Writ Petition No.2074 of 2018

11th April, 2018.

Petitioner Counsel: Shri H.D. DANGRE
Respondent Counsel: Shri S.A. ASHIRGADE

JUDGMENT

B. P. DHARMADHIKARI, J. :- Heard Shri H.D. Dangre, learned counsel for the petitioner and Shri S.A. Ashirgade, learned AGP for respondent Nos. 1 to 4 finally with consent, by issuing Rule and making it returnable forthwith.

2. The order of Maharashtra Administrative Tribunal (MAT) dated 16.02.2018 dismissing O.A. No. 415 of 2017 has been questioned before this Court by the unsuccessful applicant. The applicant - petitioner was selected as Police Patil and thereafter has been terminated on the ground that he suppressed existence of a third child in the family. His selection and appointment was, therefore, found to be in violation of the Maharashtra Civil Services (Small Family) Rules, 2005 (hereinafter referred to as 2005 Rules).

3. Shri Dangre, learned counsel, submits that definition of "Small family" contained in 2005 Rules (supra) itself excludes a child if it is adopted child or adopted children. The contention is, this exclusion is deliberate and with a view to encourage tendency in society to adopt or to give in adoption.

4. Here, the third child was born in 2014 and immediately after birth, was given to brother of wife in adoption. The said child, therefore, qualifies as an adopted child and hence needs to be excluded from the family of the petitioner.

5. Without prejudice it is pointed out that selection and appointment of the petitioner is in June 2016 i.e. about two years after birth of said child and hence it cannot be said that adoption was a ploy resorted to secure employment.

6. Shri Ashirgade, leaned AGP is opposing the contentions. According to him, child which forms part of Small family on account of adoption has been deliberately excluded as a family, which adopts such child, may have their own children thereafter. He further points out that intention is to encourage only taking of child/ children in adoption and, therefore, in Rule 2(d)(ii) of 2005 Rules, plural word "children" has also been employed. He, therefore, submits that the MAT has correctly looked into the controversy.

7. The facts are not in dispute. The third child viz., Kum. Yukti is born in 2014 and thereafter has been given in adoption to brother of petitioner's wife. The advertisement to fill in the post was published on 19.06.2015 and the petitioner participated in it. On that day, there were only two children in his family. The petitioner has also invited our attention to a Registered Deed of Adoption which is dated 12.07.2016. It is pointed out that in the said document, it is expressly recorded that Kum. Yukti was given in adoption immediately after birth and she was also named accordingly. However, no formal document was then executed.

8. The attention is invited to birth certificate issued by the State Government of Madhya Pradesh in which on 10.07.2014, entry of birth of Yukti on 19.04.2014 has been taken. The name of father is Deoram while name of mother is Sangeeta. The submission is, thus adopting parents were recorded as parents at that juncture only.

9. The provisions of Rules mentioned supra which defines "Small family" given in Rule 2(d), read as under :

"2. Definitions - In these rules, unless the context otherwise requires,

(d) "Small family" means wife and husband including two children.

Explanation-For the purposes of this clause,

(i) Where a couple has only one child on or after the date of such commencement, any number of children born out of a single subsequent delivery shall be deemed to be one entity;

(ii) "Child" does not include an adopted child or children."

10. The definition, therefore, shows that wife, husband and two children constitute small family. The explanation clarifies that for the purpose of counting number of children in such small family, adopted child or adopted children do not count. Thus, when number of members in a family of person seeking employment is to be counted, child/ or children becoming part of that family because of their addition to it, on account of adoption are excluded. The child given in adoption by family to other family is not excluded.

11. In the light of arguments advanced, we do not find any perversity or error in the order of Maharashtra Administrative Tribunal. Writ Petition is dismissed. Rule discharged. However, there shall be no order as to costs.

Petition dismissed.