Holding that the government’s policy to deny reservation to married daughters of freedom fighters in government jobs is arbitrary, the Himachal Pradesh High Court quashed the government’s “discriminatory” policy.
The division bench of acting Chief Justice Sanjay Karol and Justice Sandeep Sharma ruled that the government’s action by not giving reservation to married women and not granting them ‘Wards of Freedom Fighter Certificate’, is illegal and arbitrary.
“It is 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 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. These principles are embodied in Articles 14 and 15 of the Constitution,” the court ruled.
The court further 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 to the wards of Freedom Fighters.
The division bench observed that the policy aims 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 and such policies should not become a tool to perpetuate discrimination on the basis of sex.
“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,” the court ruled. The
Himachal Pradesh government on 10 October 2017 in its reply to the court had submitted 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 be a part of the family in its real sense.’
The court objected to the government’s stand 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.