on various Judgments.
6. After filing of the petition, the entire scene has changed, petitioner has became a widow. However, the Rules as I see do not specifically provide for any compassionate employment either in the case of a widowed daughter or in the case of a married daughter. Let me see as to whether the law on the subject or the facts of this case warrant any interference by me in the case on hand.
6. Sex discrimination is a taboo in terms of Article 16 of the Constitution. Rules of the Bank provide for compassionate employment to the widow and unemployed son of the deceased employee or unmarried daughter. The scheme is meant for dependents of the deceased. Case laws have dealt with this aspect of the matter in terms of the argument of the learned Counsel.
7. In (1979) 4 SCC 260 : AIR 1979 SC 1868, the Supreme Court noticed the plea of sex discrimination in terms of Article 14 and 16 of the Constitution of India. The Supreme Court noticed disentitlement of a right of employment in the case of married women. The Supreme Court in the said case ruled as under;
“6. At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other thing being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman's thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity viz., our women is a sad reflection on the distance between Constitution in the book and law in action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable.
We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of a particular employment, the sensitivities of sex or the peculiarities of social sectors or the handicaps of either sex may compel selectivity. But save where in differentiation is demonstrable, the rule of equality must govern. This creed of our constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) referred to earlier has been deleted on November 12, 1973. And, likewise, the Central Government's affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.”
7.1 Learned Single Judge of this Court in ILR 1992(3) Kar. L.J, 570 noticed that the married daughter is entitled for compassionate employments in the matter. The learned Single Judge ruled that discrimination in refusing compassionate appointment on the only ground that the woman is married is violative of constitutional guarantees.
7.2 The Supreme Court in 2003 (6) SCC 278 has ruled as under;
“The constitutional prohibition to the State not to discriminate citizens only on sex, however, does not prohibit a special treatment to the women in employment on their own demand. Where terms and conditions are fixed through collective bargaining as a comprehensible package deal in the course of industrial adjudication and terms of service and retirement age are fixed under agreements, settlements or awards, the same cannot be termed as unfavourable treatment meted out to the women workers only on basis of their sex and one or the other alone tinkered so as to retain the beneficial terms dehors other offered as part of a package deal. The Twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. The Constitution does not prohibit the employer to consider sex in making the employment decisions where this is done pursuant to a properly or legally chartered affirmative action plan.”
7.3 A Division Bench of this Court in W.A No. 1856/1992 has chosen to reverse the judgment of a learned Single Judge reported in ILR 1992(3) Kar. L.J, 570, and ruled as under;
“In normal circumstances, a married daughter is not dependent on her father or mother, but it is her husband with who she is residing on whom she is dependent. It is therefore impossible to find any fault with the scheme drawn by the Board and which does not include the married daughter as one of the dependants entitled to be considered for appointment on compassionate grounds. The learned Single Judge in our judgment was clearly in error in holding that change in the family structure and life styles demands that even the married daughter should be included — in the category of dependents. With respect, the family structure and the normal rule in the society indicates that the married daughters are no longer dependent on their parents.”
8. From these judgments what is clear to this Court is that Article 15 and 16 prohibits sex discrimination. The entire petition is based on the ground of denial of compassionate employment to married women.
9. It is no doubt true that the Division Bench in WA No. 1856/1992 c/w 2185/1992 DD 17-1-1996 has chosen to hold that Article 14 is not available in such cases. The Court has ruled that married daughter is not dependent on her father or mother but it is her husband with whom she is residing, on whom she is dependent. It was in those circumstances the compassionate employment was denied. However, the Division Bench in the last paragraph observed that though respondent is married, she is not dependent on her husband, because her husband is mentally deranged and his whereabouts are not known and hence the Court suggested to the appellant that the respondent be appointed under the scheme as a Sanitary Worker. The suggestion was made, as under Clause-13 of the Scheme in the said case, it is permissible for the appellant — Board to relax the rules in special circumstances. The Supreme Court in 2003 (6) SCC 278, as mentioned earlier holds that there cannot be any sex discrimination.
10. In these circumstances, this Court is of the view that no married women can be denied of an entry into service on compassionate employment just because she is married. In fact the State Government has accepted the theory of no employment for married women living with her husband. There may be cases where the married woman may be living with her parents notwithstanding her marriage for various reasons and there may be cases like the present one in which case the married women would be dependent on their parents on account of death of her I husband. Therefore what this Court would do is to read down the Rule thereby providing employment to dependent married daughters subject of course to the satisfaction of the management of the dependency of the said married daughters in the given circumstances. This view in my view would support the cause of women in terms of Article 14 and 15 of the Constitution of India. They cannot be denied employment merely on the ground of marriage. The Division Bench has also noticed dependency in such cases. Therefore the dependency’ should be the yardstick and not the ‘marriage’ to wipe out the tears from the eyes of the suffering family on account of the loss of an earning member in the family.
11. In the case on hand, it is shown to me that the petitioner has become a widow after filing of the petition. It is also brought to my notice that the State Government has chosen to take a right path in including widowed daughter for the purpose of compassionate employment. I am further told that the Bank always follows such amendment. Unfortunately, the Bank has not chosen to amend the Rules despite amendment by the State Government. In these circumstances, and in the light of the subsequent development in the case on hand, I deem it proper to direct the petitioner to submit an appropriate representation within four weeks from today in the light of subsequent development of her becoming a widow and in the light of subsequent development of including widowed daughter for compassionate employment. If any such representation is made, the bank is directed to consider the same in accordance with law and in the light of subsequent development as narrated above, notwithstanding the two endorsements Annexures-C and D, available on record within eight weeks thereafter.
Ordered accordingly. No costs.