121-WP-6473-2026 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 6473 OF 2026 (Faizanullah s/o Faizullah Khan Vs. Chief Executive Officer, Zilla Parishad, Buldhana & Ors.) __________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. Mr. H.S. Chitaley, Counsel for the petitioner. Mr. A.V. Palshikar, A.G.P. for the respondent/State. ..... CORAM : ANIL L. PANSARE AND NIVEDITA P. MEHTA, JJ. AUGUST 27, 2026 The challenge is to Clause (E) of a Government Resolution dated 28/3/2001 saying that it is violative of Articles 14 and 21 of the Constitution of India. 2] In the light of the challenge, we have, vide order dated 25/8/2026, invited petitioner’s attention to a judgment passed by the Full Bench of this Court at Aurangabad in Sunita w/o Dinesh Gaikwad & Anr. Vs. The State of Maharashtra & Anr. [Writ Petition No. 9284/2022 decided on 27/7/2023]. We have directed the petitioner’s Counsel to go through the judgment, and make statement whether he intends to pursue the cause. 3] The Counsel submits that he has gone through the judgment, and is of the view that the present prayer is maintainable. 4] The substantive prayer reads as under : “A) Hold & Declare Clause (E) of Government Resolution No. Akammpa 1000/P.K.R.20/2000 dated 28.03.2001 as violative of Article 14 & 2026:BHC-NAG:11202-DB 121-WP-6473-2026 2 21 of the Constitution of India, 1950 and be pleased to quash and set aside the same.” 5] This prayer, according to us, has been, in a way, considered by the Full Bench. The question referred to the Full Bench is quoted in paragraph 2 of the judgment, which reads as under : “2. ….. ‘whether, clause E can be said to have been declared unconstitutional for all purposes and in it’s entirety’.” 6] As could be seen, the issue referred to the Full Bench was, whether Clause (E) can be said to have been declared unconstitutional for all purposes and in its entirety. The reasons for reference find place in order dated 7/12/2022 passed by the Division Bench, which has referred the question. The Full Bench has reproduced in its judgment, the order passed by the Division Bench, of which, paragraphs 8 and 9 reads thus : “8. The learned AGP points out from the same paragraph 7 in Kashabai (supra) that the said judgment has to be restricted to the peculiar facts of the case and further stresses on the observation “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.” He, therefore, submits that though Clause E is held to be unconstitutional, notwithstanding that specific reasons for declaring it to be ultra vires are not set out, he contends that such conclusion has to be restricted to the facts in the case of Kashabai (supra). He then refers to Bhagyashree (supra) to contend that the said judgment makes things clear that it is an employee who should not have more than two children after 31.12.2001, whether or not, he may have any number of wives, as the compassionate appointment is 121-WP-6473-2026 3 available only to the eligible survivor of the family of the employee dying in harness. Clause E clearly indicates that the compassionate appointment is possible only if the employee dies in harness. 9. Be that as it may, we do find that the view taken in Kashabai (supra) was not brought to the notice of the learned Division Bench in Bhagyashree (supra). At the same time, the facts in Kashabai (supra) are somewhat different from the facts appearing in Bhagyashree (supra). However, we find that the learned advocate for the petitioners as well as the learned AGP and the learned advocate for the Zilla Parishad, are right in submitting that if clause E of the Government Resolution dated 28.03.2001 is considered, it pertains to the family of the deceased employee dying in harness. His family comprising of more than two children, after the cut off date, would not be entitled for compassionate appointment. However, the issue is as to whether, clause E can be said to have been declared unconstitutional for all purposes and in it’s entirety. As per the learned advocate for the petitioners, that once such clause is declared unconstitutional, it does not exist in the eyes of law.” 7] As could be seen, the core issue was, whether compassionate appointment is available only to eligible survivor of the family of employee dying in harness. Clause (E) of the aforesaid Government Resolution indicates that such employment is possible only if the employee dies in harness. The Division Bench, in context with the divergent views in Kashabai Sheshrao Wagh Vs. The Zilla Parishad, Nashik & Ors. [Writ Petition No. 7742/2014 decided on 3/7/2019] and Bhagyashree Pradip Chopade Vs. MIDC & Ors. [Writ Petition No. 6819/2021 decided on 8/3/2022], referred the aforesaid 121-WP-6473-2026 4 question to the Larger Bench. The Full Bench answered the same in following manner : “19. In view of the above, we are unable to accept the contention of the Petition that the declaration in Kashabai (supra) would have a binding effect in perpetuity. The said conclusion would, at best, be restricted only to the facts of the said case. For the reasons recorded herein above, in the light of the law crystallized by the Honourable Supreme Court, the declaration in Kashabai (supra) that clause E of the Government Resolution dated 28.03.2001 is unconstitutional, shall not be deemed to have so declared for other matters and would be restricted to the facts of the said case. We answer the issue addressed to us, accordingly.” 8] Thus, the Full Bench has held that the declaration in Kashabai (supra) that Clause (E) of the Government Resolution dated 28/3/2001 is unconstitutional, shall not be deemed to have so declared for other matters, and would be restricted to the facts of the said case. In other words, it is held that Clause (E) of the said Government Resolution cannot be said to be declared unconstitutional for all purposes and in its entirety. 9] That being so, we do not find that the present prayer is maintainable. The petition is, accordingly, dismissed. (JUDGE) (JUDGE) Sumit Signed by: Mr. Sumit Agrawal Designation: PS To Honourable Judge Date: 28/08/2026 11:24:41