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Judgment
(Per Abasaheb D. Shinde J.) :-
Rule. Rule made returnable forthwith. With the consent of parties the Writ Petition is heard finally at the stage of admission.
By this Writ Petition filed under Article 226 of the Constitution of India, the petitioner has put forth the following main prayers :
A. By a writ of certiorari or orders or directions in the nature of certiorari, the impugned judgment and order dated 19.07.2023 passed by the Respondent No.2 Chief Executive Officer Zilla Parishad Ahmednagar may kindly be quashed and set aside. (Exhibit ‘A’ Page No.18)
B. By writ of Mandamus or orders or directions in the nature of Mandamus, this Hon’ble High Court may kindly be pleased to direct the respondents authorities to appoint present petitioner on compassionate basis in any category as per his qualification.
SHORN OF UNNECESSARY DETAILS, THE FACTS IN BRIEF ARE AS UNDER :-
The father of the petitioner namely, Shivaji Vitthal Mhaismale, was working as a Primary Teacher in a School run by Respondent Nos.2 and 3 who died in harness on 07.01.2022. Deceased father is survived by the petitioner, his mother and two sisters. The petitioner on 28.01.2022 submitted an application to Respondent No.2 seeking appointment on compassionate ground. On 03.03.2022 he submitted another application. As earlier two applications were not considered, he submitted one more application on 06.06.2023 requesting Respondent No.2 to appoint him on compassionate ground. Respondent No.2, however, by the impugned order, rejected the application of the petitioner relying on the Government Resolution dated 23.03.2001,(for the sake of brevity, hereinafter called as “the said Government Resolution”), predominantly Clause-E of the said Government Resolution, which disentitle the family members of a deceased employee to be appointed on compassionate ground, if the third child is born to him after 31.12.2001. The petitioner therefore has approached this Court.
SUBMISSIONS :
Learned Counsel for the petitioner submits that the impugned order passed by Respondent No.2, thereby rejecting the petitioner’s application on the basis of the said Government Resolution, is contrary to the basic object of the compassionate appointment. The petitioner is born on 16.01.2002, just 16 days after the cut off date i.e. 31.12.2001, prescribed in the said Government Resolution. He further submits that, even otherwise the relevant clause of the said Government Resolution would not be applicable to the case of the petitioner in the light of decision of Co-ordinate Bench of this Court at Nagpur in the case of Amol Hiralal Telrandhe vs. State of Maharashtra and Ors. reported in 2024 (6) Mh.L.J. 409. He, therefore, urged that the impugned order passed by Respondent No.2 is liable to be quashed and set aside by directing the Respondents to appoint the petitioner on compassionate ground.
Per contra, learned Counsel appearing for Respondent No.2 would support the impugned order, thereby contending that Respondent No. 2 has passed the impugned order in accordance with the said Government Resolution, as admittedly, the deceased employee is having third child, including the petitioner, who is born after a cut off date as contemplated under the said Government Resolution. He, therefore, urged that the petitioner is not entitle for being appointed on compassionate ground.
We have heard the learned Counsel for the petitioner, learned AGP and learned Counsel appearing for Respondent No.2 at length and perused the record.
Before adverting to the submissions advanced by both sides, it would be apt to reproduce the said Government Resolution on the basis of which the impugned order has been passed, which reads thus :-
शासकीय सेवेत अनुकंपा तत्त्वावर
नियुक्ती देण्याबाबत
महाराष्ट्र शासन
सामान्य प्रशासन विभाग
शासन निर्णय क्रमांक अंकंपा. १०००/प्र. क्र. २०/२०००/आठ
मंत्रालय, मुंबई ४०० ०३२, दिनांक २८ मार्च २००१.
वाचा -(१) शासन निर्णय, सामान्य प्रशासन विभाग, क्रमांक अंकंपा. १०९३/२३३५/प्र. क्र. ९०/९३/आठ, दिनांक २६ ऑक्टोबर १९९४. (२) शासन निर्णय, सामान्य प्रशासन विभाग, क्रमांक अंकंपा. १०९५/प्र. क्र. ३४-अ/आठ, दिनांक २३ ऑगस्ट १९९६. (३) शासन निर्णय, सामान्य प्रशासन विभाग, क्रमांक अंकंपा. १०९३/२३३५/प्र. क्र. ९०/९३/आठ, दिनांक १२ मार्च १९९७. (४) शासन परिपत्रक, नगर विकास विभाग, क्रमांक बीसीसी. १०८६/५४४/सीआर-६३/८६/न. वि. १०, दिनांक ६ मे १९८६. (५) शासन परिपत्रक, नगर विकास विभाग, क्रमांक : संकीर्ण. २९९२/१९९९/प्र. क्र. १६४/९२/न. वि. ६. दिनांक ५ नोव्हेंबर १९९२.
शासन निर्णय
शासन सेवेत असताना दिवंगत/अकाली सेवानिवृत्त झालेल्या कर्मचाऱ्यांच्या नातेवाईकांस अनुकंपा तत्त्वावर नियुक्ती देण्यासंबंधीच्या योजनेचे सुधारित नियम संदर्भाधीन क्रमांक (१) येथील दिनांक २६ ऑक्टोबर १९९४ च्या शासन निर्णयान्वये विहित करण्यात आलेले आहेत. त्यात संदर्भाधीन क्रमांक (२) व (३), येथील दिनांक २३ ऑगस्ट १९९६ आणि दिनांक १२ मार्च १९९७ च्या शासन निर्णयान्वये केलेल्या सुधारणांचा पुनर्विचार करण्याचे शासनाच्या विचाराधीन होते. याबाबत विचार करून आता शासन खालीलप्रमाणे निर्देश देत आहे:-
अ. ...
ब. ...
क. ...
ड. ...
(इ) दिनांक ३१ डिसेंबर २००१ नंतर तिसरे अपत्य झालेल्या कर्मचाऱ्यांच्या कुटुंबियांस अनुकंपा तत्त्वावरील नियुक्तीसाठी पात्र समजले जाणार नाही.
महाराष्ट्राचे राज्यपाल यांच्या आदेशानुसार व नावाने,
प्रकाश लोखंडे,
उप सचिव, महाराष्ट्र शासन
It would not be out of place to mention that, there are certain provisions in the State enactments such as Section 14(1) (j-1) of Maharashtra Village Panchayats Act, 1959, Section 16(1) (n) read with section 16(2)(e) of the Maharashtra Zilla Parishad and Panchayat Samiti Act, 1961 as well as Section 16(1)(k) of the Maharashtra Municipal Council Nagar Panchayat Act and Industrial Township Act, 1965 which provides similar kind of disqualifications as stipulated in the said Government Resolution. However, the provisos appended therewith grants protection of one year from the applicability of the said provisions. By way of an illustration the provisions of Section 14 (J-1) of the the Maharashtra Village Panchayats Act, 1959 is reproduced as under :
14.Disqualifications.— [(1)] No person shall be a member of a panchayat, or continue as such, who—
(a)…
(b)…
(c)…
[(j-1) has more than two children :
Provided that, a person having more than two children on the date of commencement of the Bombay Village Panchayats and the Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 1995 (Mah. XLIV of 1995/2000), (hereinafter in this clause referred to as “the date of such commencement”), shall not be disqualified under this 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 commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause ; or]
(Emphasis Supplied)
In short, in all these enactments the protection of One year is granted, whereas, in Clause-E of the said Government Resolution only 9 months protection is granted to the Government employee to whom the third child is born upto 31.12.2001.
This Court had an occasion to consider Clause-E of the said Government Resolution in the case of Amol Hiralal Telrandhe (supra). In the said case, the third child of a deceased employee was born on 10.03.2002, as a result of which he was held disentitled for compassionate appointment having born after 31.12.2001. This Court construed the cut off date in the said clause as 28.03.2002 i.e. a period of one year from the date of the said Government Resolution instead of 31.12.2001. The relevant observations of the this court in case of Amol Hiralal Telrandhe (supra) reads thus:-
“17.In view of the Government Resolution dated 28-3-2001, the earlier Government Resolution dated 23-8-1996 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 28-3-2001, it appears that protection is granted only for 9 months to the person to whom the third child is born 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 28-3-2001 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.The 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.
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 28-3-2001 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:
i)The petition is allowed.
(ii)It is declared that date in Clause- E of the Government Resolution dated 28-3-2001 be construed as 28-3-2002 i.e. one year from the issuance of Government Resolution.
(iii)…
(iv)…
(v)… (Emphasis Supplied)
In the light of dictum of this Court in the case of Amol Hiralal Telrandhe (supra), we are of the considered view that the petitioner who is born on 16.01.2002 is entitled to be appointed on compassionate ground having been born within a period of one year from the date of issuance of the said Government Resolution. In the view of above, we find that, the impugned order passed by Respondent No.2 is unsustainable and deserves to be quashed and set aside. We, therefore, pass the following order :-
:: ORDER ::
Writ Petition is allowed in terms of prayer clauses (A) and (B).
Respondent Nos.2 and 3 are directed to consider the case of the petitioner for compassionate appointment on its own merits and shall not reject the same on the ground on which the impugned order is passed, within a period of three (03) months from the date of receipt of copy of this Order.
Rule is made absolute in the above terms. No order as to costs.