Safiya Malik

The Bombay High Court has quashed an order of the Maharashtra Administrative Tribunal that had directed the state government to consider a compassionate appointment for the son of a deceased police constable. The court ruled that the claim was barred under the state’s policy, which disqualifies a government servant’s third child, born after December 31, 2001, from availing such appointments. The court observed that the Tribunal’s decision was based on an earlier ruling that was later clarified by a Full Bench, thereby rendering the Tribunal’s findings unsustainable.

The writ petition was filed by the State of Maharashtra, challenging the Tribunal’s order in Original Application No. 1326 of 2022, which had quashed the rejection of a compassionate appointment claim made by the respondent, Tanmay Sunil Gite.

The respondent is the son of late police constable Sunil B. Gite, who passed away on April 23, 2010. The deceased had two wives—his first wife, Surekha, had a daughter named Komal, while his second wife, Shivani, had two children, including the respondent. The respondent was born on January 9, 2003, and was thus considered the third child of the deceased government servant.

Upon attaining majority on January 9, 2021, the respondent applied for a compassionate appointment on September 30, 2022. The application was accompanied by an affidavit from his stepmother and stepsister, consenting to his appointment. However, the Commissioner of Police, Mumbai, rejected the claim on November 25, 2022, citing a government resolution dated March 28, 2001, which bars the third child born after December 31, 2001, from eligibility.

Challenging this rejection, the respondent approached the Maharashtra Administrative Tribunal, which ruled in his favor on July 13, 2023. The Tribunal directed the state government to consider his claim and place his name on the waiting list for a suitable position, subject to fulfillment of the necessary terms and conditions. The state government then filed the present writ petition before the High Court.

The Bombay High Court examined whether the Tribunal's order could be sustained in light of the legal position regarding compassionate appointments and the applicability of the Government Resolution of March 28, 2001 (GR of 2001).

The court noted that the Tribunal had relied on the Bombay High Court's ruling in Kashibai Wagh v. Zilla Parishad, Nashik & Ors. (WP No. 7742 of 2024), which had declared Clause (e) of the GR of 2001 unconstitutional. However, a subsequent Full Bench ruling in Sunita Dinesh Gaikwad & Anr. v. State of Maharashtra & Anr. (WP No. 9284 of 2022) clarified that the Kashibai Wagh judgment was confined to the facts of that particular case and did not hold Clause (e) to be unconstitutional for all cases.

The High Court referred to Clause (e) of the GR of 2001, which states: "The families of government employees having a third child born after December 31, 2001, shall not be eligible for appointment on compassionate grounds."

The court also pointed to Clause 3(6) of Appendix-A of the Government Resolution of September 21, 2017 (GR of 2017), which reiterated this policy. The court observed that the compassionate appointment scheme is framed to regulate public employment and is subject to conditions, including population control measures.

The court stated: "In view of the fact that Clause (e) of the said GR of 2001 is clearly applicable to the facts of the present case and the respondent being the third child of the government servant born after 31/12/2001, the family members of the said government servant are not entitled or eligible for appointment on compassionate grounds."

The High Court also held that the issue of legitimacy of the respondent’s birth was irrelevant to the case, as the GR of 2001 disqualifies a third child irrespective of legitimacy. The judgment recorded: "Whether legitimate or illegitimate, the fact remains that the concerned government servant had three children and therefore the said angle is irrelevant, especially after the Full Bench view."

The court further noted that since the Full Bench ruling was delivered on July 27, 2023, after the Tribunal’s order, the Tribunal did not have the benefit of considering the clarified legal position. However, the High Court found no purpose in remanding the matter back to the Tribunal, as the legal position was now settled.

The High Court allowed the writ petition and quashed the Tribunal’s order. The ruling stated: "The impugned Judgment and Order dated 13/07/2023 passed by the Member, Maharashtra Administrative Tribunal, Mumbai, in Original Application No. 1326 of 2022 is quashed and set aside and the Original Application No. 1326 of 2022 is dismissed."

The court upheld the rejection of the compassionate appointment claim and declared: "Considering that the said GR of 2001 and its Clause (e) squarely applies to the case of the respondent, he cannot be held entitled to the compassionate appointment."

Case Title: The State of Maharashtra & Ors. v. Tanmay Sunil Gite
Case Number: WP No. 19203 of 2024
Bench: Justice A. S. Chandurkar & Justice M. M. Sathaye

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