COURT ON ITS OWN MOTION Vs STATE OF HP

 COURT ON ITS OWN MOTION Vs STATE OF HP 

Before : Sanjay Karol, ACJ. and Sandeep Sharma, J. 

CWPIL No. 114 of 2017 Decided on : 14-08-2018

Deven Khanna, Amicus Curiae, for the Petitioner; Ashok Sharma, Adv. General, with Ranjan Sharma and Ms. Ritta Goswami, Additional Advocates General, for the Respondent

Sanjay Karol, Actg. C.J. - 

Letter petitioners Ms Rekha Sharma and Ms Geeta Sharma, daughters of late Shri Het Ram Sharma (a Freedom Fighter), resident of Dadyal (Sundernagar), District Mandi, Himachal Pradesh, have highlighted a vital issue of public importance, i.e. of gender discrimination, in the State Policy, providing reservation in Government jobs to the wards of Freedom Fighters.

2. The questions, which arise for consideration in the present petition are:

1. Whether Policy of the State, providing reservation for recruitment, confined only to the unmarried daughters, unlike sons, who are married, is discriminatory or not?

2. If the marital status of a son does not make any difference in law, qua his entitlement or eligibility as a descendent, then why should marital status of a daughter, in terms of constitutional values, make any difference?

3. Whether there is a nexus with the objects sought to be achieved by the said action of the State?

3. Quite apparently, as per Policy of the State, married daughters and granddaughters of a Freedom Fighter, unlike sons and grandsons, are excluded from the benefit of reservation in jobs.

4. From the response, so filed by the State, averments made by the letter petitioners are found to be correct. However, State justifies such action, by stating that "the issue of providing reservation in services for the children/grandchildren of Freedom Fighters was engaging attention of the Government since long. However, after thoughtful consideration of whole matter it has decided in the year 1984 that 2% reservation in services be provided to the children/grandchildren belonging to the State of H.P. in direct recruitment to all services/posts i.e. Class-1 to IV including all Public Sector Undertakings/ Board/Corporation. Since 1984, 2% reservation is being provided to the Children/grandchildren of Freedom Fighters. As per Scheme, the benefit of reservation is applicable in respect of sons/grandsons, daughters/ granddaughters of Freedom Fighters. The employed children/grandchildren and married daughters/ granddaughters of Freedom Fighters have been excluded from the scheme. So far as the question regarding giving reservation quota to the married Daughters/ granddaughters of Freedom Fighters is concerned, it is submitted that status of a married woman has to be construed in consonance with the general understanding of the word family as well as a status of married woman in the society. After marriage a married woman loses the status of being a member of parent's family though married daughter/granddaughters after marriage do not lose status of member of undivided family of her father for the purpose of property. Keeping this background in view it is not legally sustainable to include the married daughters/grand-daughters in reservation scheme. However, the divorced daughters/ grand-daughters and widow daughters/granddaughters who have not remarried have been legitimately and legally brought within the ambit and scope of definition of dependent of Freedom Fighters provided they are residing with and/or fully dependent on the family of Freedom Fighters".

(Emphasis supplied)

5. In crux, it is the State's stand that with the solemnization of marriage, daughter severs her relationship with her parental family, for she gets "transplanted" into the family of her husband, and as such, cannot claim herself to be part of family of a Freedom Fighter.

6. Also, earlier decision rendered by this Court in CWP No.4386 of 2015, titled as Neelam Kumari v. State of H.P. & others, for complying with the decision rendered in another writ petition, being CWP No.2958 of 2009, titled as Jyoti Kumari & others v. Secretary Education & another, is now subject matter of challenge before the Supreme Court of India.

7. On 8.11.2017, this Court passed the following order:

"Whether granting benefit of reservation of 2%, in employment under the State, only to children and particularly unmarried daughters of freedom fighters, is voilative of Articles 14-16 of the Constitution of India, is the issue which arises for consideration in the petition. Also, whether issue of discrimination on the basis of gender with the ward solemnizing marriage arises at all or not, needs to be examined.

On a letter petition addressed to the Chief Justice of this Court, suo motu cognizance was taken and present petition was registered as CWPIL. The issue raised is of prime importance and significance.

Let the Chief Secretary to the Government of Himachal Pradesh, file his personal affidavit placing on record policy of the State and the reasons in support thereof.

State shall also examine issue more so in light of law laid down by Apex Court in C.B. Muthamma v. Union of India and others, 1979(4) SCC 260 and other subsequent judgments. Needful be done within two weeks.

List on 29.11.2017.

8. Pursuant thereto, the Chief Secretary, Government of Himachal Pradesh, has filed his personal affidavit dated 5.12.2017, stating that definition of a "Freedom Fighter" stands explained vide Circulars dated 17.12.1985 and 21.12.1985, so as to mean:

"i) the person who has been sanctioned or will be sanctioned freedom fighters pension under the Freedom fighters pension scheme, 1972 and 1980 by the Government of India, Ministry of Home Affairs, New Delhi.

or

ii) The person who is receiving or will be granted financial assistance under the H.P. Freedom Fighters Financial Assistance Scheme, 1985.

iii) Only the children of the son of the freedom fighter will be taken under the definition of grand children of freedom fighters."

9. Stand taken by the Government, as reflected in the earlier reply-affidavit dated 10.10.2017, filed by the Deputy Secretary (GAD) to the Government of Himachal Pradesh, stands reiterated, further averring that "According to common knowledge and general understanding the married daughter does not constitute to be a part of the family in its real sense. A daughter of a freedom fighter after her marriage, gets herself transplanted into the family of her husband and cannot, therefore, be claimed to be a part of the family in its real sense of the freedom fighter her father at least for anything relating to her children".

10. In effect, the Government of the day reiterated that a married daughter gets "transplanted" into the family of her husband, severing her relationship with that of her paternal family, and as such is not entitled to the benefits of the Policy of reservation in the Government jobs.

11. We find the stand adopted by the State to be absolutely archaic and disappointing. It is certainly not in tune with the changing times. In fact, it is out of sync with the constitutional values and principles. Predominant mindset of male chauvinism is all pervading.

12. However, subsequently to Ishaan Pandit & Kinjiak M. Kaiia (supra), even this Court in CWP No.2958 of 2009, titled as Jyoti Kumari & others v. The Secretary Education & another, decided on 18.5.2015, has taken a contrary view, the one view which we are following.

13. We follow the subsequent decisions of the same Coordinate Benches on this issue. We are persuaded to so for two reasons - (i) decision of 1999 has lost is efficacy, (ii) much water has flown from since then and the law in sync with constitutional values stands crystalised by different courts of the country.

14. Long ago, the Apex Court in Miss C.B. Muthamma, i.F.S. v. Union of India & others, (1979) 4 SCC 260 (Two Judges), had an occasion to deal with Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961, providing that no married woman shall be entitled, as of right, to be appointed to the service. Though during the pendency of the petition, the said Rule stood deleted, but, while disposing of the petition, the Court observed that:

"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 misogvnous 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."

"9. Subject to what we have said above, we do not think it necessary to examine the averments of mala fides made in the petition. What we do wish to impress upon Government is the need to overhaul all Service Rules to remove the stain of sex discrimination, without waiting for ad hoc inspiration from writ petitions or gender charity."

(Emphasis supplied)

15. In Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai & another, (1987) 2 SCC 278 (Two Judges), the Apex Court, while construing the provisions of Section 125 of the Code of Criminal Procedure, entitling a parent to claim maintenance, by interpreting expression 'his', held both the siblings, i.e. son and the daughter, liable for the same.

16. Later on, in Savita Samvedi (Ms) & another v. Union of India & others, (1996) 2 SCC 380 (Two Judges), while dealing with a Railway Circular, entitling unmarried daughter alone for allotment of Railway accommodation, on out of turn basis, the Apex Court held the same to be unconstitutional, in violation of Article 14 of the Constitution of India, holding the married daughter to be at par with an unmarried one.

17. The Apex Court in Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125 (Three Judges), has held that Article 21 of the Constitution of India reinforces "rights to life". Equality, dignity of person and right to development are inherent rights in every human being. Life in its expanded horizon includes all that give meaning to a person's life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and  political rights without discrimination and on footing of equality. Equally, in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Article 51A (h) and (j) of the Constitution of India, not only facilities and opportunities are to be provided for, but also all forms of gender based discrimination should be eliminated. It is a mandate to the State to do these acts. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights. Also that:

"37. The public policy and constitutional philosophy envisaged under Articles 38, 39, 46, and 15(1) and (3) and 14 is to accord social and economic democracy to women as assured in the preamble of the economic empowerment and social justice to women for stability of political democracy. In other words, they frown upon gender discrimination and aim at elimination of obstacles to enjoy social, economic, political and cultural rights on equal footing. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society . Contours of law in an evolving society must constantly keep changing as civilisation and culture advances. The customs and mores undergo change with march of time. Justice to the individual is one of the highest interest of the democratic State. Judiciary cannot protect the interests of the common man unless it would redefine the protections of the Constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable."

"39. Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps into iron out such creases and ensures equality of protection to individuals as well as group liberties. Man's status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Therefore, law is the foundation on which the potential of the society stands "

18. In a case where an Act prohibited employment of women in any part of the premises where liquor was consumed by the public, the apex Court, relying upon the Convention on the Elimination of All Forms of Discrimination against Women, 1979 and the Beijing

Declaration, as also the earlier judgments rendered in Air India v. Nergesh Meerza, (1981) 4 SCC 335; Randhir Singh v. Union of In ida, (1982) 1 SCC 618; Madhu Kish war v. State of Bihar, (1996) 5 SCC 125; Vishaka v. State of Rajasthan, (1997) 6 SCC 241; MCD v. Female Workers (Muster Roll), (2000) 3 SCC 224; and Liverpool & London S.P. & . Assn. Ltd. i/. M.V. Sea Success I, (2004) 9 SCC 512, the Apex Court in Anuj Garg & others v. Hotel Association of India & others, (2008) 3 SCC 1 (Two Judges), observed that:

"21. When the original Act was enacted, the concept of equality between two sexes was unknown. The makers of the Constitution intended to apply equality amongst men and women in all spheres of life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was sought to be achieved. Although the same would not mean that under no circumstance, classification, inter alia, on the ground of sex would be wholly impermissible but it is trite that when the validity of a legislation is tested on the anvil of equality clauses contained in Articles 14 and 15, the burden therefor would be on the State. While considering validity of a legislation of this nature, the court was to take notice of the other provisions of the Constitution including those contained in Part IV-A of the Constitution."

(Emphasis supplied)

In the very same Report, the Court further took note of the changing global scenario and the factum of the hotel management having opened up vista for young women for employment. It re-affirmed that right of employment itself may not be a fundamental right but in terms of Articles 14 & 16, each person, similarly situate, has a fundamental right to be considered therefor.

19. In National Legal Services Authority v. Union of India & others, (2014) 5 SCC 438 (Two Judges), the Apex Court observed that:

"The rule of law is not merely public order. The rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to live in dignity and development himself. The human being and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive rule of law "is the rule of proper law, which balances the needs of society and the individual". This is the rule of law that strikes a balance between society's need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. It is the duty of the Court to protect this rich concept of the rule of law."

(Emphasis supplied)

20. In Charu Khurana & others v. Union of India & others, (2015) 1 SCC 192 (Two Judges), noticing that only women makeup artists were declined membership of an association, holding such action to be unconstitutional, the Apex court observed that:

"3. Giving emphasis on the role of women, Ralf Waldo Emerson, the famous American Man of Letters, stated "A sufficient measure of civilization is the influence of the good women". Speaking about the democracy in America, Alexa De Tocqueville wrote thus: "If I were asked.... to what singular prosperity and growing strength of that people (Americans) ought mainly to be attributed.

I should reply; to the superiority of their women". One of the greatest Germans has said: "The Eternal Feminine draws us upwards".

4. Lord Denning in his book Due Process of Law has observed that a woman feels as keenly thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom-develop her personality to the full-as a man. When she marries, she does not become the husband's servant but his equal partner. If his work is more important in life of the community, her's is more important in the life of the family. Neither can do without the other. Neither is above the other or under the other. They are equals."

"8. The equality principles were reaffirmed in the Second World Conference on Human Rights at Vienna in June 1993 and in the Fourth World Conference on Women held in Beijing in 1995. India was a party to this Convention and other Declarations and is committed to actualize them.

In 1993 Conference, gender-based violence and all categories of sexual harassment and exploitation were condemned. A part of the Resolution reads thus:

"The human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights. The World Conference on Human Rights urges governments, institutions, intergovernmental and non-governmental organizations to intensify their efforts for the protection of human rights of women and the girl child.""

"32. The purpose of referring to the same is to understand and appreciate how the Directive Principles of State Policy and the Fundamental Duties enshrined Under Article 51A have been elevated by the interpretative process of this Court. The Directive Principles have been regarded as soul of the Constitution as India is a welfare State. At this juncture, it is apt to notice the view expressed by a two-judge Bench of this Court in Ashoka Smokeless Coal India (P) Ltd. vs. Union of India, (2007) 2 SCC 640 wherein it has been laid down that:

"106 the Directive Principles of State Policy provide for a guidance to interpretation of fundamental rights of a citizen as also the statutory rights.""

21. In Ishan Pandit v. State of H.P. & others, AIR 1999 HP 1, this Court, in dealing with a case of reservation provided for admission to MBBS/BDS Courses, restricted only to the male members of the Freedom Fighter, did uphold the view propagated by the State in its response. This decision stands subsequently followed by another Division Bench of this Court in Kinjlak M. Kaiia v. Himachal Pradesh Krishi Vishvavidyaia, 2000 (3) Shim. LC 413.

22. A Full Bench of the Jammu and Kashmir High Court in State of Jammu and Kashmir v. Dr. Sushee/a Sawhney, AIR 2003 Jammu and Kashmir 83, had an occasion to deal with a question, whether marriage of daughter of a permanent resident of the State of Jammu and Kashmir to a non-resident, would disentitle her from acquisition of immoveable property in the State, and lose right for employment in the State or not. After appreciating various principles, the Court eventually held that daughter of a permanent resident, on marrying a non-resident, would not lose her status of permanent resident of the State of Jammu and Kashmir.

23. We notice that, under the instant Policy, the object and purpose of providing reservation is to confer benefit upon the wards of the Freedom Fighters. Stand taken by the State that daughter gets transplanted into the family of her husband, in view of what the Hon'ble Supreme Court has observed, noticed by us supra, is not in tune with the changing times. The primary object and purpose of the Policy is not to confer benefits only on the male members of the Freedom Fighters. It is to acknowledge the sacrifices made by the Freedom Fighters, by giving employment to their wards.

24. It is a settled principle of law that classification must not be arbitrary, but must be rational. It must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics, must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act/Policy. The differentia which is the basis of classification, and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.

25. We notice that there is 2% reservation for the Wards of Freedom Fighters in Civil appointment of the State and in various corporations and boards of the State. However, the same has been limited only to the sons, grandsons, unmarried daughters and un-married granddaughters. Whereas married sons and grandsons are entitled to enjoy the said benefit of reservation, married daughters and granddaughters have not been considered as Wards of Freedom Fighters and are, thus, not eligible to be considered against the quota of reservation meant for wards of Freedom Fighters.

26. This has to be tested on the provisions of the Constitution, specifically Articles 14 and 15(1), and 16 of the Constitution, relating to "discrimination on the basis of sex". Sons and grandsons of freedom fighters are eligible to be considered for the quota under the category "Wards of Freedom Fighters" even though married, but not the married daughters and granddaughters.

27. The primary object to provide employment to wards of freedom fighters is to recognize the outstanding services rendered by them to the Nation during struggle for Independence and thus their wards are given benefit towards employment by making reservation to them under the category of "Wards of Freedom Fighters". In our considered view, Daughters and Granddaughters, even if married, would be eligible for public employment.

28. A Full Bench of the High Court of Calcutta in WPST No.447 of 2013, titled as The State of West Bengal & others v. Purnima Das & others, has also taken a similar view, wherein it has been held that 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.

29. Dealing with an identical issue, in Santosh Kumar Upad hay ay v. State of U.P. and others, (2016) 1 ILR (All) 153, the High Court of Allahabad held that it would be anachronistic to discriminate against married daughters by confining the benefit of the horizontal reservation in this case only to sons (and their sons) and not to unmarried daughters. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter ceases to be part of the family of her parents upon her marriage must undergo a rethink in contemporary times. The law cannot make an assumption that married sons alone continue to be members of the family of their parents, and that a married daughter ceases to be a member of the family of her parents. Such an assumption is constitutionally impermissible because it is an invidious basis to discriminate against married daughters and their children. A benefit which a social welfare measure grants to a son of a freedom fighter, irrespective of marital status, cannot be denied to a married daughter of a freedom fighter.

30. We find that another Division Bench of the Allahabad High Court in Writ Petition No.41279 of 2014, titled as Isha Tyagi v. State of U.P. & others, while taking a similar view, has observed that the "State Government has taken a policy decision to grant a horizontal reservation of 2% to the descendants of freedom fighters. While doing so, the State Government has qualified the condition of eligibility by stipulating that a son or a daughter would be entitled to the benefit of the reservation. However, it has been stated in the relevant condition that the law department had opined that this benefit can be extended only to an unmarried daughter of a freedom fighter. Consequently, whereas the son's son would be eligible to apply for admission, the children of a daughter stand excluded. Exclusion of a granddaughter is plainly an act of hostile discrimination which is violative of the fundamental right guaranteed under Articles 14 and 15 of the Constitution. The condition which has been imposed by the State does not prescribe financial dependence. In fact, the clarification is to the effect that it is not necessary that the son of a freedom fighter should be financially dependant upon him. The basis and object of the horizontal reservation of 2% is to recognise the seminal role in the freedom struggle played by freedom fighters. It is in recognition of their contribution to the freedom struggle that a benefit of reservation is extended to descendants of freedom fighters. This being the rationale, there is no reason or justification to exclude a married daughter and consequently the children of a married daughter. Once a decision has been taken to extend the benefit of horizontal reservation to descendants of freedom fighters, whether the descendant is a son or a daughter should make no difference whatsoever. In fact, any discrimination against a daughter would be plainly discrimination on grounds of gender. The guarantee under Article 15 of the Constitution is broad enough to encompass gender discrimination and any discrimination on grounds of gender fundamentally disregards the right to equality, which the Constitution guarantees".

31. The action of the respondents by not giving reservation to married women and not allotting them Wards of Freedom Fighter Certificate, is illegal and arbitrary and an example of colorable exercise of power, for marriage does not have and should not have a proximate nexus with identify. The identity of a woman, as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasise that it is not open to the State, if it has to act in conformity with the fundamental principles of equality which are embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters by depriving them of the benefit of the reservation, which is made available to a son irrespective of his marital status.

32. This Court in Jyoti Kumari (supra) and Neelam Kumari (supra) has taken a similar view. Noticeably, the State having preferred, SLP No.31435 of 2016, titled as H.P. Secretariat Chief Secretary & others v. Neelam Kumari, but, as on date, the efficacy of these decisions remains in place.

33. Thus, we hold that the Policy of the State, confining benefits to the unmarried daughter alone, unlike married son, is not in line with the object, which is sought to be achieved by conferring benefit of reservation, horizontal in nature, to the wards of Freedom Fighters. The object is to acknowledge the sacrifices made by the Freedom Fighters, by providing benefit to their wards. It is not to perpetuate the lineage of legacy only through a male descendent. The object also cannot be to perpetuate discrimination on the basis of sex.

34. We are of the considered view that, of late, consistently, this Court has taken a view that the State cannot discriminate on the ground of gender, while giving benefit of reservation only to the married sons and not the married daughters, being wards of the Freedom Fighter. The Policy to this extent is absolutely arbitrary and illegal and thus needs to be quashed and set aside. Ordered accordingly.

35. The questions are, thus, answered as under, by holding that {(1) & (2)} the Policy of the State is discriminatory, and (3) in confining benefits of reservation to married sons unlike married daughters, there is no nexus with the object sought to be achieved in providing reservation for wards of Freedom Fighters.

36. Hence, present petition stands disposed of, in the aforesaid terms, so also pending application(s), if any.

We place on record our appreciation for the assistance rendered by Mr. Deven Khanna, learned Amicus Curiae. He undertakes to inform the letter petitioners about the outcome of the present petition. Learned Advocate General undertakes to communicate the order to the Chief Secretary, Government of Himachal Pradesh, for taking consequential action.