Writ petition challenging the refusal of compassionate appointment on the ground that the family had more than two children. The Court held that the disqualification under the Small Family Rules and Government Resolution applied as the third child was born after the cutoff date.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2024:BHC-NAG:11476-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR
WRIT PETITION NO.4906 OF 2024
Chaya Rajendra Shende ... Petitioner - Versus - The State of Maharashtra and others ... Respondents
Mr. S.M. Vaishnav, Advocate for the petitioner. Mr. N.R. Patil, AGP for respondent nos.1 and 2.
CORAM : BHARATI DANGRE & ABHAY J. MANTRI, JJ. DATED : OCTOBER 09, 2024.
P.C. :
The petitioner, being desirous of appointed on compassionate ground in the Zilla Parishad, is aggrieved by the Government Resolution, dated 28.03.2001, as it imposes a disqualification on account of having three children and has filed the present writ petition seeking the following reliefs :
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appointment to the family in which two children are born out of single delivery by erroneously making the bar of third child applicable, with kind consideration and in the interest of justice and fair play.
The learned counsel for the petitioner, while narrating the facts involved, would submit that the husband of the petitioner was an employee of the Zilla Parishad and he demised on 09.06.2014, while in service.
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During the subsistence of the marriage between the petitioner and her deceased husband, the couple was blessed with twins on 06.05.2005, they being born out of single delivery. On 10.06.2007, the couple was blessed with one more child and it is this factor, which is holding back the appointment of the petitioner on compassionate ground, as the respondent-authorities are pressing into service the condition in the Government Resolution dated 28.03.2001, of having a third child, as an impediment in appointing her on compassionate ground.
According to Mr. Vaishnav, on demise of her husband, the petitioner preferred an application for appointment on compassionate ground and her name was incorporated in the waiting list published on 01.02.2023. However, when the occasion arose to grant appointment, by communications dated 29.03.2023 and 03.05.2023 issued by the Zilla Parishad, the appointment was refused by stating that the petitioner have a third child born after the issuance of the Government Resolution dated 28.03.2001 and, therefore, she is not entitled for being appointed on compassionate ground in the wake of the embargo created by the said Government Resolution.
This has constrained the petitioner, who raise challenge to the condition imposed in the Government Resolution, which deny the benefit of appointment on compassionate appointment to the family, in which two children were born out of single delivery by making the bar of the third child applicable.
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ground, and while modifying the conditions stipulated in the Government Resolution, dated 26.10.1994, and the subsequent Government Resolutions, dated 23.08.1996 and 12.03.1997, pertaining to the appointment on compassionate ground and revising the conditions applicable, one of the condition incorporated is, non-suiting a dependent of an employee, who seek appointment on compassionate ground, if the third child is born, after 31.12.2001.
In addition to the Government Resolution, our attention is also invited to the Maharashtra Civil Services (Declaration of Small Family) Rules, 2005 published by the Notification, dated 28.03.2005, which has defined ‘Small Family’ to mean wife and husband including two children.
We must also reproduce the explanation appended to the definition of small family, which reads thus :
Explanation – For the purposes of this clause -
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Rule 5 of the Rules of 2005, prescribe that the Rules of 2005 shall not be made applicable where the selection process was started before the date of commencement of these rules.
For no reason, can we permit such an interpretation, which is sought to be canvassed before us.
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“In view of the above, we are unable to accept the contention of the petitioner that the declaration in Kashabai (supra) would have a binding effect in perpetuity. The said conclusion would, at best, be restricted only to the facts of the said case. For the reasons recorded herein above, in the light of the law crystallized by the Honourable Supreme Court, the declaration in Kashabai (supra) that clause E of the Government Resolution dated 28-3-2001 is unconstitutional, shall not be deemed to have been so declared for other matters and would be restricted to the facts of the said case. We answer the issue addressed to us, accordingly.”
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assuming that at the time of coming into force of the Rules 2005, the petitioner could have gained the benefit, as she was on her family way, when these rules came into effect, but after coming into effect of the Rules-2005, she has delivered a third child on 10.06.2007 and the benefit of the twins born during the first delivery do not extend to her by virtue of the second proviso appended to Rule-3 of the Rules-2005.
In addition, as far as the policy governing the appointment on compassionate ground, it clearly created an embargo for seeking appointment if the third child was born after 31.12.2001 and in the case of the petitioner, all the three children are born after 31.12.2001 and when her eligibility is to be determined for being appointed on compassionate ground in place of her husband, since three children are born to the couple after 31.12.2001, she has incurred a disqualification for being considered for the appointment on compassionate ground.
“4. Placed in plain words the provision disqualifies a person having more than two living children from holding the specified offices in Panchayats. The enforcement of disqualification is postponed for a period of one year from the date of commencement of the Act. A person having more than two children up to the expiry of one year of the commencement of the Act is not disqualified. This postponement for one year takes care of any conception on or around the commencement of the Act, the normal period of gestation being nine months. If a woman has conceived at the commencement of the Act then anyone of such couples would
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not be disqualified. Though not disqualified on the date of election if any person holding any of the said offices, incurs a disqualification by giving birth to a child one year after the commencement of the Act he becomes subject to disqualification and is disabled from continuing to hold the office. The disability is incurred by the birth of a child which results in increasing the number of living children, including the additional child for one year after the commencement of the Act, to a figure more than two.”
Finding no merit in the petition, the same is dismissed.
(ABHAY J. MANTRI, J.) (BHARATI DANGRE, J.)
Gulande
1 issue framed by the court
Whether the Government Resolution barring compassionate appointment if a third child is born after 31.12.2001 applies to the petitioner who had twins and a subsequent single child?
Colour shows how this judgement treated each authority
Sunita w/o Dinesh Gaikwad and another v. State of Maharashtra and anotherReferred¶49
Sunita w/o Dinesh Gaikwad and another .vs. State of Maharashtra and another, 2023 (5) Mh.L.J. 40 · Who else cites this
Kashabai Sheshrao Wagh v. Zilla Parishad, Nashik and othersReferred¶49
Kashabai Sheshrao Wagh .vs. Zilla Parishad, Nashik and others, 2019 Mh.L.J. Online 220 · Who else cites this
Javed and others v. State of HaryanaRelied on¶56
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3 provisions across 1 enactments
Chaya Rajendra Shende
The State of Maharashtra
others
BHARATI DANGRE
ABHAY J. MANTRI
As recorded by the court registry
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