1 THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 3876/2007 Sou. Sunita Raju Donadkar ..vs.. State of Maharashtra and ors. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- Mr. Prashant Thakre, Advocate for petitioner. Mr. A. D. sonak, A.G.P. for respondent nos. 1 and 2. Mr. D. B. Walthare, Advocate for respondent no.3. CORAM: S. A. BOBDE & F. M. REIS,JJ. DATED : 8 th June, 2009 1. Heard learned counsel for the parties. 2. The petitioner has challenged the order of Maharashtra Administrative Tribunal setting aside her appointment as Police Patil. 3. Applications were invited for appointments to the post of Police Patil. In the advertisement it was clearly stated that the applications will have to be made in the prescribed form. The prescribed form required the candidates to state the number of issues born after 01.11.2001 along with an affidavit regarding the said number. The petitioner, who was selected, admittedly did not state the number of children she had and did not 2 select “Yes” or “No” to the questions. Yet, she was selected. The respondent no.3, herein challenged the petitioner’s appointment before the Tribunal, which held that the petitioner’s appointment could not have been made in view of omission of the petitioner to state the number of children she had before the prescribed date. The Tribunal, therefore, set aside the appointment. 4. Though, the Tribunal has not referred to the provisions of Maharashtra Civil Services (Declaration of Small Family) Rules, 2005, the Rules have been brought to our notice. The Rules clearly requires candidates to declare the size of his/her family and treats such declaration as an “additional essential requirement for appointment to Grade A, Grade B, Grade C and Grade D posts in the Government service.” Rule 3 of the Rules reads as follows:- “3. Necessity of declaration of Small Family- Notwithstanding anything contained in any rules or orders or instruments made in that behalf, regulating recruitment to Group A, B, C or D post in Government Services or any other order or instruments made in that behalf, the 3 declaration of Small Family shall be an additional essential requirement for an appointment to Group A, Group B, Group C or Group D post in any Government service: Provided that, a person having more than two children on the date of commencement of these rules shall not be disqualified for appointment under these clause so long as the number of children he had on the date of such commencement does not increase: Provided further that child or more than one child born in a single delivery within the period of one year from the date of such a commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause.” 4. Learned counsel for the petitioner submitted that the petitioner cannot be treated as disqualified for appointment under these rules since there is no increase in the number of children she had after the date of commencement. According to the learned counsel, the petitioner is, therefore, qualified and the Tribunal ought not to have struck down her appointment. We are not impressed by this argument particularly when Rule 3 4 treats the declaration as an additional essential requirement. In the present case, it is clear that the said declaration was absent in the petitioner’s application. We are, therefore, of the opinion that the appointment of the petitioner was not legal. 5. In addition, we find that the Tribunal has set aside the selection process on the ground that the Sub Divisional Magistrate, Brahmapuri prescribed a written test and oral interview on his own. He apparently, further prescribed 50% marks for the interview and 50% marks for the written test. We are in agreement with the finding of the Tribunal that allocation of 50% marks for the interview is on the higher side. We also approve the observations of the Tribunal that it was not for the Tribunal to prescribe the extent of marks. We may observe that the State has not pointed out any rules prescribing procedure for the appointment of candidates to the post of Police Patil. Nonetheless, we feel that the matter should be regulated by some policy and not left to individual opinion of the Officer incharge of the recruitment. 5 6. We are informed that in pursuance of the directions of the Tribunal, the respondent had advertised the post afresh and the petitioner intends to apply for the said post in accordance with law. In the circumstances, we see no reason to interfere in the order of the Tribunal. The petition is, therefore, dismissed. However, having regard to the fact that the petitioner has been working for a period of three years, she will be permitted to work till new appointments are effected. Writ petition stands disposed of accordingly. No order as to costs. JUDGE JUDGE kahale