JUDGMENT :

Ravindra V. Ghuge, J.

1. This petition was heard by the Division Bench on 07.12.2022. After considering the extensive submissions of the learned Advocates for the respective sides, the following order was passed:-

“1. The petitioners have put forth a case seeking compassionate appointment. Petitioner No.1 is the widow of the employee of respondent No.2/Zilla Parishad, namely, Dinesh Gaikwad. Petitioner No.2 is the son of the deceased born on 21.02.1994 and who is 28 years and 10 months as on date. The deceased passed away on 05.08.2017, in harness. The deceased and petitioner No.1 had a third child born on 18.09.2003.

2. The State of Maharashtra issued the Government Resolution dated 28.03.2001 in relation to the eligibility for compassionate appointment. Clause E of the said Government Resolution reads as under :-

Translated version of the said clause is, “Family members of a deceased employee, who had more than two children and the excess child was born after 31.12.2001, would not be eligible for compassionate appointment.”

3. Two judgments have been cited before us. Both are delivered by the Division Bench of this Court.

4. The judgment cited by the petitioner is dated 03.07.2019 delivered in Writ Petition No.7742/2014 (Civil Appellate Jurisdiction, Mumbai) filed by Kashabai Sheshrao Wagh vs. The Zilla Parishad, Nashik and others. In this matter, the petitioner was the second wife of the deceased employee. The first wife of the said employee, who passed away, had two children from her marriage with the employee. Thereafter, the employee married Kashabai, which is the second marriage. A child was born to Kashabai, out of her marriage with the deceased employee. This Court, therefore, considered that the petitioner (Kashabai) had only one child out of her marriage with the deceased employee and hence, she was eligible to seek compassionate appointment, though the deceased employee, factually had three children out of which, first two children were born out of his marriage with the first wife, now deceased.

5. The learned advocate for the petitioners has laid heavy stress on paragraphs 6 and 7 of the judgment in Kashabai (supra), which read thus:-

“6. The conditions in the policy decisions for grant of appointment on compassionate basis contains an embargo to the applicant being disentitled on the fact of the deceased government servant having 3 children.

7. Notwithstanding there being no prayer to quash the said condition as unconstitutional, we declare the same to be unconstitutional. For the reason in a given set of facts, as in the instant case, the Petitioner who has only one child would suffer the brunt of public employment being denied on the reasoning that her deceased husband was blessed with two children from the previous marriage. The intention behind the policy is to control the exploding population and not to prohibit remarriages. The Petitioner was the second wife of the deceased employee of Zilla Parishad and as far as she was concerned, she bore only one child.”

6. The learned AGP and the learned advocate representing the Zilla Parishad place reliance on the judgment delivered by another Division Bench of this Court, dated 08.03.2022 in Writ Petition No.6819/2021 (Civil Appellate Jurisdiction, Mumbai) filed by Bhagyashree Pradip Chopade vs. MIDC and others. The learned counsel concede that the view taken by the earlier Division Bench in Kashabai (supra) was not cited before the Division Bench, which dealt with the case of Bhagyashree (supra). The learned Division Bench in Bhagyashree (supra) observed in paragraphs 5 to 10 as under:-

“5. Government Resolution dated March 28, 2001 (hereafter "relevant GR") ordains that compassionate appointment cannot be claimed by a dependent of an employee dying-in-harness, who is otherwise qualified, if such employee has more than two children. In the present case, the deceased employee had 4 (four) children during his lifetime; but since his second and third daughters were twi