The court ruled that the cut-off date for disqualification in compassionate appointments must allow for a one-year period post-notification to account for normal gestation, ensuring fairness and justice.

JUDGMENT :

M.S. JAWALKAR, J.

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by consent and request of learned Counsel for both the parties at the admission stage.

3. The petition questions the Government Resolution dated 28/03/2001, which prohibits the family member of deceased employee for the purpose of compassionate appointment as third child has been born after 31/12/2001. It is submitted by petitioner that the father of the petitioner was appointed on the post of Assistant Teacher in the year 1988. He expired during the service on 14/03/2009. The petitioner moved an application for appointment on compassionate ground on 07/12/2009. Thereafter, two subsequent applications were preferred. Respondent No. 3 rejected the application of the petitioner as he is not entitled for compassionate appointment as the application is not made within a period of one year. The said order of respondent No. 3 dated 19/02/2019 was challenged by the petitioner in Writ Petition No. 4113/2019, in which, by judgment dated 26/08/2022, this Court made it very clear that petitioner is entitled for incorporation in the list of eligible candidates.

4. Thereafter, the name of the petitioner was incorporated in the waiting list at S. No. 2. Thus, he was entitled for appointment immediately. There is report dated 08/03/2023 of Block Development Officer reporting that financial condition is sordid and brother of the petitioner is suffering from physical disability, whereas, the sister is suffering from sickle Cell anemia. The respondent No. 4 i.e. the Deputy Chief Executive Officer, Zilla Parishad, Chandrapur by it’s communication dated 21/03/2023, turned down the request of the petitioner for appointment on compassionate ground on the basis that after enquiry, it was revealed that the deceased employee is having third child born after 31/12/2001 and in view of Government Resolution dated 21/09/2017, Clause-3 Sub Clause-6, the applicant-petitioner is not entitled to be appointed on compassionate ground as deceased employee was having third child after the cut-off date i.e. 31/12/2001. The said communication is under challenge in the present writ petition.

5. The petitioner draw our attention to the Maharashtra Civil Services (Declaration of Small Family) Rules of 2005. It is submitted that these Rules were implemented with effect from 28/03/2005. By way of introduction of these Rules, only the employees working in the service of Government were made aware about the requirement of having small family. Before these Rules were came into force, there was no such requirement that the declaration regarding small family will have to be submitted by every Government servant. The Government made it clear that these Rules shall not apply to those employees who were already in service prior to 28/04/2005.

6. The scheme of compassionate appointment was introduced by the State of Maharashtra vide Government Resolution dated 26/10/1994. As such, the employees who were already in service on 26/10/1994 were made known about the said scheme that if at all there is demise of the employee during the course of service, the eligible legal heir will be appointed in their place. However, on 28/03/2001 by issuing Government Resolution for the first time barrier of having third child was introduced.

7. It is the contention of the petitioner that in the basic scheme which was introduced on 26/10/1994, the barrier for not being entitled for compassionate appointment due to having third child was not there. Therefore, Government Resolution dated 28/03/2001 cannot be made applicable retrospectively and bar introduced cannot be made applicable for those employees who were already in service as on 26/10/1994, when the scheme was introduced. Apart from this, the Government Resolution dated 28/03/2001, provides protection and exemption to a person who delivers child between 9 months before the cut-off date, whereby, disqualifying even those candidates in whose cases the child h