Calcutta HC stays patriarchal exclusion of married daughters from availing Compassionate Appointment scheme

An amendment to exclude married daughters from availing compassionate appointment under the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 has been stayed by the Calcutta High Court. .Justice Shekhar B Saraf stayed a notification issued to this effect, while making critical note of the patriarchal arguments made by the counsel defending the amendment. He observed, .“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.”.The Court proceeded to emphasise that the scheme of compassionate appointment must be based on economic dependence and not on whether the dependent is married..“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 petitioner before the Court was the married daughter of a woman who was running a ration shop. After her mother’s death, the MR Dealership was not granted in the petitioner’s favour on compassionate grounds, citing the 2017 amendment..The petitioner claimed that she and her husband were dependent on her mother and that they had been helping her mother run the MR Dealership. Before the Court, she submitted that she would be economically deprived and severely prejudiced if the Dealership is not granted in her favour. Her plea contended that the State was arbitrarily discriminating against married daughters when it came to compassionate appointments by way of the amendment in question..On the other hand, state counsel Shirsanya Bandyopadhyay defended the amendment, contending that compassionate appointment could not be claimed as a matter of right. He pointed out that compassionate appointment is in the nature of an exception to Articles 14 and 16 of the Constitution, Therefore, it could only be carried out in accordance with the Government’s schemes for the same..Pertinently, Bandyopadhyay also justified the exclusion of married daughter from the definition of “family member” under the 2017 amendment when it comes to availing the compassionate appointment by falling back on the “socio-economic system prevailing in our country.” The High Court’s order goes on to reveal,.“He [Bandyopadhyay arguing for the State] 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.“.However, Justice Saraf disagreed, noting that the exclusion of married daughters was arbitrary and unconstitutional..The Court acknowledged that “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.” All the same, Justice Saraf proceeded to remark,.“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.“.When it comes to excluding married daughters from availing the benefit of compassionate appointment, the Court pointed out that the last has already been settled by a Division Bench in State of West Bengal and Others v. Purnima Das and Others. As noted in Justice Saraf’s order,.“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..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 Court, therefore, stayed the 2017 notification for three months, or until further orders. A letter rejecting the petitioner’s claim for compassionate appointment, issued in March this year, was also stayed for the same period..Further, the Court also issued an interim order to grant the MR Dealership in the petitioner’s favour, while observing,.“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…. .… 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.“.However, the Court cautioned that the interim relief would be subject to the final verdict in the case. The Court has also directed that affidavits be filed and exchanged so that the matter may be finally decided..Advocate Nibedita Pal appeared for the petitioner. Advocates TM Siddiqui and Nilotpal Chatterjee appeared for other state respondents in the case..[Read the Order]