High Court
Facts
ra-22-2025.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADREVIEW APPLICATION NO. 22 OF 2025IN WP/3287/2024Ramhari S/o Govind Sontakke,Age; 40 years, Occu: Labour,R/o. Khadgaon Road, Latur,Tq. & Dist. Latur...ApplicantVersus1.The State of Maharashtra,Through its Secretary, Home Department, Maharashtra State,Mantralaya, Mumbai-32.2. The Special Inspector General of Police,Nanded Range, Nanded.3.The Superintendent of Police,Latur, Dist. Latur...Respondents...Advocate for Applicant : Mr. Kiran Salunke h/f Mr. Mahesh KaleAGP for Respondent/State : Mr. S.R. Wakale... CORAM : Y.G. KHOBRAGADE & S.G. CHAPALGAONKAR, JJ. RESERVED ON : APRIL 04, 2025 PRONOUNCED ON : MAY 08, 2025ORDER : (PER S.G. CHAPALGAONKAR, J.)1.Heard Mr. Kiran Salunke learned advocate appearing forapplicant and learned AGP for respondents/State.2.Notice made returnable forthwith. Learned AGP waivesfor respondents. 3.By consent of parties, review application is heard finally. ra-22-2025.odt(2)4.The applicant/original respondent seeks review ofjudgment and order dated 21.08.2024 passed by this Court in WritPetition 3287 of 2024. Brief facts giving rise to present review petition can bestated as under. 5.The applicant instituted Original Application No.580 of2022 before Maharashtra Administrative Tribunal, Bench atAurangabad seeking direction against respondent authorities for hisappointment on compassionate ground, as his father, who washolding post of PSI died in harness. Tribunal allowed his applicationrelying upon judgment of this Court in case of Ms. Kashabai SeshraoWagh Vs. The Zilla Parishad, Nashik and Others decided on03.07.2019, wherein this Court declared that Clause (E) ofGovernment Resolution dated 28.03.2001 is unconstitutional. Theclause (E) of GR prohibits compassionate appointment of familymember of deceased employee, who had more than two children,particularly when excess child was born after 31.12.2001.Accordingly, under order of Tribunal, despite the father of applicanthad more than two children, the applicant was held entitled forappointment on compassionate ground. The order passed by Maharashtra Administrative Tribunalwas subjected to challenge by State of Maharashtra before this courtvide Writ Petition No.3287 of 2024. This Court relying upon the ra-22-2025.odt(3)decision of Coordinate Bench in case of Bhagyashree PradeepChopade Vs. Maharashtra Industrial Development Corporation1, afterreferring to Full Bench decision in case of Sunita Dinesh Gaikwad Vs.State of Maharashtra2, allowed writ petition and set aside judgmentand order dated 15.11.2022 passed by learned MaharashtraAdministrative Tribunal in O.A. No.580 of 2022 vide order dated21.08.2024, which is sought to be reviewed on behalf ofapplicant/original respondent. 6.Mr. Kiran Salunke, learned advocate appearing forapplicant invites our attention towards Judgment of Division Bench ofthis Court dated 04.08.2022 in case of Firdous Mohammad YunusPatel Vs. The State of Maharashtra and Ors in Writ Petition No.2721of 2021 and submits that, in case of Firdous (supra), this Court hadoccasion to interpret scheme under Government Resolution dated28.03.2001, in particular Clause (E). This Court took a view that ruledoes not contemplate a situation where the employee separatelycontracts a marriage with another person and has children by thatother marriage. This Court observed that Clause (E) must be read toinclude an immediate family of an employee, a sole spouse and nomore than two children by that marriage. The disqualificationattaches because of number of children of the employee from thatspouse. In concluding para, this Court observed that interpretation of12022 SCC Online Bom 1177222023 (5) Mh.L.J. 40 ra-22-2025.odt(4)clause (E) with Rule 6 of the Maharashtra Civil Services (Declarationof Family) Rules, 2005, being a pronouncement on law, must continueas a binding decision. That interpretation cannot be restricted to thefacts of this case. 7.Mr. Salunke would further submit that Full Bench of thisCourt in case of Sunita Gaikwad (supra) concluded that declarationmade in case of Kashabai (supra) as to unconstitutionality of Clause(E) of the Government Resolution dated 28.03.2001 shall not beapplied in other matters and its effect shall be restricted to the facts ofthe that case only. He would therefore submit that Full Bench had nooccasion to interpret Clause (E) hence, law laid down by this Court inthe case of Firdous (supra) would still govern the case of applicant.Mr. Salunke would further submit that the judgment in the case ofFirdous (supra) could not be brought to the notice of this Court asadvocate appearing for applicant advanced his submissions limited toprayers in Civil Application No.7339 of 2004 seeking for vacating ofinterim relief. Mr. Salunke would further submits that judgment inthe case of Firdous (supra) was annexed with affidavit in reply filed inwrit petition for ready reference of this Court, but the same doesn'tfind reference in order under review.8.Learned AGP however submits that this Court decidedwrit petition relying upon the judgment of Full Bench in case ofSunita (supra). Therefore, even it is assumed that Division Bench
Legal Reasoning
ra-22-2025.odt(5)judgment in case of Firdous (supra) missed attention of this Courtthat would not vitiate the ultimate decision rendered in writ petition.9.We have considered submissions advanced by learnedadvocates appearing for respective parties. Prima facie, we find thatjudgment in case of Firdous (supra) elaborately considers and decidesthe issue as to interpretation of Clause (E) of Government Resolution.Further stipulates that said judgment would continue as bindingdecision as to interpretation of said clause. This Court was notapprised with the said decision at the time of hearing of writ petition,as such it missed consideration while passing the order under review. 10.In so far as submission of learned AGP that this Courtrelied upon Full Bench decision in case of Sunita (supra), it can beobserved that Full Bench has rendered decision on issue that wasreferred to for consideration. The issue referred reads thus : ‘whether, clause E can be said to have been declared unconstitutional for all purposes and in it’s entirety’.” 11.Ultimately, Full Bench held that declaration in case ofKashabai (supra) as to unconstitutionality of Clause (E) ofGovernment Resolution dated 28.03.2001 shall be restricted to thefacts of that case only and clause (E) shall not be treated asunconstitutional on the basis of such declaration. Thus, Full Benchhas not rendered any decision as to interpretation of Clause (E). ra-22-2025.odt(6)Prima facie, it appears that there are conflicting views of twoCoordinate Benches of this Court as to interpretation of same clause.Firstly, there is decision in the case of Bhagyashree (supra) whereinrelying upon Clause (E) of Government Resolution dated 28.03.2001,the claim for appointment on compassionate ground was declined,observing that deceased employee had more than two children and insuch cases, under Clause (E) compassionate appointment isprohibited. Conversely, in case of Firdous (supra), Clause (E) isinterpreted in different manner holding that in case excess childrenwas born from different spouse or marriage, disqualification underClause (E) would not attract. In aforesaid circumstances, we believethat reference to earlier Division Bench judgment in case of Firdous(supra), which is latter on affirmed by Hon’ble Supreme Court, wasnecessary while rendering judgment under review since it has directbearing on interpretation of clause (E) of GR dated 28.03.2001. 12.Hence, we allow review application, recall order dated21.08.2024 and restore Writ Petition No.3287 of 2024 for hearingafresh. 13.Rule made absolute in above terms.(S.G. CHAPALGAONKAR, J.) (Y.G. KHOBRAGADE, J.)Mujaheed//