Sulekha Gorain vs State OF West Bengal & Ors

Shekhar B. Saraf, J

This is an application under Article 226 of the Constitution of India wherein the writ petitioner is challenging an amendment made to the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 (hereinafter referred to as the said Control Order, 2013). The said amendment came about by Notification No. 625-FS dated March 06, 2017. The said amendment is delineated below :-

"In clause 2 of the said Control Order, for sub-clause (m), substitute the following clause :-- (m) 'family member' means -

(i) spouse; or

(i) parents; or

(i) son (including legally adopted son before death or incapacitation); or

(i) unmarried daughter (including legally adopted unmarried daughter before death or incapacitation), who was wholly dependent on the dealer or distributor at the time of his death in harness or incapacitation, as the case may be, and is in need of immediate financial assistance at the time of making application and also at the time of consideration'."

It is the case of the petitioner that by carrying out the above amendment, the State has in an arbitrary manner discriminated against a married daughter in the Scheme for compassionate appointment.

Learned Counsel appearing on behalf of the petitioner submits that in her case, she was residing with her mother in whose name the M.R. Dealership existed. She further submits that she and her husband were totally dependent on the mother and were in reality helping her mother in running the M.R. Dealership. She submits that in the event the M.R. Dealership is not granted in her favour on compassionate grounds, she will be severely prejudiced and economically deprived. She submits that this appointment on compassionate grounds is her only source of income as her husband is unemployed and does not earn a single farthing.

Mr. Shirsanya Bandyopadhyay, learned Counsel appearing on behalf of the State submits that appointment under compassionate ground is an exception to Article 14 and Article 16 of the Constitution of India and in a catena of Supreme Court judgments it has been held that appointment on compassionate ground is not a matter of right and can only be granted as per the scheme provided by the Government / Institution. He submits that the amendment has categorically removed the married daughter from the definition of the family members and therefore there is no scope for the petitioner being granted the appointment on compassionate grounds. He further submits that the removal of a married daughter from the definition of the family member is in keeping with the socio-economic system prevailing in our country. He further submitted that once a woman is married, she becomes part of the family of the husband and the link with her earlier family is broken. He again submits that amendment has been made keeping in mind the socio-cultural background existing in India. He further submits that the judgment of the Division Bench of the Calcutta High Court in the case of State of West Bengal and Others -v- Purnima Das and Others, reported in 2017 (4) CHN (Cal) 362 has no application in the present facts and circumstances as the said judgment was dealing with the definition of married daughter.

I have heard the learned Counsel appearing on behalf of the parties and considered the submissions made on behalf of all the parties. In my view, the concept of compassionate appointment is definitely an exception under Article 14 and 16 of the Constitution of India and a person is entitled for compassionate appointment only as per the scheme provided by the Government. In Bijon Mukherjee -v- State of West Bengal reported in 2018(4) CHN (CAL) 454, I have examined in great detail several Supreme Court judgments and laid down the principles with regard to compassionate appointment. Paragraphs 25 and 26 of the said judgment are extracted below to highlight the same:-

"25. I had on an earlier occasion, examined the principles relating to compassionate appointment in the case of W.P. 2825 (W) of 2018 (Smt. Ipsita Chakrabarti nee Dua -v- State of West Bengal and Ors.). After considering the Supreme Court judgements delivered in the cases of State Bank of India and Anr. -v- Somvir Singh reported in (2007) 4 SCC 778; I.G. (Karmik) and Ors. -v- Prahalad Mani Tripathi reported in (2007) 6 SCC 162; National Institute of Technology -v- Niraj Kumar Singh reported in (2007) 2 SCC 481; Union Bank of India and Ors. -v- M.T. Latheesh (supra); this Court held that the appointment on compassionate grounds is to be done in accordance with the rules framed by the employer and there is no right to claim compassionate appointment on any other ground. Furthermore, the Court had held that this appointment is given only for meeting the immediate hardship faced by the family due to the death of the bread earner and the financial condition of the family is a guiding factor for such appointment. The relevant paragraph enunciating the ratio decidendi of the judgement is delineated below:

"10. After going through the judgments passed by the Supreme Court on the issue of compassionate appointment, the following principles emerge:-

(a) Appointment on compassionate grounds is an exception craved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process.

(a) The right of a dependent of an employee who died in harness for compassionate appointment is based on the scheme, executive instructions, rules etc. framed by the employer and there is no right to claim compassionate appointment on any other ground apart from the above scheme conferred by the employer.

(a) Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground it should be kept confined only to the purpose it seems to achieve, the idea being not to provide for endless compassion.

(a) Compassionate appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family."

After observing the ratio and the legal positions contended by the Counsels appearing on behalf of the parties as well as the precedents examined above, I am persuaded to opine that appointment on compassionate grounds seeks to relieve the immediate financial hardship faced by the dependants of the deceased. It acts as an exception to Articles 14 and 16 of the Constitution as the defendant are given preferential appointment ahead of other equally meritorious candidates similarly placed and hence it cannot be claimed as a right. With the object of appointment on compassionate grounds in mind, it is palpably clear to me that this appointment must be done in accordance with the rules for such appointment. The dependant seeking such appointment must be eligible for such consideration and facing financial hardship to the extent delineated by the rules."

However, it is to be noted that such a scheme cannot be a scheme that perpetuates arbitrariness and/or inequality. The Supreme Court in the catena of judgments that deal with the compassionate appointment do not lay down any proposition of law that allows a particular scheme for compassionate appointment to be in violation of Article 14 of the Constitution of India. The Full Bench judgment in Purnima Das (supra) authored by Dipankar Dutta, J. examined a similar issue of the denial of appointment on compassionate grounds to married daughters of government employees who died-in-harness on the ground that such daughters are not eligible in terms of the relevant scheme for compassionate appointments. The Full Bench specifically held that the classification of married daughters as a different species cannot be termed as reasonable classification. The full bench categorically held that any classification made on the sole basis of gender in a welfare legislation is unacceptable. The relevant extracts from the above judgment are provided below for a thorough examination on the above issue. The relevant extracts are delineated below :-

"84. ..... Exclusion of any member of a family on the ground that he/she is not so dependent would be justified, but certainly not on the grounds of gender or marital status. If so permitted, a married daughter would stand deprived of the benefit that a married son would be entitled under the scheme. A married son and a married daughter may appear to constitute different classes but when a claim for compassionate appointment is involved, they have to be treated equally and at par if it is demonstrated that both depended on the earnings of their deceased father/mother (Government employee)for their survival. It is, therefore, difficult for us to sustain the classification as reasonable.

...... Regrettably, the scheme of the Government is deficient by failing to provide for those married daughters who could, given a chance, establish their dependency on their bread-winner father/mother (Government employee) who passes away while in service. Instead of a total exclusion from the purview of the scheme of compassionate appointment, the Government could have considered qualifying such exclusion by stipulating that those married daughters having the support of their matrimonial homes would stand excluded. Such stipulation, apart from lending credence to the scheme, would be in accord with the equality clause enshrined in Articles 14 and 16 and the directive contained in Article 39(a). we are minded to make such observation bearing in mind that every law enacted or scheme introduced having the force of law, particularly welfare legislation for the benefit of the weaker section of the people, must be implemented in the proper spirit for achieving the noble object for which such law or scheme is brought into existence."

Infact, on a closer examination of the above judgment it is clear that the adjective 'unmarried' before 'daughter', was struck down as violative of the Constitution of India. The relevant paragraph 113 is delineated below:

"113. Consequently, the offending provision in the notification dated April 2, 2008 (governing the cases of Arpita and Kakali) and February 3, 2009 (governing the case of Purnima) i.e. the adjective 'unmarried' before 'daughter', is struck down as violative of the Constitution. It, however, goes without saying that after the need for compassionate appointment is established in accordance with the laid down formula (which in itself is quite stringent), a daughter who is married on the date of death of the concerned Government employee while in service must succeed in her claim of being entirely dependent on the earnings of her father/mother (Government employee) on the date of his/her death and agree to look after the other family members of the deceased, if the claim is to be considered further."

One may look no further. In the present case also the amendment that has been carried out is with regard to addition of the adjective 'unmarried' before the noun 'daughter'. By the said amendment, all married daughters whether dependent or not, would be excluded from the zone of consideration for compassionate appointment. The legislature has not contemplated situations (a) where married daughters may be separated from the husband; and

(b) where the married daughter's husband resides with the daughter's family and both are economically completely dependent on the daughter's parents. The consideration for compassionate appointment has to be based on the economic dependence and not on the factum of marriage. The socio-economic-cultural argument canvassed by Mr. Bandyopadhyay, in my view, is a patriarchal argument bordering on misogyny and cannot be accepted by this Court. No distinction can be made on the basis of the factum of marriage of a woman. Such a classification clearly is in violation of Article 14 of the Constitution of India.

In view of the same, the Notification bearing No. 625-FS dated March 06, 2017 is stayed for a period of three months from date, or until further orders, whichever is earlier. Furthermore, the letter dated March 20, 2019 (Annexure P-6) refusing compassionate appointment on the ground that the petitioner is not a 'family member' is also stayed for a period of three months from date, or until further orders, whichever is earlier.

Keeping in mind, the raison d'etra and purpose of compassionate appointment - meeting the immediate hardship which is faced by the family by reason of the death of the sole bread earner - I am of the view that a further mandatory ad interim order needs to be passed to protect the writ petitioner. The Supreme Court in Dorab Cawasji Warden -v- Coomi Sorab Warden reported in AIR 1990 SC 867 lays down the conditions for grant of a mandatory ad-interim injunction as follows:

"14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as pre-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

In my view, the above conditions are fulfilled in the instant case as without the mandatory injunction the writ petition would become infructuous. Furthermore, the very object of compassionate appointment would be frustrated if the benefit is not extended immediately. Accordingly, Id irect the State Government to grant M.R. Dealership in favour of the petitioner, if all other criteria are fulfilled by the petitioner.

I make it clear that the above order of grant of M.R. Dealership to the petitioner shall abide by the result of the writ petition and shall create no equity in favour of the writ petitioner.

In my view, this matter cannot be decided finally without exchange of affidavits. Accordingly, affidavit-in-opposition be filed by the respondents within a period of four weeks, affidavit-in-reply thereto, if any, be filed within a week thereafter.

Liberty is granted to mention the matter for final hearing after exchange of affidavits.