Supreme Court strikes Bihar policy limiting daughter's compassionate job to divorced or deserted
A bench of Justices M.M. Sundresh and Prasanna B. Varale held Bihar's 2014 policy restricting compassionate appointment to divorced or deserted daughters cannot stand under Article 14.
The Supreme Court has set aside a Patna High Court order that denied a woman compassionate appointment following the death of her father, holding that a Bihar government policy allowing such appointment only to a divorced or deserted daughter cannot survive constitutional scrutiny. Deciding a civil appeal arising out of a special leave petition, a bench of Justices M.M. Sundresh and Prasanna B. Varale found that any classification differentiating a daughter from a son is unconstitutional. The Court rejected the assumption that a daughter severs ties with her parental family after marriage. It directed the State of Bihar to consider the appellant's claim on merits within eight weeks. The order matters because it addresses a gendered eligibility rule that treated married daughters as presumptively outside the family unit for the purpose of compassionate employment.
How the dispute reached the Court
The appellants sought appointment of appellant No. 2 on compassionate grounds after the death of the husband of appellant No. 1 and father of appellant No. 2. The High Court of Judicature at Patna rejected the request on two grounds.
The first was an objection raised by the brother of appellant No. 1. The second was the policy formulated by the Government of Bihar dated 10 December 2014, under which only a divorced or deserted daughter is eligible for appointment on compassionate grounds.
Before the Supreme Court, counsel for the appellants said the same brother had earlier furnished a no objection certificate, so that ground no longer survived. On the second ground, the appellants argued the 2014 policy was violative of Article 14 of the Constitution.
What the State argued
Counsel for the respondent submitted that the policy had not been challenged. The rationale offered was that a daughter, upon marriage, is ordinarily expected to leave her parental home. It was also submitted that compassionate appointment is not a matter of right and is governed by the policy.
Why the classification failed
The Court said it has repeatedly held that any classification differentiating a daughter from a son is, per se, unconstitutional. On reading the policy, the bench found that limiting eligibility only to a divorced or deserted daughter could not be sustained in law.
Central to the reasoning was a rejection of the presumption underlying the rule. The Court held there cannot be a presumption in law that a daughter severs ties with her parental family after marriage and resides in her matrimonial home. The eligibility carve-out rested on that very assumption.
On the facts, the appellant stated that although her divorce had not been formally recognised by law, she was living with her parental family and had the support of her mother and brother. The bench said adopting a “hyper-technical approach” could not be a ground to deny consideration of the claim.
Order
The Court set aside the impugned order and, consequently, the order rejecting the claim for compassionate appointment. It recorded that the brother's objection no longer survived.
The respondent was directed to consider the appellant's case for compassionate appointment on merits within eight weeks from receipt of a copy of the order. The Civil Appeal was allowed and pending applications were disposed of. Delay was condoned and the application seeking exemption from filing an official translation was allowed.