Tilottama vs State of Maharashtra and Others

I.K. Jain, J—Rule. Rule made returnable forthwith. Heard finally with consent.

By way of present petition, the petitioner impugns the judgment and order dated 11.12.2014 passed by the learned Maharashtra Administrative Tribunal (MAT) in Original Application No. 745/2013, filed by the present petitioner.

The petition arises out of certain glaring facts stated in a nutshell as under:

Respondent No. 2-Sub Divisional Magistrate, Sakoli, District: Bhandara issued a proclamation on 19.12.2012 to fill up one post of village Police Patil, Sonpuri, Tq.Sakoli, District Bhandara from OBC category, reserved for women. The last date to submit application was 5.1.2013. Petitioner, respondent No. 3 and others applied for the said post. Respondent No. 2 conducted written screening test on 3.2.2013. Petitioner and respondent No. 3 were declared qualified in the written examination. The oral interviews were held on 13.2.2013. Then vide order dated 18.4.2013, respondent No. 3- Sou.Gayabai Digambar Khotele came to be appointed as Police Patil of village Sonpuri.

It is the contention of petitioner that on 24.2.2013, respondent No. 3 delivered third child and she was disqualified for the said appointment in view of Maharashtra Civil Services (Declaration of Small Family) Rules, 2005 (for short "Rules of 2005"). The main grievance of petitioner is that in breach of Rules of 2005, respondent No. 2 issued appointment order to respondent No. 3. She submitted a complaint to respondent No. 2 along with birth certificates of three daughters of respondent No. 3 and objected for her appointment as she incurred disqualification. Despite her objection, impugned appointment order came to be issued in favour of respondent No. 3.

As respondent No. 2 did not take any action, petitioner approached the MAT by way of filing Original Application No. 745/2013. The MAT vide order dated 11.12.2014 rejected the Original Application. Hence the present petition.

Learned counsel for petitioner submitted that on 13.2.2013 personal interviews of only two candidates i.e. petitioner and respondent No. 3 came to be conducted and that time respondent No. 3 was carrying third child in womb. Learned counsel pointed out that on 24.2.2013 respondent No. 3 delivered third child and thereby automatically became disqualified as the third child was not saved even under Rule 3 second proviso of Rules of 2005

According to learned counsel for respondent No. 3 on the day of proclamation i.e. 19.12.2012, she had only two children. On 11.2.2013 one daughter was given in adoption to brother of her husband and a registered deed was accordingly executed. She gave birth to the third child on 24.2.2013.

For ready reference Rule 3 of Rules of 2005 is reproduced here as under:-

"3. Necessity of declaration of Small Family

Notwithstanding anything 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 service:

Provided that, a person having more than two children on the date of commencement of these rules shall not be disqualified for appointment 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 a commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause."

Needless to state that two-child norm has been existing in India ever since Independence. This norm was considered in the greater interest of the nation. There were seldom any controversy or opposition to the same. Family planning is essentially a scheme referable to health, family, welfare, women and child development and social welfare. The problem of population explosion is a national and global issue for which priority in policy oriented legislations wherever needed is necessary. The legislative means to check the menace of growing population has been held to be valid throughout. In this premise impugned order passed by the MAT needs to be considered.

The crux of the dispute revolves around the adoption of one of the daughters of respondent No. 3. As indicated above, respondent No. 3 has come with a case that she had only two children on the date of proclamation as the third child was born later and before the birth of third child, one of the daughters was given in adoption to the brother of her husband.

It is significant to note that on 19.12.2012 when respondent No. 2 issued proclamation the third child was in the womb of respondent No. 3. It appears that to give go-bye to the legal hurdle, one of the children was given in adoption on 11.2.2013 i.e. just two days before the oral interviews. It is not in dispute that respondent No. 3 gave birth to the third child on 24.2.2013.

In the light of the above self-speaking circumstances and keeping in view the scope and object of the Rules of 2005, we find that the very object of rule 3 would be frustrated if the stand taken by respondent No. 3 is accepted. The learned MAT was expected to at least consider the object and scope of the Rules of 2005. As the same was not considered we are of the view that interference in the writ jurisdiction is inevitable.

In the result, impugned order dated 11.12.2014 in Original Application No. 745/2013 passed by the learned Maharashtra Administrative Tribunal is quashed and set aside. The Original Application filed by the petitioner is allowed. The appointment of respondent No. 3 to the post of Police Patil of village Sonpuri is quashed and set aside. It is further directed that if the petitioner is next to respondent No. 3 in order of merit, she shall be appointed to the post of Police Patil within a period of four weeks from today.

Rule is made absolute in the aforesaid terms, with no order to costs.