Family Of Employee Having More Than Two Children Ineligible For Compassionate Appointment: Bombay High Court Dismisses Claim Of Deceased Cop's Son

A division bench of Justice AS Chandurkar and Justice Rajesh S Patil dismissed a writ petition challenging a judgment by the Maharashtra Administrative Tribunal which upheld the rejection of the petitioners' claim for compassionate appointment.

“Having considered the rival submissions and having perused the judgment of the Tribunal, we do not find that there is any case made out to interfere in exercise of writ jurisdiction”, said the court.

The case arose after the death of the husband of petitioner Vidya Ahire on February 11, 2013. Following his death, she sought a compassionate appointment for her son Manish. However, the petitioners' request was denied on January 11, 2019, on the grounds that the family had more than two children, disqualifying them from receiving benefits under the Government Resolution dated March 28, 2001.

The GR stipulates that in case of the birth of a third child in the family after December 31, 2001, the appointment on compassionate grounds cannot be granted and such family will be ineligible for any compassionate appointment.

The petitioners challenged this decision contending that there was no publication of the GR of 2001 and that the deceased had no knowledge of the GR. Further, they said that the GR should not have been applied because the third child was born on August 7, 2002, before the enforcement of the Maharashtra Civil Services (Declaration of Small Family) Rules, 2005.

These Rules provide for declaration of Small Family as an additional essential requirement for recruitment to Group A, B, C, and D posts. The Rules provide that anyone having more than two children on the date of commencement of these rules shall not be disqualified for appointment as long as the number of children he had on the date of such commencement does not increase.

The tribunal had observed that these Rules are for the purpose of regular recruitment to posts in the state government and do not govern compassionate appointment which is a special scheme governed by the GR of 2001. The tribunal further observed that the GR is the policy decision taken by the Government and its ignorance cannot be the ground to contend that it is not applicable to the Applicant.

The state defended the Tribunal's decision by citing a Full Bench judgment of the Aurangabad Bench in the case of Sunita Dinesh Gaikwad and Anr. v. State of Maharashtra and Anr., which upheld the validity of the GR dated March 28, 2001. He said that the petitioners did not meet the requirements of the resolution.

The High Court found no grounds to interfere in the tribunal's decision. It observed that the Rules of 2005 were not applicable in this case as the issue is governed by the GR dated March 28, 2001.

“The contentions urged herein have been rightly considered by the Tribunal inasmuch as prior publication of the Government Resolution is not shown to be mandatory. The decisions relied upon by the learned counsel for the petitioners relate to publication of statutory rules wherein the procedure for publication has been mandated. In the present case, we are concerned with applicability of a Government Resolution for which it is not necessary to have it published”, the court further observed.

Case no. – Writ Petition No. 9685 of 2023

Case Title – Vidya Sunil Ahire and Ors. v. Commissioner of Police, Thane