Bombay High Court
Sagar Sunil Savale vs The State Of Maharashtra Through Its ... on 6 January, 2025
2025:BHC-AUG:534-DB
936-wp-10765-2022.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10765 OF 2022
Shri Sagar S/o Sunil Savale,
Age: 29 years, Occu.: Nil,
R/o: At Post Kingaon,
Tq. Yawal, District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
General Administration Department,
Mantralaya, Mumbai - 32.
2. The Divisional Commissioner,
Nashik Division, Nashik.
3. The Chief Executive Officer,
Zilla Parishad, Jalgaon, District Jalgaon,
4. The Deputy Chief Executive Officer,
Zilla Parishad, Jalgaon, District Jalgaon.
...
Advocate for the Petitioner : Mr. Yogesh B. Bolkar
AGP for Respondent/State : Mr. S.B. Pulkundwar
Advocate for Respondent Nos.3 & 4 : Mr. V.V. Gujar
...
CORAM : S.G. MEHARE &
SHAILESH P. BRAHME, JJ.
DATED : JANUARY 06, 2025
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. Heard learned counsel for the petitioner, learned AGP for
the State and learned counsel for the contesting respondents.
3. The facts of the case in brief were that the petitioner is a
first son of deceased Sunil Savale, who admittedly died on
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26.12.2006. At that time, the petitioner was minor. He attained
majority on 10.10.2010. Thereafter, on 08.08.2011 i.e. within a year,
after attaining majority, he applied to the Zilla Parishad for
compassionate appointment. Admittedly, the petitioner was listed in
the wait-list of the appointment on compassionate ground.
Thereafter, the list was revised and again, the name of the petitioner
was included in the wait-list. However, by the impugned order dated
06.07.2022, it has been communicated to the petitioner that since his
father had three children after 31.12.2001, he is not entitle to be
appointed on the compassionate ground.
4. Learned counsel for the petitioner has vehemently argued
that this decision is prima facie illegal. The respondent/authority has
misinterpreted the law and incorrectly applied it to the petitioner. On
facts, he would submit that the third child was born on 28.01.1997
and after the cut-off date, the fourth child was born on 18.05.2003.
5. To bolster his argument, he relied on the case of Firdous
Mohammad Yunus Patel Vs. State of Maharashtra and Others, 2022
SCC Online Bom 1645. He has pressed into service the law laid down
by the Principal Seat at Bombay considering the term 'small family'
particularly clause (E) of the Government Resolution dated
28.03.2001. He would submit that since before cut-off date there
was no law in existence about the 'small family', the petitioner is
entitled to get compassionate appointment.
936-wp-10765-2022.odt
6. Learned counsel for the contesting respondents would
submit that the facts of the case of Firdous Mohammad (cited supra)
are altogether different. The term 'small family' has been considered
in the peculiar facts and circumstances of the case. The petitioner in
the said case was the second wife of the deceased, who had two
children. Therefore, it has been held that that it is a small family and
she is entitled to compassionate appointment. The facts of this case
are altogether different. It was not the case of second wife having
two children. On the contrary, the deceased employee had a single
wife, who had delivered four children. The cause of action arose after
the death. On the date of cause of action, the law relating to 'small
family' was in force. Hence, the provisions of law existing on the date
of cause of action would apply. Therefore, it cannot be said that the
deceased had a small family. He supported the impugned decision of
the authority and prayed to dismiss the petition.
7. The Maharashtra Civil Services (Declaration of Small
Family) Rules, 2005 were applied to the employees. Rule 3 speaks of
the necessity of declaration of 'small family'. As per this Rule, the
employees regulating recruitment to Group A, B, C or D post in
Government Service, 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 service. It has
been further provided that, a person having more than two children
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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. It has
been further provided 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.
8. Government Resolution dated 28.03.2001 has also
imposed certain clauses defining a small family. Clause (E) which has
been relied upon by the petitioner in the context of the judgment of
Firdous Mohammad (cited supra), reads thus :
"(E) Family members of employees having third child after
31.12.2001 shall not be considered eligible for appointment on
compassionate basis."
9. This rule is very specific about the compassionate
appointment. Admittedly, after the cut-off date i.e. 31.12.2001, the
deceased had fourth child. The small family means a wife, a husband
including two child. The definition is very specific that a wife should
not deliver children more than two to make the claim legal for the
compassionate appointment. In this case, admittedly the deceased
had four children and it was violation of the Government Resolution
dated 28.03.2001. The law laid down in the case of Firdous
Mohammad (cited supra) is based upon peculiar facts. The facts of
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that case are altogether different. Hence, would not assist the
petitioner. Therefore, we are of the opinion that the petitioner is not
entitled for compassionate appointment and the impugned
communication/order is legal and proper. For the above reasons, the
writ petition stands dismissed.
10. No order as to costs.
11. Rule is discharged.
(SHAILESH P. BRAHME, J.) (S.G. MEHARE, J.)
Mujaheed//
