Pushpa Shivaji Kakade Vs the State of Maharashtra through Principal Secretary and Others

¶1

wp-3045-2025.odt

¶2

(1)

¶3

2025:BHC-AUG:21262

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶5

WRIT PETITION NO.3045 OF 2025

¶6

Smt. Pushpa W/o Shivaji Kakade, Age: 46 Years, Occu.: Service, as Anganwadi Karyakarti Now Terminated, R/o At Post Kandari (Partur), Tq. Ghansavangi, Dist. Jalna. ..Petitioner

¶7

Versus

¶8

The State of Maharashtra, Through Principal Secretary, Woman and Child Development Department, Mantralaya, Mumbai – 32.

¶9

The Divisional Commissioner, Aurangabad Divisional Aurangabad.

¶10

The Chief Executive Officer, Zilla Parishad, Jalna.

¶11

The Child Development Project Officer, Integrated Child Development, Service Scheme Project Ghansavangi No.1, Tq. Ghansavangi, Dist. Jalna.

¶12

Sunil S/o. Shivaji Kakade, Age: Major Years, Occu.: Agril, R/o At Post Kandari Partur, Tq. Ghansavangi, Dist. Jalna.

¶13

Gajanan S/o Vishwambhar Kakade, Age: Major Years, Occu.: Agril, R/o At Post Kandari Partur, Tq. Ghansavangi, Dist. Jalna.

¶14

Satish S/o Abasaheb Khandagale, Age: Major Years, Occu.: Agril, R/o At Post Kandari Partur, Tq. Ghansavangi, Dist. Jalna.

¶15

Badri Narayan Nivrutti Kakade, Age: Major Years, Occu.: Agril,

¶16

wp-3045-2025.odt

¶17

(2)

¶18

R/o At Post Kandari Partur, Tq. Ghansavangi, Dist. Jalna.

¶19

Bajrang S/o Devidas Kakade, Age: Major Years, Occu.: Agril, R/o At Post Kandari Partur, Tq. Ghansavangi, Dist. Jalna.

¶20

Santosh S/o Rangnath Kakade, Age: Major Years, Occu.: Agril, R/o At Post Kandari Partur, Tq. Ghansavangi, Dist. Jalna.

¶21

Arun S/o Dnyanoba Kakade, Age: Major Years, Occu.: Agril, R/o At Post Kandari Partur, Tq. Ghansavangi, Dist. Jalna. ..Respondents

¶22

Mr. M. P. Kale, Advocate for the Petitioner. Mr. S. P. Joshi, AGP for Respondents-State. Mr. S. M. Ganachari, Advocate for Respondent Nos.3 and 4. Respondent Nos.2, 5 to 11 are served.

¶23

…

¶24

CORAM : S. G. CHAPALGAONKAR, J.

¶25

Reserved On : 29^th JULY, 2025. Pronounce On : 08^th AUGUST, 2025.

¶26

JUDGMENT:-

¶27

Rule. Rule made returnable forthwith. With consent of the

¶28

parties, matter is taken up for final hearing at admission stage.

¶29

The petitioner impugns order dated 30.03.2021 passed by Additional Divisional Commissioner, Aurangabad in Appeal No.DB/APPEAL/CELL/259/2019, thereby confirming order dated 19.08.2019 passed by Child Development Project Officer, Zilla Parishad, Jalna, by which petitioner was removed from the post of Anganwadi Karyakarti.

¶30

wp-3045-2025.odt

¶31

(3)

¶32

The petitioner is resident of village Kandari, Taula Partur, Dist. Jalna. The post of Anganwadi Karyakarti was fallen vacant at village Kandari. The petitioner being eligible and qualified submitted her application for appointment. Eventually, she received communication dated 24.03.2011 from respondent no.3 to remain present and execute agreement on Bond paper of Rs.100/-. She executed such Bond paper and admitted terms and conditions as prescribed in Government Resolution dated 05.08.2010. She has also filed undertaking that she is having only two children and birth of third child would entail disqualification. Eventually, petitioner was given appointment order dated 25.03.2011. The petitioner joined her services on 25.03.2011 on the post of Anganwadi Karyakarti since then she rendered her services sincerely and honestly.

¶33

On 10.07.2019 respondent nos.5 to 11 filed complaint alleging that petitioner has three children. She filed false declaration that she has only two children. As such, petitioner is not entitled to continue on the post of Anganwadi Karyakarti. Eventually, respondent no.4 conducted enquiry. The petitioner was called upon to remain present in office of respondent no.3 on 07.08.2019. The petitioner denied allegations and submitted that all three children

¶34

are born prior to 2005, therefore, she has not incurred disqualification. However, respondent no.4 issued termination

¶35

wp-3045-2025.odt

¶36

(4)

¶37

order dated 19.08.2019. The petitioner challenged said order before Additional Divisional Commissioner, Aurangabad in Appeal No.259/2019, who dismissed Appeal upholding order of termination.

¶38

Mr. Kale, learned Advocate appearing for petitioner submits that on 28.03.2005 State of Maharashtra through its General Administration Department issued Ordinance promulgating Maharashtra Civil Services (Declaration of Small Family) Rules, 2005 (for short ‘Rules of 2005’), which prescribes disqualification for appointment or continuation in service in case employee has more than two children after promulgation of Rules of 2005. However, such disqualification would not attract, if person is having more than two children on the date of commencement of Rules of 2005. Mr. Kale submits that petitioner had three children. However, last child is born on 20.05.2004 i.e. prior to commencement of Rules of 2005.

¶39

Per contra, Mr. Joshi, learned AGP appearing for respondentState and Mr. Ganachari, learned Advocate appearing for respondent nos.3 and 4 submits that petitioner has executed Bond at the time of entry in service and declared that she has only two children. According to them, petitioner secured employment on the basis of false declaration. Therefore, termination of petitioner is justified.

¶40

wp-3045-2025.odt

¶41

(5)

¶42

Having considered submissions advanced, it can be observed that petitioner was appointed as Anganwadi Karyakarti vide order dated 25.03.2011. She has submitted an undertaking/Bond in compliance with mandate under Rules of 2005, in which she declared that she has two children. However, on 16.08.2019 on complaint given by Mr. Sunil Shivaji Kakade and others contending that petitioner has three children, enquiry was initiated and pursuance to provision contained in Government Resolutions dated 05.08.2010, 15.09.2011 and 13.08.2014, petitioner was held to be disqualified, as she has three children. Eventually, termination order came to be issued and she is relieved from service w.e.f. 21.08.2019. Even her Appeal filed before Additional Divisional Commissioner, Aurangabad came to be dismissed.

¶43

It is not disputed before this Court that petitioner has three children namely:

¶44

01 dq- la/;k f’kokth dkdMs	05@05@1996
02 fp- jkes’oj f’kokth dkdMs	13@06@2000
03 fp- vfHkthr f’kokth dkdMs	20@05@2004

¶45

Apparently, all three children are born during period from 1996 to 2004. It is true that while submitting application for appointment petitioner stated number of children as two and also executed Bond regarding declaration of small family. Pertinently,

¶46

wp-3045-2025.odt

¶47

(6)

¶48

Rules 3 to 5 of Rules of 2005 promulgated on 28.03.2005 states as

¶49

under:

¶50

“ ३- लहान कुटुंबाच्या प्रति�ज्ञापनाची आवश्यक�ा& शासकीय सेवे�ील गट अ] ब] क किंकवा ड मधील पद भर�ीचे विवविनयमन करण्याच्या बाब�ी� करण्या� आलेले कोण�ेही विनयम किंकवा आदेश किंकवा विवलेख किंकवा त्याबाब� करण्या� आलेले इ�र कोण�ेही आदेश किंकवा विवलेख यांमध्ये काहीही अं�भ-.� केलेले असले �री] लहान कुटुंबाचे प्रति�ज्ञापन ही] कोणत्याही शासकीय सेवे�ील गट&अ] गट&ब] गट&क किंकवा गट&ड मधील पदाच्या विनयुक्तीसाठी एक अति�रिरक्त अत्यावश्यक अट असेल-

¶51

परं�ु , हे विनयम अंमला� येण्याच्या विदनांकास दोनापेक्षा अतिधक मुले असणाऱ्या व्यक्तीस , अशा अंमलबजावणीच्या विदनांकास असलेल्या ति�च्या मुलांच्या संख्ये� जोपय9� वाढ हो� नाही �ोपय9� या खंडाखाली , विनयुक्तीसाठी अनह. ठरविवण्या� येणार नाही :

¶52

परं�ु आणखी असे की] हे विनयम अंमला� येण्याच्या विदनांकापास-न एका वर्ष ा .च्या कालावधी� एकाच प्रस-�ीमध्ये जन्मलेले म-ल किंकवा एकापेक्षा अतिधक मुले या खंडा� नम-द केलेल्या अनह.�ेच्या प्रत्योजनासाठी विवचारा� घेण्या� येणार नाही-

¶53

४ . प्रति�ज्ञापन सादर करणे . &शासकीय सेवे�ील गट अ , ब , क किंकवा ड मधील कोणत्याही पदासाठी अज. करण्याची इच्छा असलेली कोण�ीही व्यक्ती , अजा.सोब� या विनयमां�ील नमुना " अ " मधील प्रति�ज्ञापन सादर करील ,

¶54

५ - विनयम लाग- नसणे&जेथे विनवड प्रविBया हे विनयम अमला� येण्याच्या विदनांकाप-वCच सुरू झाली असेल त्याबाब�ी� हे विनयम लाग- करण्या� येणार नाही�- ”

¶55

Declaration Form-A is provided under Rule 4, which states as under:

¶56

मी, श्री/श्रीम�ी/कुमारी ………………………………………………….., श्री. ……………………………………………..यांचा यांची मुलगा/मुलगी पत्नी, वय ………… वर्षाH, राहणार ……………………………………………. यांद्वारे पुढील प्रमाणे असे जाहीर कर�ो/कर�े की,

¶57

(१) मी ………………… या पदासाठी माझा अज. दाखल केलेला आहे.

¶58

(२) आज रोजी मला ………………….. (संख्या) इ�की हया� मुले आहे�. त्यापैकी विदनांक …………………………………….. यानं�र जन्माला आलेल्या मुलांची संख्या …………………….. आहे. (असल्यास, जन्मविदनांक नम-द करावा.)

¶59

(३) हया� असलेल्या मुलांची संख्या दोनपेक्षा अतिधक असेल �र विदनांक …………. नं�र जन्माला आलेल्या, मुलामुळे या पदासाठी मी अनह. ठरविवण्यास पात्र होईल याची मला जाणीव आहे.

विठकाण :

विदनांक:

(सही)

wp-3045-2025.odt

(7)

Careful reading of aforesaid provisions, particularly proviso under Rule 3 shows that persons having more than two children on the date of commencement of these Rules shall not be disqualified for appointment under these clause, so long as the number of children he had on the date of such commencement does not increase. In present case, it is nobody’s case that petitioner begotten any child after 28.03.2005.

¶66

The procedure for appointment of Anganwadi Karyakarti and service conditions are prescribed under Government Resolution dated 05.08.2010 issued by Women and Child Development Department, Maharashtra State. Clause (D) prescribes that condition regarding small family is applicable for appointment on the post of Anganwadi Karyakarti. The provisions made thereunder are pari materia to Rules of 2005. Even otherwise, disqualification would attract only when there is contravention of provision under Rules of 2005.

¶67

In present case, since petitioner had three children born prior to promulgation of Rules of 2005, she cannot be said to have incurred disqualification in terms of Rules of 2005 or Government Resolution dated 05.08.2010.

¶68

It is true that, petitioner has submitted Bond at the time of her appointment in terms of Government Resolutions and given

¶69

wp-3045-2025.odt

¶70

(8)

¶71

declaration as to small family as per format provided to her. Prima facie , such declaration appears to be incorrect. At this stage, reference can be given to the observations made by Supreme Court of India in case of Pawan Kumar Vs. Union of India and

¶72

Another¹ , which reads thus.

¶73

“11. This cannot be disputed that the candidate who intends to participate in the selection process is always required to furnish correct information relating to his character and antecedents in the verification/attestation form before and after induction into service. It is also equally true that the person who has suppressed the material information or has made false declaration indeed has no unfettered right of seeking appointment or continuity in service, but at least has a right not to be dealt with arbitrarily and power has to be judiciously exercised by the competent authority in a reasonable manner with objectivity having due regard to the facts of the case on hand. It goes without saying that the yardstick/standard which has to be applied with regard to adjudging suitability of the incumbent always depends upon the nature of post, nature of duties, effect of suppression over suitability to be considered by the authority on due diligence of various aspects but no hard and fast rule of thumb can be laid down in this regard.”

¶74

In light of aforesaid exposition of law, present case needs to be examined. In present case, fundamentally petitioner cannot be considered as disqualified in view of proviso to Rule 3 of Rules of 2005, which exempts person from disqualification having children born before date of commencement of Rules of 2005. Since petitioner had three children born during period from 1996 to 2004, she cannot be considered as disqualified. The termination order

¶75

passed against her on aforesaid ground is, therefore, unsustainable.

¶76