M. M. Sathaye, J
1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the parties.
2. By this petition, the Petitioner-State is challenging the Judgment and Order dated 13/07/2023 in the Original Application No. 1326 of 2022 passed by
the Member, Maharashtra Administrative Tribunal, Mumbai, (for short ‘the Tribunal’). By the said impugned order, the Tribunal has allowed the
said Original Application filed by Respondent, thereby quashing the impugned communication dated 25/11/2022 therein and directing the Petitioner-
State to consider the claim of Respondent for compassionate appointment and taking his name in the waiting list on suitable post subject to fulfillment
of terms and conditions.
3. Few facts necessary for disposal of this Petition are as under. The Respondent is the son of a government servant - Late Mr. Sunil B. Gite, who
was the police constable and who died on 23/04/2010. Mr. Sunil had two wives. First wife is Smt. Surekha from whom he has a daughter by name
Komal. During subsistence of marriage with Surekha, Mr. Sunil married with Smt. Shivani from whom he has two children viz. the Respondent
(Tanmay) and Samiksha. Respondent is born on 09/01/2003. Admittedly, the Respondent is a child born from an illegitimate marriage. At the time of
the death of Mr. Sunil, the Respondent was 7 years old minor. On attending majority on 09/01/2021, the Respondent made an application for
compassionate appointment. This application is dated 30/09/2022. Alongwith the application, an affidavit of the step-mother & step sister of the
Respondent i.e. Smt. Surekha and Mr. has been filed, giving consent to the Respondent being considered for compassionate appointment.
4. The Petitioner No. 2-Commissioner of Police, Mumbai rejected the claim of the Respondent by a communication dated 25/11/2022 on the ground
that the Respondent being 3rd child, born to the deceased government servant, after the cut-off date of 31/12/2001, his claim for compassionate
appointment cannot be considered in view of prohibition under the Government Resolution dated 28/03/2001 (for short “the said GR of 2001â€).
This refusal of request was challenged by the Respondent in the Tribunal by filing the aforesaid Original Application, in which the impugned order is
passed. In these circumstances, the Petitioner-State has filed the present Petition.
5. Mrs. Salunkhe, learned Assistant Government Pleader (AGP), submitted that the impugned order is based on the law laid down in the case of Ms
Kashibai Wagh Vs. Zilla Parishad, Nashik & Ors. Bombay High Court in Writ Petition No. 7742 of 2024 dated 03/07/2019, in which the said GR of
2001 is quashed and set aside, declaring it unconstitutional. It is submitted that the reference to the judgment of Union of India & Anr. Vs. V. R.
Tripathi (2019) 14 SCC 646 is not really applicable in as much as, the said judgment was about entitlement of a child born from 2nd marriage in case
of compassionate appointment; however in the present case, the request is not refused on that ground but on the ground that the deceased government
servant had three children. She has relied upon the judgment of the Full Bench of this Court, in Sunita Dinesh Gaikwad & Anr. Vs. State of
Maharashtra & Anr Bombay High Court in Writ Petition No. 9284 of 2022 dated 27/07/2023, in which
the Kashibai’s judgment (supra) has been restricted to facts of that case
only, and the declaration given thereunder about Clause (e) of the said GR of 2001, has been deemed not to have been so declared for other matters.
The learned AGP has invited our attention to a subsequent Government Resolution dated 21/09/2017 (for short “the said GR of 2017â€)
consolidating the Government Resolutions with regard to the subject of compassionate appointment.
6. On the other hand Ms. Kaladharan, learned Counsel for the Respondent submitted that the Judgment of Full Bench in the case of Sunita Dinesh
Gaikwad (Supra) has come on 27/07/2023 i.e. after the date of the impugned order (13/07/2023). It is submitted that therefore the change in legal
position was not available for the consideration of the Tribunal at the relevant time. She has submitted that the Respondent has been considered for
the claim of compassionate appointment and therefore, a lenient view be taken in the matter.
7. We have considered the rival submissions and perused the record. Perusal of the judgment of the Full Bench in Sunita Dinesh Gaikwad (Supra)
shows that a reference was made in view of the divergent view taken by two division benches of this Court, one in Kashibai’s case (supra) and
other in Bhagyashree Pradip Chopade vs MIDC and Others Bombay High Court in in Writ Petition No. 6819 of 2021 dated 08/03/2022. Since, the Full
Bench has ruled that the declaration in the judgement of Kashibai about Clause (e) of the said GR of 2001 is held not to have binding effect in
perpetuity and restricted to facts of that case, the decision taken by the Tribunal in the impugned order (based on Kashibai's case), cannot be
sustained. The Clause (e) of the said GR of 2001 reads as under:
“() 31 2001 Â
.â€
[Emphasis supplied]
This same position is further reiterated in Clause 3(6) of the Appendix-A of the said GR of 2017, which consolidates the Government Resolutions
about appointment on compassionate ground. It reiterates the said policy about 3rd child and its effect on entitlement of family of the concerned
government servant to compassionate appointment. The policy is clearly based on the need for population control.
8. It is true that the Full Bench judgment was rendered after the impugned order is passed and therefore the learned Tribunal did not have the
advantage of considering the same. However, considering that the death of the government servant in the present case has taken place long ago in
April, 2010, no useful purpose will be served by relegating the parties to the Tribunal again. It will amount to unnecessary lease of life to the litigation.
Hence, we deem it appropriate to consider the case on merits.
9. In view of the fact that the Clause (e) of the said GR of 2001 is clearly applicable to the facts of the present case and the Respondent being the 3rd
child of the government servant born after 31/12/2001, the family members of said government servant are not entitled or eligible for appointment on
compassionate ground. In our view, the aspect of Respondent being a son born from second and illegitimate marriage, has no effect in the present
case, in as much as whether legitimate or illegitimate, the fact remains that the concerned government servant Mr. Sunil had three children and
therefore the said angle is irrelevant, in the facts of the present case, especially after the Full Bench view.
10. Considering that the said GR of 2001 and it’s Clause (e) squarely applies to the case of the Respondent, he cannot be held entitled to the
compassionate appointment. Therefore the impugned communication dated 25/11/2022 rejecting the Respondent’s claim is justified and as such,
Original Application No. 1326 of 2022 has no merit.
11. The petition therefore succeeds and it is allowed in following terms:
(a) The impugned Judgment and Order dated 13/07/2023 passed by the Member, Maharashtra Administrative Tribunal, Mumbai, in Original
Application No. 1326 of 2022 is quashed and set aside and the Original Application No. 1326 of 2022 is dismissed.
(b) Rule is made absolute in above terms with no order as to the costs.
All concerned to act on duly authenticated or digitally signed copy of this order.