Case Law Details
1. Magnificent question of law that has cropped up for consideration in this writ petition is whether the State Government is justified in impliedly excluding married daughter of the affected/displaced family from consideration for employment under the Chhattisgarh State Model Rehabilitation Policy, 2007, as amended, on the ground of her marriage.
2. The above-stated question of law arises for consideration in the following factual matrix of the case: –
3. The petitioner’s father Itwar Singh was the owner of land bearing Khasra Nos. 73/2, 105/1 and 106/2, total area ad measuring 1.16 acres situate at Village Madwamouha, Tahsil Katghora, District Korba. These lands were acquired by the State Government in exercise of the provisions contained in the Land Acquisition Act, 1894 (for short ‘the LA Act’) for dumping ash products oozing out from the power unit owned by respondent No. 2 Chhattisgarh State Electricity Production Company Limited and ultimately, award was passed on 29-8- 2007 and thereafter, lands vested with the State Government.
4. Apart from payment of compensation to the affected family under the LA Act, the State Government has also framed the Chhattisgarh State Model Rehabilitation Policy, 2007 (for short ‘the R&R Policy’) highlighting the object of rehabilitation policy and defining the affected family under the policy.
5. The petitioner being married daughter of the land oustee, made an application in terms of the R&R Policy stating inter alia that she is entitled for employment as her father’s land has been subjected to acquisition and as per the R&R policy, she is eligible being daughter to be considered for employment being the member of affected family. The said application has been rejected by respondents No. 2 & 3 on the ground that as per the R&R Policy, being married daughter she is not included and therefore, she is not entitled for employment.
6. Feeling aggrieved and dissatisfied against the rejection of her application, the petitioner herein has filed the instant writ petition stating inter alia that exclusion of married daughter from consideration for employment only on the ground that she is married, suffers from gender discrimination. It has further been stated that the object of providing employment to the affected/displaced person is to rehabilitate the family whose sole means of earning i.e. land has been subjected to acquisition and to provide them food, shelter and other facilities so as to lead a better life than the life which the land oustee was leading before the acquisition of his/her land. Thus, reading down the R&R Policy to exclude married daughter from consideration only on the ground of marriage is not only gender discrimination but also against the object of the R&R Policy to provide food, shelter and other facilities to the members of the affected family to lead a dignified life. Therefore, clause 2.1 (c) of the R&R Policy to the extent of excluding married daughter from consideration for employment, be declared void and inoperative and rejection of the petitioner’s application be also struck down.
7. Return on behalf of the State/respondents No. 1 & 5 has been filed holding that married daughter is not entitled for employment.
8. Respondents No. 2 to 4 have also filed their separate return stating inter alia that by virtue of clause 2.1 (c) of the R&R Policy, married daughter is not entitled to get employment, as she does not come within the purview of affected family and as such, she is not entitled to claim employment as a matter of right. Marriage brings about separation of married daughter from her biological parents and her inclusion as a member of her matrimonial home, as she ceases to be dependent member of the family of her parents after marriage. Therefore, the writ petition deserves to be dismissed.
9. Mr. Sanjay Patel, learned counsel appearing for the petitioner, would submit that the object of promulgation of the Chhattisgarh State Model Rehabilitation Policy, 2007 is to restore status and position of the affected family by providing food, shelter and employment as it was before the acquisition of their land which was the sole means of earning their livelihood so that they can again come back to the main stream of the society. Elaborating his submission, he would further submit that marriage is a social circumstance and excluding married daughter from consideration for employment is based on gender discrimination. He would also submit that daughter remains a daughter of her parents even after marriage and marriage can never be considered to be a disqualification for a daughter to which she is otherwise entitled for. It is further submitted that in the present case, the land oustee has only two daughters, both are married and therefore, he has no other choice except to nominate the petitioner, one of his daughters, for employment, as she is residing with her father even after marriage to look after her parents. Therefore, implied exclusion of married daughter from consideration for employment only on the basis of marriage is not only violative of Articles 14 and 15 of the Constitution of India, but also violates the nature and object for which the welfare State has formulated the Model Rehabilitation Policy for land oustee, as such, it be held that the petitioner, even though is a married daughter, is included in the R&R Policy and is entitled for consideration for employment under the said R&R Policy.
10. Mr. Gary Mukhopadhyay, learned Deputy Govt. Advocate appearing for the State/respondents No. 1 and 5, would submit that the State Government in exercise of power conferred under Article 162 of the Constitution of India i.e. the executive power of the State, has framed the Chhattisgarh State Model Rehabilitation Policy, 2007 for the benefit of members of land oustees as a consequence of they are being affected by acquisition of their lands and it is a policy decision of the Government to exclude married daughter as dependent of person whose land has been acquired. The scope of interference in the policy decision of the Government is extremely limited and it has not to be interfered with unless it is arbitrary and is grossly illegal.
11. Mr. K.R. Nair, learned counsel for respondents No. 2 to 4 would submit that the petitioner has no right whatsoever, much less an enforceable right, under the R&R Policy of the State Government to claim employment. He would further submit that the said policy permits employment to a dependent family member and from time immemorial, institution of family in India is governed by certain unbroken customs. One of the customs is that once a daughter is married and leaves for her matrimonial home, she is not treated as dependent on her natural parents, she is treated as dependent on her husband and his family. Since she is not dependent on the family of land oustee after marriage, she is denied employment under the R&R Policy. It is, therefore, on account of her non dependency, she is denied employment which is available to a dependent member and as such, the contention that she has been discriminated on the basis of her gender is a far-fetched submission which deserves to be rejected.
12. I have heard learned counsel for the parties, thoughtfully considered the submissions raised herein and also gone through the record with utmost circumspection.
13. The State Government in exercise of power conferred under Article 162 of the Constitution of India has framed the Chhattisgarh State Model Rehabilitation Policy, 2007 (as amended) to restore the status and dignity of land oustee whose land has been subjected to acquisition for the projects of Governmental and private institutions in addition to payment of compensation under the Land Acquisition Act and to provide for their shelter and employment also. Clause 1.1.3 of the R&R Policy is one of the objectives to provide permanent employment. Likewise, clause 1.2.7 of the R&R Policy provides that if 75% of land of the last oustee / Bhumi Swami has been acquired for industrial purpose then as per qualification, employment will be provided to one of the members of his/her family. Clause 2 of the R&R Policy defines affected person / affected family. Clause 2.1 (c) of the R&R Policy provides as under:
14. Meaning of “affected family” has been defined. The definition of “affected family” includes wife or husband, minor children, old parents dependent on the affected person, widow mother or sister and unmarried daughter. Thus, the aforesaid policy expressly provides that unmarried daughter is the member of the affected family, but married daughter has not been expressly included as member of the affected family, in other words, she has been impliedly excluded as a member of the affected family.
15. The question as formulated in the opening paragraph of this judgment is whether exclusion of married daughter in the R&R policy is just and fair. The word ‘rehabilitation’ has been defined in the Black’s Law Dictionary (Sixth Edition). It means, “Investing or clothing again with some right, authority, or dignity. Restoring person or thing to a former capacity, reinstating, qualifying again. Restoration of an individual to his greatest potential, whether physically, mentally, socially, or vocationally.”
16. The Supreme Court has occasion to define the meaning of rehabilitation in its judgments. Some of them may be noticed herein usefully and profitably.
17. Way back in the year 1986, in the matter of The Collector of 24 Parganas and others v. Lalit Mohan Mullick and others while defining the meaning of “rehabilitation”, the Supreme Court highlighting the object of rehabilitation observed as under: –
“13. In Collins Dictionary of the English Language, the meaning for the word ‘rehabilitate’ is given as “to help a person (who is physically or mentally disabled or has just been released from prison) to re adapt to society or a new job as by vocational guidance, retraining or thereby…….”. By rehabilitation what is meant is not to provide shelter alone. The real purpose of rehabilitation can be achieved only if those who are sought to be rehabilitated are provided with shelter, food and other necessary amenities of life. It would be too much to contend, much less to accept, that providing medical facilities would not come within the concept of the word ‘rehabilitation’. ……”
18. In the matter of Narmada Bachao Andolan v. Union of India, the Supreme Court noticed that displacement of people living on the proposed project sites and the areas to be submerged is an important issue and a properly drafted R&R plan would improve the living standards of displaced persons after displacement, and held as under in paragraph 241: –
“241. Displacement of people living on the proposed project sites and the areas to be submerged is an important issue. Most of the hydrology projects are located in remote and inaccessible areas, where local population is, like in the present case, either illiterate or having marginal means of employment and the per capita income of the families is low. It is a fact that people are displaced by projects from their ancestral homes. Displacement of these people would undoubtedly disconnect them from their past, culture, custom and traditions, but then it becomes necessary to harvest a river for the larger good. A natural river is not only meant for the people close by but it should be for the benefit of those who can make use of it, being away from it or near by. Realising the fact that displacement of these people would disconnect them from their past, culture, custom and traditions, the moment any village is earmarked for takeover for dam or any other developmental activity, the project-implementing authorities have to implement R&R programmes. The R&R plans are required to be specially drafted and implemented to mitigate problems whatsoever relating to all, whether rich or poor, landowner or encroacher, farmer or tenant, employee or employer, tribal or non-tribal. A properly drafted R&R plan would improve the living standards of displaced persons after displacement.”
19. Similar is the decision rendered by the Supreme Court in the matter of N.D. Jayal and another v. Union of India and others in which Their Lordships of the Supreme Court have held that the land oustees have a right under Article 21 of the Constitution of India to lead a decent life and earn livelihood in the rehabilitated locations, and further held that rehabilitation of the land oustees is a logical corollary of Article 21. Paragraph 60 of the report reads as follows: –
“60. Rehabilitation is not only about providing just food, clothes or shelter. It is also about extending support to rebuild livelihood by ensuring necessary amenities of life. Rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in a better position to lead a decent life and earn livelihood in the rehabilitated locations. Thus observed this Court in Narmada Bachao Andolan case2 . The overarching projected benefits from the dam should not be counted as an alibi to deprive the fundamental rights of oustees. They should be rehabilitated as soon as they are uprooted. And none of them should be allowed to wait for rehabilitation. Rehabilitation should take place before six months of submergence. Such a time-limit was fixed by this Court in B.D. Sharma v. Union of India4 and this was reiterated in Narmada1 . This prior rehabilitation will create a sense of confidence among the oustees and they will be in a better position to start their life by acclimatising themselves with the new environment.”
20. Likewise, in the matter of State of Madhya Pradesh v. Narmada Bachao Andolan and another, the Supreme Court has clearly held that the land oustees are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned and observed as under: –
“Thus, from the above referred judgements, it is evident that acquisition of land does not violate any constitutional / fundamental right of the displaced persons. However, they are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned.”
21. Thus, having examined object and nature of the rehabilitation policy which clearly provides that rehabilitation is not confined to extend the benefit of food, cloth and shelter, but it also further extends to provide all necessary amenities of life which also include employment to member of the land oustee / affected family. The member of the affected family is entitled for resettlement and rehabilitation as per the policy framed in that behalf by the Government and as such, the policy framed for rehabilitation of a land oustee must be just, fair, reasonable and consistent with the provisions of the Constitution of India, particularly Articles 14 and 15.
22. As pointed out in foregoing paragraphs that married daughter has been impliedly excluded to be member of affected family as defined in clause 2 of the R&R Policy appears to be on the ground that upon marriage, daughter ceases to be member of her parental family and she becomes member of her matrimonial family.
23. It is well settled that marriage is an institution/sacred union not only legally permissible but also basic civil right of a man and woman. One of the most important inevitable consequences of marriage is the reciprocal support and marriage is an institution has great legal significance. Right to marry is necessary concomitant of right to life guaranteed under Article 21 of the Constitution of India as right to life includes right to lead a healthy life. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed or defined by marital status.
24. Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on, on this planet. (See Mr. ‘X’ v. Hospital ‘Z’6.)
25. In the matter of Indra Sarma v. V.K.V. Sarma Their Lordships of the Supreme Court have clearly held that marriage is one of the basic civil rights of man/woman and observed pertinently in paragraphs 24 & 25 as under:-
“24. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the Consortium Omnis Vitae which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage is an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, succession ship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship. 25. Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a women, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O’Regan, J., in Dawood v. Minister of Home Affairs (2000) 3 SA 936 (CC) noted as follows:
“Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well. The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends….””
26. In a very recent decision in the matter of Malathi Ravi, M.D. v. B.V. Ravi, M.D., Their Lordships of the Supreme Court have held as under: –
“Marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock, have pledged themselves to the institutional norms and values and promised to each other a cemented bond to sustain and maintain the marital obligation. It stands as an embodiment for continuance of the human race.
27. In the matter of Miss C.B. Muthamma v. Union of India and others in the context of Indian Foreign Service (Conduct and Discipline) Rules, 1961, which prohibited appointment of married woman to such service, the Supreme Court has held as under:-
“6.…..Our women is a said reflection on the distance between Constitution in the book and Law in action. And if 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.”
28. In the matter of Dr. (Mrs.) Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai and another, Their Lordships of the Supreme Court while considering the provisions of Section 125 of the Code of Criminal Procedure, 1973 have held that a daughter after her marriage does not cease to be a daughter of her father or mother.
29. In the matter of Savita Samvedi (Ms) and another v. Union of India and others, Their Lordships of the Supreme Court have quoted the following saying with approval: –
“6. A common saying is worth pressing into service to blunt somewhat the Circular. It is — “A son is a son until he gets a wife. A daughter is a daughter throughout her life.””
Their Lordships further held that provision in Railway Board Circular restricting the eligibility of married daughter, of the retiring official, only to cases where such official has no son or the daughter is the only person prepared to maintain the parents and the sons are not in a position to do so, suffers from gender discrimination by holding as under: –
“7. The retiring official’s expectations in old age 10 for care and attention and its measure from one of his children cannot be faulted, or his hopes dampened, by limiting his choice. That would be unfair and unreasonable. If he has only one married daughter, who is a railway employee, and none of his other children are, then his choice is and has to be limited to that railway employee married daughter. He should be in an unfettered position to nominate that daughter for regularization of railway accommodation. It is only in the case of more than one children in railway service that he may have to exercise a choice and we see no reason why the choice be not left with the retiring official’s judgement on the point and be not respected by the Railway authorities irrespective of the gender of the child. There is no occasion for the Railways to be regulating or bludgeoning the choice in favour of the son when existing and able to maintain his parents. The Railway Ministry’s Circular in that regard appears thus to us to be wholly unfair, gender-biased and unreasonable, liable to be struck down under Article 14 of the Constitution. The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit of the earlier part of the Circular, referred to in its first paragraph, above quoted.”
30. In the matter of Air India Cabin Crew Assn. v. Yeshaswinee Merchant, Their Lordships of the Supreme Court have held that the discrimination only on the basis of sex is not permissible subject to one exception and observed as under:-
“41. In English law “but-for-sex” test has been developed to mean that no less favorable treatment is to be given to women on gender based criterion which would favour the opposite sex and women will not be deliberately selected for less favorable treatment because of their sex. It is on this “but-for-sex” test, it appears in Nergesh Meerza case the three-Judge Bench of this Court did not find the lower retirement age from flying duties of air hostesses as discrimination only based on sex. It found that the male and female members of crew are distinct cadres with different conditions of service. The service regulation based on the agreements and settlement fixing lower retirement age of air hostesses was not struck down.
42. The constitutional prohibition to the State not to discriminate citizens only on sex, however, does not prohibit a special treatment to the women in employment on their own demand…………..”
31. In the matter of Shreejith L. v. Director of Education, Kerala, Their Lordships have held that marriage by itself does not disqualify the person concerned from seeking employment and held as under:-
“28. …While it is true that marriage by itself does not in view of the language employed in the scheme, disqualify the person concerned from seeking a compassionate appointment…”
32. Very recently, in the matter of Charu Khurana v. Union of India, Their Lordships of the Supreme Court while considering the question of gender justice observed as under:
“33. … On a condign understanding of clause (e), it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced. Be it stated, dignity is the quintessential quality of a personality and a human frame always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to all citizens and see that they are not deprived of by reasons of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.
41. The aforesaid pronouncement clearly spells out that there cannot be any discrimination solely on the ground of gender. It is apt to note here that reservation of seats for women in panchayats and municipalities have been provided under Articles 243(d) and 243(t) of the Constitution of India. The purpose of the constitutional amendment is that the women in India are required to participate more in a democratic set-up especially at the grass root level. This is an affirmative step in the realm of women empowerment. The 73rd and 74th Amendments of the Constitution which deal with the reservation of women has the avowed purpose, that is, the women should become parties in the decision-making process in a democracy that is governed by the rule of law. Their active participation in the decision-making process has been accentuated upon and the secondary role which was historically given to women has been sought to be metamorphosed to the primary one. The sustenance of gender justice is the cultivated achievement of intrinsic human rights. Equality cannot be achieved unless there are equal opportunities and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity.”
33. In the matter of National Legal Services Authority v. Union of India, the Supreme Court recognized that gender identity, is an integral part of sex within the meaning of Articles 15 and 16 of the Constitution of India and no citizen can be discriminated on the ground of gender. The Supreme Court observed as follows:
“We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.”
34. Thus, from the aforesaid cases it is quite vivid that marriage is a social circumstance and basic civil right of man and woman, and marriage by itself is not a disqualification. A daughter remains a daughter after her marriage and does not cease to be a daughter of her father or mother. Thus, denial of employment, included in the rehabilitation, to married daughter of an affected family (land oustee) is gender-biased and unreasonable and violative of Articles 14 & 15 of the Constitution of India as well as Article 21, as rehabilitation of a land oustee is logical corollary of Article 21 of the Constitution of India.
35. As a fallout and consequence of aforesaid discussion, the writ petition is allowed and consequently, clause 2.1 (c) of the R&R Policy regarding employment being violative and discriminatory to the extent of excluding married daughter from consideration for employment, is hereby declared void and inoperative. The impugned order dated 22-11-2012 (Annexure P-5) is hereby quashed. Clause 2.1 (c) of the Chhattisgarh State Model Rehabilitation Policy, 2007 be read in the manner to include the married daughter as one of the eligible subject to fulfillment of other conditions. As a consequence, the respondents are directed to consider the claim of the petitioner for being appointed afresh in accordance with law keeping in view that her father’s land was acquired way back in the year 2007 and her application was rejected on 22-11-2012, preferably within a period of forty-five days from the date of receipt of certified copy of this order. No order as to cost(s).
