Bombay High Court
Ashok Vijay Birari vs State Of Maharashtra Through Its ... on 18 March, 2025
2025:BHC-AUG:8359-DB
(1)
930 wp 13731-23 Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
930 WRIT PETITION NO. 13731 OF 2023
Ashok Vijay Birari,
Age : 33 Years, Occ. Nil,
R/o. Patonda,
Taluka Amalner, Dist. Jalgaon. .. Petitioner
(Ori. Applicant)
VERSUS
1. State of Maharashtra,
Through its Additional Chief Secretary,
Home Department, Mantralaya Mumbai.
2. The Superintendent of Police,
Jalgaon
3. The Deputy Superintendent of Police,
Economics Crime Branch, Additional Office of
Deputy Superintendent of Police (Mukhyalaya)
Taluka and District Jalgaon .. Respondents
(Ori. Non Applicants)
...
Advocate for the Petitioner : Mr. Vinod Prakash Patil
AGP for Respondent Nos. 1 to 3 : Mr. S. R. Lonikar
...
CORAM : S. G. MEHARE AND
SANDIPKUMAR C. MORE , JJ.
DATED : MARCH 18, 2025
JUDGMENT ( PER S. G. MEHARE, J) :
-
1. Rule. Rule made returnable forthwith. Heard finally by the
consent of the parties.
2. A small issue is involved in this matter, whether Clause 'E' of the
Government Resolution dated 28th March 2001 is unconstitutional.
930 wp 13731-23 Judgment.odt
Admittedly, the petitioner was son of the deceased from the first wife.
His compassionate appointment has been rejected in view of Clause
'E' which provides that the employee, who has children more than
two, after 31st December 2001, would not be entitled to the
compassionate appointment. The petitioner approached the learned
Maharashtra Administrative Tribunal which, by the impugned
judgment and order dated 6.6.2022, rejected the petition. The entire
case revolves around the constitutionality of the said clause. Earlier
there were different views about its constitutionality. The petitioner
has relied upon the case of Ms. Kashabai Sheshrao Wagh Vs. The Zilla
Parishad, Nashik and others in Writ Petition No. 7742 of 2014
delivered at Principal Seat, on 13 July 2019. The Co-ordinate Bench
upheld the claim of the petitioner, considering the family background
and no support to the family to survive.
3. The learned counsel for the petitioner also relied on the order in
the case of State of Maharashtra and others Vs. Firdous Mohammad
Yunus Patel in Writ Petition No. 2721 of 2021 of Co-ordinate Bench at
Principal Seat dated 4th August 2022. In this case, once again the Co-
ordinate Bench held Clause 'E' unconstitutional. The learned counsel
for the petitioner would submit that the law was settled by the
consistent judgments and view that Clause 'E' of the Government
Resolution dated 28th March 2001 is unconstitutional. The learned
Maharashtra Administrative Tribunal could not have taken different
930 wp 13731-23 Judgment.odt
view. Therefore, the petition deserves to be allowed.
4. The learned A.G.P. would refer to the judgment of Full Bench of
this Court in the case of Sunita Dinesh Gaikwad Vs. The State of
Maharashtra, 2023(5) Mh.L.J. 40. In this case, the Full Bench held
Clause 'E' of the Government Resolution dated 21.03.2001 is
constitutional. This judgment was taken since the issue was referred
to Larger Bench to have a concrete judgment against the conflicting
opinions. In this case, the Hon'ble Full Bench recorded the finding of
Kashabai (supra) case that the said judgment has to be restricted to
the peculiar facts of the case and further stated on the observation
rendered in the case.
5. The learned A.G.P. would submit since the Full Bench has
answered the reference, holding Clause 'E' of Government Resolution
dated 28th March 2001 constitutional, there is no mistake in the
impugned judgment and order. Resultantly, the petition deserves to be
dismissed.
6. The case revolves around the constitutionality of Clause 'E' of
the Government Resolution dated 28th March 2001. Perusal of the
judgment of the Co-ordinate Bench in Firdos as well as Kashabai, it
has been mentioned clearly that Clause 'E' has been interpreted
pursuant to the peculiar circumstances and those are restricted to
those cases only. In other words, those were not the binding
930 wp 13731-23 Judgment.odt
precedents. It has also been argued that the case of the Firdos was
not referred to in the Full Bench judgment of Sunita. Though that case
is not referred to, we are of the opinion that the issue referred to the
Full Bench was identical. The Hon'ble Full Bench has answered the
reference holding that Clause 'E' of the Government Resolution dated
28th March 2001 is constitutional. Though the case of Firdos has
been confirmed by the Hon'ble Supreme Court, reference was made
on the constitutionality of Clause 'E' of the Government Resolution
dated 28.03.2001. The judgment of the Full Bench binds us. We are
not satisfied with the argument of learned counsel for the petitioner
that since the earlier views were in favour of the petitioner, the
petitioner may be given benefit. In view thereof, we dismiss the Writ
Petition. No order as to costs.
(SANDIPKUMAR C. MORE) (S. G. MEHARE)
JUDGE JUDGE
Y.S.K.
