Ms. Savita
Samvedi & Anr Vs. Union of India & Ors [1996] INSC 157
(30 January 1996)
Punchhi,
M.M.Punchhi, M.M.Venkataswami K. (J) Punchhi, J.
CITATION:
1996 SCC (2) 380 JT 1996 (1) 680 1996 SCALE (1)598
ACT:
HEAD NOTE:
Special
leave granted.
This
appeal voices a cry for gender justice.
The
two appellants before us are a married daughter and father. The second
appellant was in service of the Indian Railways. While in service, he was
allotted quarter No.30/3, Railway Colony, Kishan Ganj, Delhi. He was due to retire on
31.12.1993. It is a different matter that he was permitted to retain the
railway quarter for the maximum permissible period of eight months thereafter upto
31.8.1994. Much prior to retirement, the second appellant on 18.3.1993
requested the railway authorities concerned in permitting his married daughter,
the first appellant to share the accommodation allotted to him on the basis
that she was a railway employee at Delhi described as "Sr. S.O./T.A./D.K.Z.". He pointed out that he
had two sons working out of Delhi, but
neither of them was a railway employee, whereas his married daughter was one,
and he needed her to look after him and his ailing wife. His request was
granted favorably in as much as on 31.5.1993 permission was granted to the
first appellant to share railway quarter of her father with effect from
16.3.1993 with the rider that she would not be entitled for regularization of
the railway quarter after the retirement of the second appellant. All the same,
a day short of the retirement of the second appellant, the first appellant laid
claim to the regularization of the quarter contending that her brothers were
not in a position to look after her parents, whereas she was, and would in
future also look after her parents. The prayer was declined on 31.1.1994 on the
ground that a married daughter was not eligible for regularization of a railway
quarter. The second appellant also made a representation to the Divisional and
Superintending Engineer (Estates, Northern Railways, quoting instances where
regularization of railway accommodation had been made in favour of married
daughters. The request was forwarded by the Divisional and Superintending
Engineer to the General Manager, Northern Railways on 4.7.1994 pointing out
that the first appellant was in Railway Service w.e.f. 25.2.1973, sharing
accommodation with her father with effect from 16.3.1993 and that she was not
drawing House Rent Allowance on her part with effect from that date. Her
request was declined because of the Railway Circular on the subject. Both the
appellants then took the matter to the Central Administrative Tribunal,
Principal Bench, New
Delhi but without any
success. They have thus knocked the doors of this Court for appropriate relief.
The
respondents in defence rely upon the Railway Board Circular dated 11.8.1992, whereunder
regularization is permitted on terms. The operative part thereof reads as follows
:
"Reference
Railway Ministry's letters No. E(G) 82 or 1-23 dated 27.12.1982 and E (G) 85 OR
1-9 dated 15.1.1990 OR 1-11 dated 15.3.91 and 1.7.91, conveying instructions
that when a Railway servant who is an allottee of Railway accommodation retires
from service, his/her son, unmarried daughter, wife, husband or father as the
case may be, may be allotted Railway accommodation on out of turn basis subject
to fulfillment of prescribed condition.
The
Ministry of Railways have reviewed the matter and in supersession of the
instructions vide their letter NO. E(G) 82 OR dated 27-12-82 have decided to
extend the scope of this concession to the married daughter of a retiring
official, in case he does not have any son or in case where the married
daughter is that only person who is prepared to maintain the parent(s) and the
sons are not in a position to do so (e.g. minor sons). This will be subject to
the conditions already prescribed which are applicable to the other eligible
wards seeking such concessions.
The
decision communicated above will also be equally applicable in the case of
death/medical unfitness." As is obvious from the plain reading of the
Circular, the married daughter of a retiring official is eligible to obtain
regularization if her retiring father has no son. She thus has a foothold, not
to be dubbed as an outcaste outright. In case he has a son, she shall not be in
a position to do so, unless he is unable to maintain the parents, e.g. like a
minor son, but then she should be the only person who is prepared to maintain
her parents. It is thus plain that a married daughter is not altogether
debarred from obtaining regularization of a railway quarter, but her right is
dependent on contingencies. The authorities concerned as also the Central
Administrative Tribunal seemed to have overlooked the important and predominant
factor that a married daughter would be entitled to regularization only if she
is a railway employee as otherwise, she by mere relationship with the retiring official,
is not entitled to regularization. Logically it would lead to the conclusion
that the presence of a son or sons, able or unable to maintain the parents,
would again have to be railway employees before they can oust the claim of the
married daughter. We are not for the moment holding that they would be capable
of doing so just because of being males in gender. Only on literal
interpretation of the Circular, does such a result follow, undesirable though.
A
common saying is worth pressing into service to blunt somewhat the Circular. It
is "A son is a son untill he gets a wife. A daughter is a daughter
throughout her life." The retiring official's expectations in old age for
care and attention and its measure from one of his children cannot he faulted,
or his hopes dampened, by limiting his choice. That would be unfair and
unreasonable. If he was 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 judgment on the point and be not respected by the railways
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 of the Constitution. The
eligibility of a married daughter must be placed at 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, abovequoted.
The
Tribunal took the view that when the Circular dated 11.8.1992 had itself not
specifically been impugned before it and ex-facie the conditions contained in
the said Circular had not been satisfied in the present case, no relief need be
given to the appellants. The Tribunal viewed that when there were two major
sons of the second appellant, gainfully employed, the fact that they were not
railway employees, not residing in Delhi, did not alter the situation that the
terms of the Circular dated 11.8.1992 had not been satisfied, under which alone
regularization was permissible. As brought about before, the Tribunal
overlooked this aspect that the Circular was meant only to enlist the eligibles,
who could claim regularization, but the important condition of one being a
railway employee had to be satisfied before claim could be laid. In the instant
case, the first appellant, on that basis, alone was eligible (subject to gender
disqualification going). So the second appellant could exercise his
choice/option in her favour to retain the accommodation, obligating the railway
authorities to regularise the quarter in her favour, subject of course to the
fulfillment of other conditions prescribed. The error being manifest is hereby
corrected, holding the first appellant in the facts and circumstances to be the
sole eligible for regularization of the quarter.
It was
also pointed out before us that the Central Administrative Tribunal, Bombay
Bench in one of its decisions in OA 314 of 1990 decided on 12.2.1992 (Ann. P-8)
relying upon its own decision in Ms. Ambika R. Nair and another vs. Union of
India and others (T.A. No. 467 of 1986) in which the earlier Circular of the
railway board dated 27.12.1982 had been questioned, held that the same to be
unconstitutional per se as it suffered from the twin vices of gender
discrimination and discrimination inter se among women on account of marriage.
We have also come to the same view that the instant case is of gender
discrimination and therefore should be and is hereby brought in accord with
Article 14 of the Constitution. The Circular shall be taken to have been read
down the deemed to have been read in this manner from its initiation in favour
of the married daughter as one of the eligibles, subject, amongst others, to
the twin conditions that she is (i) a railway employee; and (ii) the retiring
official has exercised the choice in her favour for regularization. It is so
ordered.
For
the reasons stated above, this appeal is allowed and direction is issued to the
respondents to grant regularization of the quarter in favour of the first
appellant with effect from the date of retirement of the second appellant and
regulate/re-adjust the charges on account of house rent accordingly. There
shall be no order as to costs.
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