Bombay High Court
Amol Hiralal Telrandhe vs The State Of Maharashtra, Thr. ... on 1 July, 2024
Author: M.S. Jawalkar
Bench: Vinay Joshi, M.S. Jawalkar
2024:BHC-NAG:6805-DB
WP 2349-2023.odt 1/25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2349 OF 2023
Shri. Amol Hiralal Telrandhe,
Age @ 31 yrs, Occ - Nil,
R/o Sant Tukdoji Ward, Near Mahatmafule
School, Hinganghat, Tq. Hinganghat,
Dist. Wardha
....PETITIONER
...VERSUS...
1. The State of Maharashtra,
Through its Secretary for Rural Development
Department, Mantralaya, Mumbai
2. The State of Maharashtra,
Through its Secretary for General
Administrative Department, Mantralaya,
Mumbai
3. The Zilla Parishad, Chandrapur,
Through its Chief Executive Officer,
Chandrapur, Dist. Chandrapur
4. The Deputy Chief Executive Officer,
Zilla Parishad, Chandrapur, Dist. Chandrapur
...RESPONDENTS
----------------------------------------------------------------------------------
Shri S.M. Vaishnav, Advocate for petitioner
Shri N.R. Rode, AGP for respondent Nos. 1 & 2/State
Ms H.N. Jaipurkar Advocate h/f G.M. Reve, Advocate for respondent
Nos.3 & 4
----------------------------------------------------------------------------------
WP 2349-2023.odt 2/25
CORAM : VINAY JOSHI AND
SMT. M.S. JAWALKAR, JJ..
DATE OF RESERVING THE JUDGMENT : 21/06/2024
DATE OF PRONOUNCING THE JUDGMENT : 01/07/2024
JUDGMENT (PER : SMT. M.S. JAWALKAR, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent and request of learned Counsel for both the parties at the
admission stage.
3. The petition questions the Government Resolution
dated 28/03/2001, which prohibits the family member of
deceased employee for the purpose of compassionate
appointment as third child has been born after 31/12/2001. It is
submitted by petitioner that the father of the petitioner was
appointed on the post of Assistant Teacher in the year 1988. He
expired during the service on 14/03/2009. The petitioner moved
an application for appointment on compassionate ground on
07/12/2009. Thereafter, two subsequent applications were
preferred. Respondent No.3 rejected the application of the
petitioner as he is not entitled for compassionate appointment as
the application is not made within a period of one year. The said
order of respondent No.3 dated 19/02/2019 was challenged by
the petitioner in Writ Petition No. 4113/2019, in which, by
judgment dated 26/08/2022, this Court made it very clear that
petitioner is entitled for incorporation in the list of eligible
candidates.
4. Thereafter, the name of the petitioner was incorporated
in the waiting list at Sr. No. 2. Thus, he was entitled for
appointment immediately. There is report dated 08/03/2023 of
Block Development Officer reporting that financial condition is
sordid and brother of the petitioner is suffering from physical
disability, whereas, the sister is suffering from sickle Cell anemia.
The respondent No.4 i.e. the Deputy Chief Executive Officer, Zilla
Parishad, Chandrapur by it's communication dated 21/03/2023,
turned down the request of the petitioner for appointment on
compassionate ground on the basis that after enquiry, it was
revealed that the deceased employee is having third child born
after 31/12/2001 and in view of Government Resolution dated
21/09/2017, Clause- 3 Sub Clause - 6, the applicant-petitioner is
not entitled to be appointed on compassionate ground as deceased
employee was having third child after the cut-off date i.e.
31/12/2001. The said communication is under challenge in the
present writ petition.
5. The petitioner draw our attention to the Maharashtra
Civil Services (Declaration of Small Family) Rules of 2005. It is
submitted that these Rules were implemented with effect from
28/03/2005. By way of introduction of these Rules, only the
employees working in the service of Government were made
aware about the requirement of having small family. Before these
Rules were came into force, there was no such requirement that
the declaration regarding small family will have to be submitted
by every Government servant. The Government made it clear that
these Rules shall not apply to those employees who were already
in service prior to 28/04/2005.
6. The scheme of compassionate appointment was
introduced by the State of Maharashtra vide Government
Resolution dated 26/10/1994. As such, the employees who were
already in service on 26/10/1994 were made known about the
said scheme that if at all there is demise of the employee during
the course of service, the eligible legal heir will be appointed in
their place. However, on 28/03/2001 by issuing Government
Resolution for the first time barrier of having third child was
introduced.
7. It is the contention of the petitioner that in the basic
scheme which was introduced on 26/10/1994, the barrier for not
being entitled for compassionate appointment due to having third
child was not there. Therefore, Government Resolution dated
28/03/2001 cannot be made applicable retrospectively and bar
introduced cannot be made applicable for those employees who
were already in service as on 26/10/1994, when the scheme was
introduced. Apart from this, the Government Resolution dated
28/03/2001, provides protection and exemption to a person who
delivers child between 9 months before the cut-off date, whereby,
disqualifying even those candidates in whose cases the child has
already been conceived even prior to the publication of
Government Resolution dated 28/03/2001.
8. The petitioner drawn our attention to similar such
disqualification clauses incorporated in several other statute, such
as Section 14(1) (J-1) of the Maharashtra Village Panchayat Act,
1959, wherein, the person who has more than two children is
disqualified being member of Grampanchayat. However, proviso
to this Section clearly provides that a child born in a single
delivery within a period of one year from the date of
commencement of amending Act shall not be taken into
consideration for the purposes of disqualification. It is contended
that if the policy make an intends to deprive any of its citizens
from any benefits of the Government policy, then a reasonable
notice of such decision has to be given. Due to the fixation of
erroneous date of implementation i.e. 23/12/2001, the family
members/children of deceased employee where third child has
either conceived just before the Government Resolution or
immediately after the Government Resolution is published are
deprived from the benefit without there being any fault on their
part. As such, petitioner is seeking declaration that the
Government Resolution dated 28/03/2001 will be applicable after
the date of lapse of one year and the family members of the
employee, including any children born till 28/03/2002, shall not
be deprived from compassionate appointment.
9. Learned Counsel for petitioner relied on following
citations :
1) Javed and others Vs. State of Haryana 2003 (8)
SCC 369
2) Zile Singh Vs. State of Haryana and others
(2004) 8 SCC 1
3) Dnyaneshwar Patiram @ Ratiraj Shirbhiye Vs.
Divisional Commissioner, Nagpur and others 2012
(3) Mh.L.J. 253
4) Kumari Shrilekha Vidyarthi and others Vs.
State of U.P. and others (1991) 1 SCC 212
10. As against this, the learned Counsel Ms Jaipurkar
appearing on behalf of Zilla Parishad submitted that the Zilla
Parishad has implemented the Government Resolution as it is,
therefore, there is no reason to allow the petition. However, by
written notes, she has duly supported the contention of petitioner.
11. Heard both the parties at length, gave a thoughtful
consideration to the contentions. It is matter of record that
petitioner earlier filed Writ Petition No.4113/2019 challenging the
rejection of application for appointment on compassionate ground
on the ground of delay. The said Writ Petition was allowed and
respondents were directed to incorporate the name of the
petitioner in the list of eligible candidates. Thereafter, the name of
the petitioner was incorporated in the waiting list at serial No.2.
There is no dispute over financial condition of the family. There is
report to that effect by Block Development Officer on record.
Moreover, brother of petitioner is suffering from 51% physical
disability and sister is suffering from sickle cell. The report also
supports this fact. However, it appears that the Chief Executive
Officer, Zilla Parishad, Chandrapur by its communication dated
21/03/2023 refused to appoint the petitioner on compassionate
ground as it was revealed during the enquiry that deceased
employee is having third child after 31/12/2001 and on the basis
of Government Resolution dated 21/09/2017, it was informed that
petitioner cannot be appointed on compassionate grounds.
12. It is admitted position that Hiralal was Assistant
Teacher in Panchayat Samiti, Zilla Parishad, Chandrapur. He
expired while in service on 14/03/2019. His first wife namely
Leelabai expired on 19/05/2000. Father of petitioner performed
second marriage with one Roopa. Komal was born from the first
wife and petitioner and Khushal born from his second wife,
Khushal born on 10/03/2002. Though as per directions, name of
the petitioner was included in the list for appointment on
compassionate ground, the appointment was rejected on the
ground that deceased Hiralal gave birth to a third child after the
cut-off date i.e. 31/12/2001, as per Government Resolution dated
21/09/2017.
13. It needs to be noted here that, the State of Maharashtra
framed the declaration of Small Family Rules, 2005 dated
28/03/2005, by which, declaration of the small family as one of
the essential qualification for recruitment to group A, B, C and D
post in Government Department. However, proviso to Rule 3 of
the said Notification specifically provided as under-
"3. Necessity of declaration of Small Family.-
Notwithstanding any thing contained in any rules or
orders or instruments made in that behalf, regulating
recruitment to Group A, B, C or D post in Government
Service or any other order or instruments made in that
behalf, the declaration of Small Family shall be an
additional essential requirement for an appointment to
Group A, Group B, Group C or Group D post in any
Government services:
Provided that, a person 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:
Provided further that a child or more than one child
born in a single delivery within the period of one year from
the date of such a commencement shall not be taken into
consideration for the purpose of disqualification mentioned
in this clause."
14. It appears that some of the employees who were
appointed prior to 28/02/2005, having third child exempted as
per provision of declaration of the Small Family Rules, 2005, as
those are not applicable to the person having more than two
children on the date of commencement of the Rules. It is also clear
that in the said Rules, the child born within the period of one year
from the date of such commencement is also held not to be
disqualified for having third child.
15. It can be seen that State of Maharashtra also passed
many enactments wherein the person having third child is
declared disqualified for appointment or to be elected as a
member of Village Panchayat, the purpose of such disqualification
is one of the measure to control population. In view of the
population explosion and limited resources, the Government has
decided to impose such restrictions. However, while imposing or
disqualifying such persons, due care is taken to protect the person
who gave birth to a third child within a period of one year from
the issuance of enactment or Notification. The reason is obvious
that one year takes care of any conception on or around the
commencement of the act, considering the normal period of
gestation being 9 months.
16. The provision in Maharashtra Village Panchayat Act
and Section 14 (1) (j-1), in Maharashtra Village Panchayat and
Panchayat Samiti Act, by way of Section 16 (1) (N) read with
Section 16 (2) (E) of the said Act provides for the period of one
year. Similarly, the Maharashtra Municipal Council Nagar
Panchayat and Industrial Township Act in Section 16(1)(a)
provides the period of one year. Thus it can be seen that one year
period is prescribed in almost all provisions.
17. In view of the Government Resolution dated
28/03/2001, the earlier Government Resolution dated 23/08/1996
provision 2 (a) was deleted and clauses C, D, E, F were inserted.
We are concerned with clause (E). As per this clause, it is declared
that if any employee having third child after 31/12/2001, family
member of that employee will not be entitled to be appointed on
compassionate ground.
18. On perusal of Government Resolution dated
28/03/2001, it appears that protection is granted only for 9
months to the person to whom the third child is borned i.e. up to
31/12/2001. Now, question before us is that whether the period of
9 months is justified or sufficient period to serve the purpose of
the legislation. The date of impugned Government Resolution is
of 28/03/2001 specifying the cut-off date 31/12/2001 for the birth
of third child i.e. a person would not be entitled to be appointed
on compassionate ground, if the deceased employee have third
child born beyond this cut-off date.
19. Learned Counsel for Zilla Parishad in her reply
submitted that we have acted as per Government Resolution.
However, learned Counsel for Zilla Parishad submitted notes on
gestation period wherein she relied on 'due date calculator of
delivery' available on Australian Government website and other
website. A simple method to calculate the due date is to add 7
days to the date of the first day of woman's last period (menstrual
cycle) then add 9 months.
20. If we presume a first day of woman's menstrual cycle
of last period before conception (pregnancy) as 28/03/ 2001 (i.e.
the date of commencement of the Government Resolution) and
calculate a due date as per above calculator in 2 steps then the
result would be as follow (i.e. due date) (Based on 30 days average
menstrual cycle of a woman) 28/03/2001 + 7 = 04/04/2001
04/04/2001 + 9 months = 04/01/2002.
Therefore, even if minimum period of gestation as 9 months
is taken into consideration, the due date is beyond the cut-off date.
The report also says that there are delivery, varies from
woman to woman depending upon duration of varies menstrual
cycle (as woman as varying normal average menstrual cycle from
21 days to 40 days.) Accordingly, due date also calculated. Thus,
considering the normal pregnancy calculator also, the cut-off date
31/12/2001 is unjustified and without any foundation or rational.
21. In view of the Section 112 of the Evidence Act, if child
is born within 280 days after the dissolution of marriage, it is
conclusive proof that the child is legitimate child of that man. The
further period, over and above this period of 9 months is to
provide notice of introducing such disqualification. Moreover, by
the time, woman get knowledge that she has been conceived fetus
would might be of 4 to 6 weeks. Even if, she get knowledge of bar
in view of the Government Resolution dated 28/03/2001, i.e. date
of issuance of Government Resolution, she could not terminate the
pregnancy unless there is medical contingency. In normal
pregnancy, the termination of the pregnancy is not allowed by
law. As such, the protection of one year is all these enactment is
having some rational and medical loss.
22. The reason for such prescription of one year is
explained in Javed and others (supra), in paragraph No.4 as
under:
"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 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."
23. In Zile Singh (supra), wherein the provision of Haryana
Municipal Council Act, 1973, was in question whereby a person
having more than two children on or after the expiry of one year
of the commencement of the said Act is held deemed to be
disqualified. Though question before the Hon'ble Apex Court
challenging the retrospective effect of Harayana Municipal
Council Amendment Act in Section 3 and 15, the observations
made in the judgment in paragraph No.26 is relied on. The
Hon'ble Apex Court held as under:
"26. ..... However, the legislature thought that it would be
more reasonable if that is qualification was not applied by
reference to a child born within a period of one year from
the date of commencement of the Act. The period of one
year was appointed keeping in view the period of gestation
which is two hundred and eighty days as incorporated in
Section 112 of the Evidence Act of 1872 and added to it a
little more margin of 85 days. The provision spells out this
meaning but for the error in drafting. Even if there would
have been no amendment (as introduced by the second
amendment Act) the proviso as it originally stood, if
subjected to judicial scrutiny, would have been so
interpreted and the word "after" would have been read as
"upto" or asigned that meaning so as to carry out the
legislative intent and not to make capital out of the
draftsman's folly. Or, the proviso- if not read down- would
have been declared void and struck down as being arbitrary
and discriminatory inasmuch as the persons having more
than two living children on the date of enactment of the
Act and within one year thereafter and the persons having
more than two living children after the date of one year
could not have formed two classes capable of being
distinguished on a well-defined criterion so as to fulfill the
purpose sought to be achieved by the legislature."
24. Learned Counsel for petitioner relied on Dnyaneshwar
(supra), in the said matter before this Court, rejection of the
objection that petitioner was member and Sarpanch of Gram
Panchayat has incurred disqualification under Section 14 (1)(j-1) of
the Bombay Village Panchayat Act was in question. This Court
explained the object of proviso to Section 14(1) (j-1) as under-
"The object of introducing second proviso to Section 14 (1)
(j-1) of the said Act is to postpone the enforcement
disqualification to take care of cases where conception has
already taken place on or around the date of
commencement of the said Act, the normal period of
gestation being nine months. The object is also to provide
notice of introducing such disqualification. The operation
of second proviso is thus restricted to a period of one year
from the date of commencement of the said Act."
25. Learned Counsel for petitioner relied on Ku. Shrilekha
Vidyarthi (supra), in support of his contention that the every
action of the State or an instrumentality of the State, must be
informed by reason, even if, there is a presumption about validity
of State action, actions uninformed by reasons may be questioned
as arbitrary in proceedings under Article 226 or Article 32 of the
Constitution. Even if there is a presumption validity of State
action, it is held in Shrilekha (supra) that in view of the wide-
ranging and in essence, all pervading spread of State activity in
discharge of its welfare functions, the question assumes considerable
importance and cannot be shelved. The basic requirement of Article 14 is
fairness in action by the State and we find it difficult to accept that the
State can be permitted to act otherwise in any field of its activity,
irrespective of the nature of its functions when it has the uppermost duty
to be governed by the rule of law. Non-arbitrariness, in substance, is
only fair play in action."
However, as petitioner is not challenging the validity of
the impugned Notification and only seeking relief to declare that
for disqualification, the period should be treated as one year as
applied in all other provisions we are not touching to that aspect.
26. The learned Counsel for petitioner further submitted
that instead of seeking declaration that the said clause is
unconstitutional, the petitioner is seeking appropriate declaration
by applying the principle of reading in /down. He relied on
authorized officer of Central Bank of India (supra), it is held by
Hon'ble Apex Court in paragraph No. 93 as under:
"93. The principle of "reading down" a provision refers to
a legal interpretation approach where a Court, while
examining the validity of a statute, attempts to give a
narrowed or restricted meaning to a particular provision in
order to uphold its constitutionality. This principle is
rooted in the idea that courts should make every effort to
preserve the validity of legislation and should only declare
a law invalid as a last resort."
"97.... "It is also well settled that first attempt should be
made by the courts to uphold the charge provision and not
to invalidate it merely because one of the possible
interpretations leads to such a result, howsoever attractive
it may be. Thus, where there are two possible
interpretations, one invalidating the law, and the other
upholding, the latter should be adopted. For this, the courts
have been enduring, sometimes to give restrictive or
expansive meaning keeping in view the nature of
legislation, may be beneficial, penal or fiscal etc.
Cumulatively it is to subserve the object of the legislation.
Old golden rule is of respecting the wisdom of legislature
that they are aware of the law and would never have
intended for an invalid legislation. This also keeps courts
within their track and checks individual zeal of going
wavered. Yet in spite of this, if the impugned legislation
cannot be saved, the court shall not hesitate to strike it
down. Similarly, for upholding any provision, if it could be
saved by reading it down, it should be done, unless plain
words are so clear to be in defiance of the Constitution."
27. After going through the material made available by the
parties, which is based on various journals research and after
considering the various judgments and various similar provision
in other statute, there is no doubt that maximum period of one-
year is provided in almost all legislation and the persons having
third child during that period i.e. from the date of issuing
Notification, till further one year is protected. The only reason for
prescribing such a period of one year is to get the knowledge of
issuance of Notification to the person and to grant some
appropriate leeway. The cut-off date as prescribed in the
amendment provision grant exactly 9 months i.e. from issuance of
Government Resolution dated 28/03/2001 till 31/12/2001. Thus
the prescribed cut off date is erroneous and not based on any
discernible principle. Thus purpose of granting protection itself is
defeated.
28. As learned Counsel for petitioner is not challenging
constitutional validity but only seeking to construe the said period
given in the Government Resolution to be one year. In our
considered opinion, it appears that while stipulating cut-off date,
the State has not taken into consideration the provisions in other
enactments granting protection in case of third child, nor it
appears that any medical expert opinion is taken. In our
considered opinion, it is nothing but the error committed by the
draftsman as held in Zile Singh (supra), the word "after" have to
be interpreted so as to carry out legislative intent and not to make
capital out of the draftsman's folly. By not granting protection as
provided by the State Government in other legislation, the
petitioner is excluded for no reason, which is against the rule of
equality and also to the public policy. The public policy is to
provide succor to the needy and ensure general welfare and well
being of the citizen. If the cut-off date is not even giving normal
gestation period and the period to get notice/knowledge of the
notification, the purpose of the provision would defeat. Therefore,
it has to be considered as one year from the date of issuance of
Notification by giving it purposive interpretation. If it is not
construed in such of fashion, this Court would be committing the
mistake of doing the technical justice and not a substantive justice.
29. In our considered opinion, it is necessary to give
purposive interpretation to the clause. We hope and expect that
the State of Maharashtra would consider this aspect in right
perspective and will take steps to rectify its mistake. As such, we
are of the considered opinion that by giving purposive meaning to
the clause, the case of the petitioner deserves to be allowed as he is
already held to be eligible except for the reason of third child to
deceased employee. Accordingly, we proceed to pass the
following order:
ORDER
i) The petition is allowed.
ii) It is declared that date in Clause- E of the Government
Resolution dated 28/03/2001 be construed as 28/03/2002 i.e. one
year from the issuance of Government Resolution.
iii) The communication dated 21/03/2023 issued by
respondent No.3, Zilla Parishad, Chandrapur, through its Chief
Executive Officer, Chandrapur, is hereby quashed set aside.
iv) It is declared that petitioner is entitled to be appointed on
compassionate ground holding that the objection of third child is
no more survive as third child was born within a period of one
year of the issuance of notification.
v) We hereby direct the respondent No.3- Zilla Parishad,
Chandrapur, to issue an appointment order to the petitioner
within a period of three months. By order dated 12/06/2023, this
Court has already directed to keep one post of Junior Assistant
vacant, same shall be continued till filling up the post by
appointment of present petitioner.
30. Rule is made absolute in above terms. No costs.
JUDGE JUDGE
Jayashree../ R.S. Sahare
Signed by: Mrs. Ranjana Sahare
Designation: PA To Honourable Judge
Date: 02/07/2024 11:32:15
