Court’s Decision
The Bombay High Court ruled against the respondent’s claim for a compassionate appointment, setting aside the Maharashtra Administrative Tribunal’s order. The court upheld the government’s decision to reject the respondent’s application on the ground that he was the third child of a government servant born after the cut-off date of December 31, 2001. The High Court emphasized that the policy behind this restriction was aimed at population control and that the respondent’s ineligibility was not due to his status as a child of a second marriage but because he was the third child.
The court further clarified that the Tribunal’s reliance on Kashibai Wagh v. Zilla Parishad, Nashik was incorrect, as a subsequent Full Bench ruling in Sunita Dinesh Gaikwad v. State of Maharashtra had limited the applicability of Kashibai’s case to its specific facts. Thus, the Tribunal’s decision was legally unsustainable.
Facts of the Case
- Family Background
- The respondent is the son of a deceased police constable who passed away on April 23, 2010.
- The deceased constable had two wives:
- First wife: Surekha, with whom he had a daughter.
- Second wife: Shivani, from whom he had two children, including the respondent.
- The respondent was born on January 9, 2003, making him the third child of the deceased government servant.
- Application for Compassionate Appointment
- The respondent applied for a compassionate appointment on September 30, 2022, after attaining majority on January 9, 2021.
- His stepmother and stepsister submitted affidavits consenting to his appointment.
- Rejection of Application
- The Commissioner of Police, Mumbai, rejected the respondent’s application on November 25, 2022, citing Clause (e) of the Government Resolution (GR) dated March 28, 2001.
- The GR prohibits compassionate appointments for families of government employees who have a third child born after December 31, 2001.
- The rejection led the respondent to challenge the decision before the Maharashtra Administrative Tribunal.
- Tribunal’s Ruling (July 13, 2023)
- The Tribunal quashed the rejection order and directed the government to consider the respondent’s claim for compassionate appointment.
- The Tribunal relied on the Bombay High Court ruling in Kashibai Wagh v. Zilla Parishad, Nashik, which had declared Clause (e) of the 2001 GR unconstitutional.
Issues Before the Court
- Whether the respondent’s claim for compassionate appointment was valid, despite being the third child of a government servant born after the cut-off date specified in the 2001 GR.
- Whether the Tribunal’s reliance on Kashibai Wagh v. Zilla Parishad, Nashik was legally tenable.
- Whether the Full Bench ruling in Sunita Dinesh Gaikwad v. State of Maharashtra affected the Tribunal’s order.
Petitioner’s (State’s) Arguments
- The Assistant Government Pleader (AGP) argued that the Tribunal’s order was incorrect because it relied on Kashibai Wagh v. Zilla Parishad, Nashik, which had declared Clause (e) of the 2001 GR unconstitutional.
- However, in a subsequent Full Bench ruling in Sunita Dinesh Gaikwad v. State of Maharashtra, the Bombay High Court limited the applicability of Kashibai Wagh to the facts of that specific case.
- The respondent’s application was rejected solely because he was the third child, which is prohibited under Clause (e) of the 2001 GR, not because he was born out of a second marriage.
- The petitioner cited Clause 3(6) of the GR dated September 21, 2017, which reaffirmed the restriction on compassionate appointments for a third child.
Respondent’s Arguments
- The respondent’s counsel argued that at the time of the Tribunal’s decision (July 13, 2023), the Full Bench ruling in Sunita Dinesh Gaikwad v. State of Maharashtra (July 27, 2023) had not yet been delivered.
- Since the Tribunal did not have the advantage of considering the later Full Bench ruling, the High Court should take a lenient view.
- The respondent had already been considered for the waiting list, and he should not be denied the compassionate appointment.
Analysis of the Law
1. Clause (e) of the 2001 GR
- Prohibits compassionate appointments if the deceased government servant had a third child born after December 31, 2001.
- The policy’s objective is population control.
2. Government Resolution of 2017
- Clause 3(6) of the 2017 GR reiterates the 2001 GR’s restriction on third-child appointments.
3. Full Bench Decision in Sunita Dinesh Gaikwad v. State of Maharashtra
- Overruled the broad applicability of Kashibai Wagh.
- Declared that Clause (e) of the 2001 GR remains valid except in Kashibai Wagh’s specific case.
Precedents Considered
1. Kashibai Wagh v. Zilla Parishad, Nashik (2019)
- The Bombay High Court had quashed Clause (e) of the 2001 GR as unconstitutional.
- This decision was relied upon by the Tribunal in favor of the respondent.
2. Union of India v. V. R. Tripathi (2019) 14 SCC 646
- Addressed compassionate appointment for children from second marriages.
- The petitioner argued this case was irrelevant, as the rejection was based on the third-child restriction, not second marriage.
3. Sunita Dinesh Gaikwad v. State of Maharashtra (2023)
- Full Bench ruling clarifying that Kashibai Wagh does not serve as a general precedent.
- Held that Clause (e) of the 2001 GR remains valid.
Court’s Reasoning
- The High Court held that Clause (e) of the 2001 GR was applicable to the respondent since he was the third child of a government servant, born after December 31, 2001.
- The Tribunal erred in relying on Kashibai Wagh, as that judgment was not meant to have general applicability.
- The policy does not distinguish between legitimate or illegitimate children, nor does it consider whether the children are from a first or second marriage. The only criterion is the number of children.
- The court emphasized:
“The policy is clearly based on the need for population control.”
Conclusion
- The Tribunal’s ruling was quashed.
- The rejection of the respondent’s claim was upheld.
- The High Court dismissed the respondent’s application for compassionate appointment.
- The court noted that referring the matter back to the Tribunal would only prolong unnecessary litigation.
Implications of the Judgment
- Reaffirms the validity of Clause (e) of the 2001 GR and its restriction on compassionate appointments.
- Limits the scope of Kashibai Wagh, ensuring that it cannot be used as a precedent for similar claims.
- Clarifies that children from second marriages are eligible for compassionate appointments, unless they violate the third-child rule.
- Strengthens the government’s policy on population control by preventing compassionate appointments for a third child born after December 31, 2001.
This judgment sets a strong precedent for similar cases, ensuring that compassionate appointments follow the government’s population control policies strictly.
