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Neutral Citation No. - 2024:AHC-LKO:77237-DB

A.F.R.
High Court of Judicature at Allahabad
Lucknow
****

Reserved on : 18.09.2024
Delivered on : 22.11.2024
Court No. - 2
Case :- WRIT - A No. - 7862 of 2023
Petitioner :- Punita Bhatt Alias Punita Dhawan
Respondent :- Bharat Sanchar Nigam Limited (Bsnl) New Delhi
Thru. Its Chairman Cum Managing Director And 3 Others
Counsel for Petitioner :-Pankaj Kumar Tripathi, Bhavini Upadhyay,
Sandhya Dubey.
Counsel for Respondent :-Pratul Kumar Srivastava,Gyanendra Singh
Sikarwar.

Hon'ble Rajan Roy,J.

Hon'ble Om Prakash Shukla,J.

(Per: Om Prakash Shukla, J.)

(1) Heard Sri Pankaj Kumar Tripathi, learned Counsel for the

petitioner and Sri Pratul Kumar Srivastava, learned Counsel for

the respondents.

(2) By means of this petition, the petitioner has challenged the

judgment and order dated 13.01.2023 passed by the Central

Administrative Tribunal, Lucknow Bench (hereinafter referred

to as ‘the Tribunal’), whereby Original Application No.

332/00/123/2017 filed by the petitioner claiming compassionate

appointment on the basis of being widow daughter has been

dismissed. In addition, the petitioner is also challenging the

direction/instructions issued by the Assistant General Manager

(Recruitment), Bharat Sanchar Nigam Limited, Telecom (East),

Writ-A No. 7862 of 2023 : Punita Bhatt alias Punita Dhawan Vs. B.S.N.L. and 3 others
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U.P. Circle, Lucknow (respondent No.2) to the effect that

widow daughter of the deceased employee cannot claim

compassionate appointment.

(3) Brief facts of the case are that the petitioner is a widowed

daughter. Her father, namely, Om Prakash Bhakta, while

working on the post of T.O.A. (T.L.) in the office of General

Manager (Telecom), died in harness on 12.11.2011, leaving

behind wife (Smt. Saraswati Devi), four daughters including the

petitioner and a son.

(4) On 01.06.2016, the petitioner moved an application seeking

appointment on compassionate ground. Along with the

application, the petitioner had also submitted notary affidavits

of her mother, brother and married sisters to the effect that if the

petitioner is given appointment on compassionate ground, they

will have no objection rather they have given their consent to

give appointment to the petitioner. According to the petitioner,

she has also given a notary affidavit to the effect that she was

married with Late Manish Dhawan who died on 27.07.2009 and

after death of her husband, she was living with her father along

with her minor son and further if she is given appointment on a

suitable post, she will look after the heirs of her deceased father

as per the best of her capability and further that she is Graduate

and also has a Library Science Certificate.

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(5) Apparently, vide letter dated 13.10.2016, the Assistant General

Manager (HR), Office of General Manger (Telecom), Allahabad

intimated to the petitioner that as widowed daughter is not

listed in the eligibility criteria of the guidelines circulated by its

Circle Office, therefore, no action on her application for

compassionate appointment is required to be taken.

(6) Feeling aggrieved, the petitioner preferred an Original

Application No. 332/00/123/2017 before the Tribunal. The

Tribunal, after appreciating the claim of the petitioner as also

appraising the guidelines/schemes issued by the Bharat Sanchar

Nigam Limited for compassionate appointment as well as

judgment of this Court passed in Special Appeal No. 1026 of

2003 : U.P. Power Corporation Ltd. Vs. Smt. Urmila Devi, has

returned a finding that as per the guidelines, widowed daughter

is not enumerated in the list of eligible persons and the Tribunal

cannot enter into the shoes of the Executive in framing of rules

and guidelines. In this backdrop, the Tribunal has dismissed the

original application vide judgment and order dated 13.01.2023,

which has led to filing of the present writ petition.

(7) The submission of the learned Counsel for the petitioner was

two fold; firstly, as a widowed daughter she did not lose the

status of being a 'daughter' of her father/parent and after death

of her husband she was dependent upon her father for

subsistence, as such, she would come under the definition of

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family. In this regard, learned Counsel has placed reliance upon

the judgment of the Apex Court rendered in the case of Vineeta

Sharma vs. Rakesh Sharma : AIR 2020 SC 3717 and Uttar

Pradesh Power Corporation Ltd. vs. Smt. Urmila Devi :

(2011) SCC OnLine All 152. Secondly, petitioner’s case was

never placed before the Circle High Power Committee as

mandated by guidelines of the respondents.

(8) Per contra, learned Counsel for the respondents argued that the

impugned order passed by the Bharat Sanchar Nigam Limited

(hereinafter referred to as "BSNL") is based on Note ‘1’ of

Memorandum dated 09.10.1998, by virtue of which, the

meaning of ‘Dependent Family Member’ as per the Scheme for

Compassionate Appointment under The Central Government

(hereinafter referred to as "the Scheme") issued by Department

of Personnel Training (DoPT) is mentioned, wherein a ‘widow

daughter’ of deceased employee is not included as ‘Dependent

Family Member’ of the deceased employee. It is also submitted

that this Court or the Tribunal cannot include a widow within

the definition of 'Dependent Family Member' when the Policy

decision on the subject does not include her. Thus, his

submission was that learned Tribunal has passed a reasoned

order which does not call for any interference.

(9) Having regard to the submissions advanced by the learned

Counsel for the parties and going through the record available

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before this Court in the instant writ petition, what this Court

finds is that the bone of contention between the parties is as to

whether a "widow daughter" of a deceased employee is a

‘Dependent Family Member’ or not, so as to be eligible for

appointment on compassionate ground. The point to be seen by

this Court is as to whether a "widow daughter" falls under the

definition of ‘Dependent Family Members’ or not as per the

Scheme of the Compassionate Appointment.

(10) Evidently, the Guidelines for Compassionate Appointment

issued by the Government of India, Ministry of Personnel

Public Grievance and Pension (DoPT) vide Office

Memorandum dated 09.10.1998 states that the Scheme for

Compassionate Appointment is applicable to a ‘Dependent

Family Member. Point No.2 of Note-1 of the Scheme For

Compassionate Appointment, says that a ‘Dependent Family

Member' means :-

“(a) Spouse, or

(b) Son (including adopted son), or

(c) Daughter (including adopted daughter),

or

(d) Brother or the sister in the case of an

unmarried government servant.”

(11) Apparently, the respondents-BSNL relying on the aforesaid

Note-1 i.e. the meaning of ‘Dependent Family Member’ has

denied compassionate appointment to the petitioner on the

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ground that "widow daughter" is not mentioned at point No.(c),

which merely contains the word "daughter (including adopted

daughter)".

(12) The prerequisites to be satisfied for being entitled for

consideration for such appointment are that the applicant should

be a family member and should be dependent upon the

deceased employee. After these conditions are satisfied the

economic or financial condition of the family, including the

dependent, assumes significance, and is required to be assessed.

(13) In the facts of this case, it is not in dispute that the petitioner is

the daughter of the deceased employee, however, she was

married and became a widow prior to the death of her father,

the deceased employee. It is this fact which is coming in the

way of her consideration for compassionate appointment as,

according to respondents a widowed daughter is not included in

the guidelines dated 09.10.1998.

(14) As per the Office Memo dated 09.10.1998 of Department of

Personnel and Training, Government of India and the scheme

for compassionate appointment appended thereto which has

been adopted and is applicable in the opposite party-

corporation, the object of the scheme is to grant appointment on

compassionate ground to a dependent family member of an

employee dying-in-harness or who is retired on medical

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grounds, thereby leaving his family in penury and without any

means of livelihood, to relieve the family of an employee from

financial destitution and to help it to get over the emergency.

(15) It is not in dispute that the scheme is applicable in the opposite

party-corporation and was applicable to 'dependent family

member' of a deceased employee. The bone of contention is as

to whether the petitioner who was the married daughter and

unfortunately became a widow prior to the death of the

deceased government servant, is covered by the scheme or not.

As per Note-1 of the scheme, the words 'dependent family

member' has been defined. As per clause (c) thereof, definition

of 'daughter' is an inclusive one which includes 'adoptive

daughter'. The foremost question is as to whether the petitioner

was daughter of the deceased employee on the date of his death

or not in terms of this definition. The fact that she was born out

of the wedlock of her parents one of whom was the deceased

employee i.e. her father is not in dispute. Even after her

marriage, she continued to be daughter of her father i.e. late Om

Prakash Bhakta and there cannot be any dispute regarding her

status as such. In the case of Sunita vs. Union of India

reported in (1996) 2 SCC 380, Hon'ble the Supreme Court

succinctly summarized the status of a daughter vis-a-vis other

relatives in the following words :-

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'A son is a son until he gets a wife. A

daughter is a daughter throughout his
life'.
(16) The entitlement of a married daughter to be considered for

compassionate appointment has been considered by this High

Court as well as Hon'ble the Supreme Court and, the relevant

rules pertaining to the Government of U.P. which are quite

similar to the guidelines dated 09.10.1998, have been

interpreted so as to include a 'married daughter' within the

definition of 'daughter' contained therein. Subsequently, these

Rules have even been amended in the light of these

pronouncements.

(17) We may in this regard refer to a decision of a Division Bench

of this Court in Smt. Vimla Srivastava vs. State of U.P. and

Another : (2015) SCC OnLine All 6776, which has considered

the eligibility of "married daughters" for compassionate

appointment under the "Uttar Pradesh Recruitment of

Dependents of Government Servant (Dying in Harness) Rules,

1974 (hereinafter referred to as "Rules, 1974")". The learned

Division Bench, while considering Rule 2(c) of the Rules,

1974, which relates to definition of ‘family’ and sub-rule 2(c)

(iii), which relates to "daughter" and inter-alia contained a term

"unmarried daughters", "married adopted daughter", "widow

daughter" and "widowed daughter-in-law" within its fold but

did not mention "married daughter", went on to hold that the

exclusion of married daughters from the ambit of the expression

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"family" in Rule 2(c) of the Rules, 1974, is illegal and

unconstitutional, being violative of Article 14 and 15 of the

Constitution of India and accordingly, the word 'unmarried' in

sub-rule 2(c)(iii) of the Rules, 1974 was struck down by the

learned Division Bench after recording various precedents.

(18) The decision of the learned Division Bench of this Court in

Smt. Vimla Srivastava (supra) was followed by another

Bench of this Court in Smt. Neha Srivastava vs. State of U.P.

and Another (Special Appeal Defective No.863 of 2015,

decided on 23.12.2015). The special leave petition filed against

the said order has been dismissed vide order dated 23.07.2019

passed in Special Leave to Petition (Civil) No.22646 of 2016.

(19) Thus, it is seen from the aforesaid judgment of this Court that

although "unmarried daughters", "married adopted daughters",

"widowed daughters", and "widowed daughter-in-law" were

mentioned to mean a dependent of a family, however, the

learned Division Bench of this Court giving an expansive and

inclusive interpretation of the meaning of ‘family’ also included

"married daughter" within its fold as dependent.

(20) A Full Bench of the Madhya Pradesh High Court in the case of

Meenakshi Dubey vs. Madhya Pradesh Poorv Chhetra

Vidut Vitran Company Ltd. : (2020) SCC OnLine MP 383,

also upheld the right of the “married daughter” to claim

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appointment on compassionate grounds. The Full Bench, after

tracing the development of history on the said proposition of

law, has held that Clause 2.2 of the State Policy, which deprives

‘married daughter’ of the deceased employee from right to

consideration to claim compassionate appointment is violative

of Article 14, 16 and 39 (a) of Constitution of India. The Full

Bench has further held that a women citizen cannot be excluded

for any appointment on compassionate appointment basis on

the grounds of sex alone and a daughter even after marriage

remains part of the family of deceased employee and she could

not be treated as not belonging to her father’s family and

criteria for compassionate appointment should be dependency

rather than marriage.

(21) Similar question came up for consideration before a Larger

Bench of High Court of Calcutta in State of West Bengal and

Others Vs. Purnima Das and Others : 2018 Lav I.C. 1522,

wherein the relevant Clause 2(2) of the policy, which was

subject matter of examination, was:-

“2(2). For the purpose of appointment on

compassionate ground, a dependent of a
government employee shall mean wife/
husband/ son/ unmarried daughter of the
employee who is/was solely dependent on the
government employee.

The substantial question to be decided by the

Larger Bench was whether the classification
created by Government by depriving the
married daughter from right of consideration for
compassionate appointment is a valid
classification. Dipankar Dutta Justice speaking
for the Bench opined as under:-

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“...We are inclined to hold that the

purpose of scheme for
compassionate appointment every
such member of a family of the
government employee who is
dependent of the earning of such
employee for his or her survival
must be considered to belong to a
up ‘class’. Exclusion of any member
of a family on the ground that
he/she is not so dependent could be
justified, but certainly not on the
grounds of gender or marital status.
If so permitted, a married daughter
who 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 earning of their deceased
father/mother (government
employee) for their survival. It is,
therefore, difficult for us to sustain
the classification as reasonable.”

(22) Consequently, the Larger Bench has held that the adjective

‘unmarried’ before daughter, is stuck down as violative of the

Constitution. The judgment of Purnima Das (supra) etc., was

unsuccessfully challenged by the State of West Bengal before

the Hon’ble Supreme Court in SLP (Civil) No.17638-17639 of

2018 which were also dismissed on 23.07.2019.

(23) Similar question came up for consideration before a Larger

Bench of High Court of Uttarakhand in the case of Uddham

Singh Nagar District Cooperative Bench Ltd. and Others

Vs. Anjula Singh and Others :AIR 2019 UTR 69, wherein the

question posed before the Larger Bench was to whether non-

inclusion of a “married daughter” in the definition of “family”,

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under Rule 2 (c) of the Rules, 1974, and in the note below the

Regulation 104 of the 1975 Regulations, is discriminatory, and

is in violation of Article 14, 15 and 16 in part-III of the

Constitution of India. The Larger Bench, after recording various

precedents, governing the field went on to hold that non-

inclusion of a “married daughter” in the definition of a

"family", Rule 2 (c) of the Rules, 1974, and the note below of

the regulation 104 of the 1975 Regulations, thereby denying her

the opportunity of being considered for compassionate

appointment, even though, she was dependent on the

Government Servant at the time of his death, is discriminatory

and is in violation of Article 14, 15 and 16 in Part -III of the

Constitution of India.

(24) It is noteworthy that similar view has been taken by Hon’ble

Karnataka High Court in R Jayammo Vs. Karnataka

Electricity Board and Another : ILR 1992 KAR 3416. In the

said case, it has been held :-

“10. This discrimination in refusing

compassionate appointment on the only
ground that the woman is married is
violative of constitutional guarantees. It is
out of keeping with the trend of times when
men and women compete on equal terms
in all areas. The electricity Board would do
well to revive its guidelines and remove
such anachronism.”

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(25) The Madras High Court in R Govindmmal Vs. Principal

Secretary, Social Welfare and Nutritious Meal Program

Department : (2015) 3 LW 756 opined thus :-

“Therefore, I am of the view that G.O.M.S

No.560 dated 03.08.1977, depriving
compassionate appointment to married
daughters while married sons are provided
compassionate appointment, is unconstitutional.
In fact, the State can make law providing certain
benefits exclusively for women and children as
per Article 15 (3) of the Constitution of India. But
the State cannot discriminate women in the
matter of compassionate appointment, on the
ground of marriage.”

(26) The Hon’ble Bombay High Court in Sou. Swara Sachin

Kulkarni Vs. Superintending Engineer Pune Irrigation

Project Circle and Others : 2013 SCC Online BOM 1549

opined that the stand of the State that married daughter will not

be eligible or cannot be considered for compassionate

appointment violates the mandate of Article 14, 15 and 16 of

the Constitution of India. No discrimination can be made in

public employment on gender basis. If the object sought can be

achieved is assisting the family in financial crisis by giving

employment to one of the dependents, then undisputedly in the

case, the daughter was dependent on the deceased and his

income till her marriage. Thus, the Court did not find any

rationale for this classification and discrimination being made

in matters of compassionate appointment and particularly when

the employment was sought under the State.

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(27) To the same extent, the judgment by High Court of Tripura in

Devarshi Chakroverty Vs. State of Tripura and Others :

2020 1GLT 198, wherein the Court took note of the various

judgments of High Courts including the judgment of Allahabad

High Court in Vimla Srivastava (supra) and judgment of

Karnataka High Court in Manjula Vs. State of Karnataka

reported in (2005) 104 FLR 271 and has held that non-

inclusion of a “married daughter” in the definition of a

“family”, Rule 2 (c) of the Rules, 1974, and in the note below

the regulation 104 of the 1975 Regulations, thereby denying her

the opportunity of being considered for compassionate

appointment, even though, she was dependent on the

government servant at the time of his death, is discriminatory

and is in violation of Article 14, 15 and 16 in Part III of the

Constitution of India and as such read down the said definition

of “family” in Rule 2 (c) of the Rules, 1974, and in the note

below the regulation 104 of the 1975 Regulations, to save it

from being held unconstitutional.

(28) Further, Full Bench of Rajasthan High Court in the case of

Priyanka Shrimali vs. State of Rajasthan : 2022 SCC Online

RAJ 1479 was tasked upon to interpret Rule 2(c) of Rajasthan

Compassionate Appointment of Dependents of Deceased

Government Servants Rules, 1996 (hereinafter referred to as the

“Rules, 1996”) which describes the meaning of “dependent” to

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be a spouse/son/unmarried or widowed daughter/adopted

son/adopted unmarried daughter legally adopted by the

deceased government servant during his/her lifetime and who

were wholly dependent on the deceased government servant at

the time of his/her death. The said definition was amended

w.e.f. 28.10.2021, wherein it included married daughter in the

said definition but with certain conditions. The Rajasthan High

Court after examining various judgments passed by different

High Court held that the use of word “unmarried” and Rule 2

(c) after of the Rules, 1996, deprived a married daughter from

right of consideration for compassionate appointment, violates

the equality clause and cannot be countenanced.

(29) The common string running through the aforesaid judgments of

various High Courts is that they have given purposive and

expansive interpretation to the meaning of the term 'family

member'. The High Courts have risen to the occasion to include

even married daughters within the meaning of family of

dependent.

(30) Now, whether there is anything in the scheme dated 09.10.1998

which excludes a married or widowed daughter. No doubt, after

the said scheme dated 09.10.1998 had been adopted by BSNL,

in order to bring uniformity and transparency in the matter of

compassionate appointment a weightage system has been

introduced vide Corporate Office Order dated 27.06.2007. In

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the documents annexed with the said office order under the

headings such as 'items with positive points' etc. and 'checklist

with reference to weightage point system', no doubt, whenever

there is reference to daughter it is referred as unmarried

daughter, however, the said Office Memo dated 27.06.2007

only lays down the procedure to be followed while considering

compassionate appointment. It does not lay down the eligibility

for such consideration. The eligibility, in fact, is laid down in

the Office Memo dated 09.10.1998 of the Government of India

which has been adopted and applied by BSNL as is also

mentioned in Office Memo dated 27.06.2007. Thus, the

weightage point system introduced vide Office Memo dated

27.06.2007 by BSNL is only an action consequential to the

main guidelines which are dated 09.10.1998 and is procedural

in nature. It is the main guidelines dated 09.10.1998 which

contain the substantive provision for entitlement to

compassionate appointment, and not the Office Memorandum

dated 27.06.2007, therefore, the Office Memorandum dated

27.06.2007 of BSNL cannot be understood and given a meaning

contrary to or beyond the substantive provisions as contained in

the O.M. dated 09.10.1998. We are to read and understand the

Office Memorandum dated 27.06.2007 in the light of guidelines

dated 09.10.1998 and not vice versa.

(31) The word 'daughter' used in the scheme is not preceded by the

word 'unmarried' just as the word 'son' used in the scheme is not
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preceded by the word 'unmarried'. The absence of such prefix

gives a reasonable basis to conclude that this definition does not

exclude a 'married daughter', especially as the definition is an

inclusive one, therefore, it has to be given an expansive

meaning keeping in mind the object sought to be achieved.

Although the word 'unmarried daughter' has been used in the

proforma documents annexed with O.M. dated 27.06.2007 by

which weightage point system was introduced but we have

already stated that this O.M. cannot supplant the substantive

provision contained in the O.M. dated 09.10.1998 as the

weigtage point system merely provides a procedure and is not

the substantive provision. Even otherwise, in view of what has

been discussed hereinabove, the word unmarried daughter used

in the documents annexed with the aforesaid O.M. would not be

sustainable in view of the decisions referred hereinabove.

Moreover, if a married son is eligible for compassionate

appointment if he was dependent upon his father at the time of

his death unless he had his own means of livelihood, then, there

is no reason as to why a married daughter who is similarly

placed, that is, if she was dependent upon her father, should not

be eligible for compassionate appointment under the aforesaid

scheme. Any distinction in this regard would be without any

reasonable basis and without any link to the object sought to be

achieved, therefore, it would be discriminatory and hit by

Article 14 of the Constitution. Article 15(1) of the Constitution

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of India prohibits discrimination by the State against any citizen

on grounds, inter alia, of sex. Likewise, Section 16(2) prohibits

such discrimination on the grounds of sex in respect of any

employment or office under the State. Thus, this Court finds

that it is clear as a cloudless sky that any action/clauses of the

policy which deprives a widowed daughter from a right of

consideration for compassionate appointment if she was

dependent upon her father, the deceased employee would run

contrary to Article 14, 15, 16 read with 39A of the Constitution

of India.

(32) In the light of decisions discussed hereinabove and the reasons

given as aforesaid, we have no hesitation to hold that the words

'daughter (including adopted daughter)' occurring in Note-I of

the Guidelines dated 09.10.1998 includes a married daughter,

the only caveat is that such married daughter should be

dependent upon her father/mother on the date of his/her death.

(33) Now the next question to be considered is whether a 'widowed

daughter' would be included in the said definition. We are of the

opinion that a 'widowed daughter' stands on a better footing

than a married daughter as, prima facie with the loss of her

husband, she also loses her source of livelihood unless of

course in the facts of a given case it is found that she is herself

employed or has other means of sustenance which are adequate

to sustain her in which case she may not have been dependent

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upon her father, but, unless this is proved, it would be

reasonable to draw an inference that she was dependent upon

her father unless of course there is evidence to the contrary.

(34) Even after marriage as also after her widowhood, she continues

to be his daughter and her status as such continues even at the

time of death of her father. Her widowhood occurred prior to

the death of her father, therefore, she was for all legal and

practical purposes daughter of late Om Prakash Bhakta

although a widowed daughter, on the date of his death.

(35) Consequently, this Court holds that a 'widowed daughter' would

be covered in the definition of 'daughter' contained in Note-I of

the Guidelines dated 09.10.1998 if she was dependent upon her

deceased father or mother on the date of his/her death. The

question of dependency is one of fact which is to be determined

by the authorities. If such widowed daughter was not dependent

upon her father then she would not be entitled to compassionate

appointment under the guidelines.

(36) For all the above said reasons, the respondent-BSNL could not

have declined to consider the application of the petitioner for

compassionate appointment merely because the petitioner was a

widowed daughter on the date of death of her father.

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(37) We have also gone through the judgment of Central

Administrative Tribunal dated 13.01.2023 which is impugned

herein and in view of the discussion already made, we find

ourselves unable to agree with the decision given by it. In view

of the reasons already given, the said judgment is not

sustainable. It is, accordingly, quashed.

(38) The original application as also this petition is allowed. The

competent authority is directed to consider the claim of the

petitioner for compassionate appointment in accordance with

weightage point system prevalent and in doing so she shall be

assigned points accordingly and her claim shall not be rejected

on the ground that she was married or widowed daughter. The

observations made hereinabove shall be adhered while taking a

decision in this regard. A decision in this regard shall be taken

within two months from the date of communication of a copy of

this order.

(Om Prakash Shukla, J.) (Rajan Roy, J.)

Order Date :- 22.11.2024

(Piyush/-) / (Shanu)

Writ-A No. 7862 of 2023 : Punita Bhatt alias Punita Dhawan Vs. B.S.N.L. and 3 others

Digitally signed by :-
PIYUSH YADAV
High Court of Judicature at Allahabad,
Lucknow Bench