Case Note & Summary
The petitioner, whose father Hiralal was an Assistant Teacher in Panchayat Samiti, Zilla Parishad, Chandrapur, died in service on 14/03/2009. The petitioner applied for compassionate appointment on 07/12/2009, but the application was rejected on 19/02/2019 on the ground of delay. The petitioner challenged this rejection in Writ Petition No. 4113/2019, which was allowed on 26/08/2022, directing the respondents to incorporate the petitioner's name in the list of eligible candidates. Consequently, the petitioner's name was placed at Sr. No. 2 in the waiting list. However, the Deputy Chief Executive Officer, Zilla Parishad, Chandrapur, by communication dated 21/03/2023, rejected the petitioner's request for compassionate appointment on the ground that the deceased employee had a third child born after 31/12/2001, relying on Government Resolution dated 21/09/2017 and Clause 3 Sub Clause 6 of Government Resolution dated 28/03/2001. The petitioner challenged this communication. The court examined the Government Resolution dated 28/03/2001, which introduced the bar of having a third child for compassionate appointment, and the Maharashtra Civil Services (Declaration of Small Family) Rules, 2005, which provided exemptions for employees with more than two children on the date of commencement. The court held that the bar cannot be applied retrospectively to employees who were already in service before the resolution came into force. The court also noted that the Government Resolution dated 28/03/2001 did not provide a reasonable notice period, making it arbitrary. The court allowed the petition, quashed the impugned communication, and directed that the Government Resolution dated 28/03/2001 shall be applicable only after one year from its publication, i.e., from 28/03/2002, and children born till that date shall not be considered for disqualification. The respondents were directed to consider the petitioner's application for compassionate appointment afresh.
Headnote
A) Service Law - Compassionate Appointment - Retrospective Application of Government Resolution - Government Resolution dated 28/03/2001 introduced a bar on compassionate appointment for employees having a third child born after 31/12/2001 - The court held that this bar cannot be applied retrospectively to employees who were already in service before the resolution came into force, as the scheme of compassionate appointment was introduced in 1994 without such a bar - The court also noted that the Maharashtra Civil Services (Declaration of Small Family) Rules, 2005 provided exemptions for employees with more than two children on the date of commencement - Held that the impugned communication rejecting the petitioner's appointment was unsustainable (Paras 3-15).
B) Constitutional Law - Right to Equality - Arbitrary State Action - The court observed that fixing a cut-off date of 31/12/2001 without providing a reasonable notice period was arbitrary, as it deprived families where the third child was conceived before the resolution - The court directed that the Government Resolution dated 28/03/2001 shall be applicable only after one year from its publication, i.e., from 28/03/2002, and children born till that date shall not be considered for disqualification (Paras 7-8, 15).
Issue of Consideration
Whether the Government Resolution dated 28/03/2001, which disqualifies a family member of a deceased employee from compassionate appointment if the employee had a third child born after 31/12/2001, can be applied retrospectively to employees who were already in service before the resolution came into force.
Final Decision
The court allowed the petition, quashed the impugned communication dated 21/03/2023, and directed that the Government Resolution dated 28/03/2001 shall be applicable only after one year from its publication, i.e., from 28/03/2002, and children born till that date shall not be considered for disqualification. The respondents were directed to consider the petitioner's application for compassionate appointment afresh.
Law Points
- Retrospective application of government policy
- compassionate appointment
- small family norm
- prospective operation of rules
- legitimate expectation
Case Details
Writ Petition No. 4113/2019 (related) and present writ petition (number not mentioned)
Shri S.M. Vaishnav, Advocate for petitioner Shri N.R. Rode, AGP for respondent Nos. 1 & 2/State Ms H.N. Jaipurkar Advocate h/f G.M. Reve, Advocate for respondent Nos.3 & 4
Shri. Amol Hiralal Telrandhe
The State of Maharashtra, Through its Secretary for Rural Development Department, Ors.
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Nature of Litigation
Writ petition challenging the rejection of compassionate appointment on the ground that the deceased employee had a third child born after the cut-off date.
Remedy Sought
The petitioner sought a declaration that the Government Resolution dated 28/03/2001 shall be applicable after one year from its publication and that children born till 28/03/2002 shall not be deprived of compassionate appointment.
Filing Reason
The petitioner's application for compassionate appointment was rejected by the Deputy Chief Executive Officer, Zilla Parishad, Chandrapur, on the ground that the deceased employee had a third child born after 31/12/2001, as per Government Resolution dated 21/09/2017.
Previous Decisions
The petitioner had earlier filed Writ Petition No. 4113/2019 challenging the rejection of his application on the ground of delay, which was allowed on 26/08/2022, directing the respondents to incorporate the petitioner's name in the list of eligible candidates.
Issues
Whether the Government Resolution dated 28/03/2001, which disqualifies a family member of a deceased employee from compassionate appointment if the employee had a third child born after 31/12/2001, can be applied retrospectively to employees who were already in service before the resolution came into force.
Whether the cut-off date of 31/12/2001 is arbitrary and unreasonable, as it does not provide a reasonable notice period for employees to adjust their family size.
Submissions/Arguments
The petitioner argued that the Government Resolution dated 28/03/2001 cannot be made applicable retrospectively to employees who were already in service before the scheme of compassionate appointment was introduced in 1994. The petitioner also argued that the cut-off date of 31/12/2001 is arbitrary as it does not provide a reasonable notice period.
The respondent Zilla Parishad initially supported the rejection but later, through written notes, supported the petitioner's contention.
Ratio Decidendi
A government resolution introducing a disqualification for compassionate appointment based on family size cannot be applied retrospectively to employees who were already in service before the resolution came into force. Further, a reasonable notice period must be provided before such a disqualification takes effect, and a cut-off date that does not allow for such notice is arbitrary.
Judgment Excerpts
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 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.
It appears that some of the employees who were appointed prior to 28/02/2005, having third child exempted as per provision of declaration of the Small Family Rules, 2005, as those are not applicable to the person having more than two children on the date of commencement of the Rules.
Procedural History
The petitioner's father died in service on 14/03/2009. The petitioner applied for compassionate appointment on 07/12/2009. The application was rejected on 19/02/2019 on the ground of delay. The petitioner challenged this in Writ Petition No. 4113/2019, which was allowed on 26/08/2022, directing the respondents to incorporate the petitioner's name in the list of eligible candidates. The petitioner's name was placed at Sr. No. 2 in the waiting list. However, by communication dated 21/03/2023, the Deputy Chief Executive Officer, Zilla Parishad, Chandrapur, rejected the request for compassionate appointment on the ground that the deceased employee had a third child born after 31/12/2001. The petitioner then filed the present writ petition challenging that communication.
Acts & Sections
- Maharashtra Civil Services (Declaration of Small Family) Rules, 2005: Rule 3
- Maharashtra Village Panchayat Act, 1959: Section 14(1)(J-1)
