JUDGMENT : M.S. JAWALKAR, J. 1. Heard. 2. Rule. Rule made returnable forthwith. Heard finally by consent and request of learned Counsel for both the parties at the admission stage. 3. The petition questions the Government Resolution dated 28/03/2001, which prohibits the family member of deceased employee for the purpose of compassionate appointment as third child has been born after 31/12/2001. It is submitted by petitioner that the father of the petitioner was appointed on the post of Assistant Teacher in the year 1988. He expired during the service on 14/03/2009. The petitioner moved an application for appointment on compassionate ground on 07/12/2009. Thereafter, two subsequent applications were preferred. Respondent No. 3 rejected the application of the petitioner as he is not entitled for compassionate appointment as the application is not made within a period of one year. The said order of respondent No. 3 dated 19/02/2019 was challenged by the petitioner in Writ Petition No. 4113/2019, in which, by judgment dated 26/08/2022, this Court made it very clear that petitioner is entitled for incorporation in the list of eligible candidates. 4. Thereafter, the name of the petitioner was incorporated in the waiting list at S. No. 2. Thus, he was entitled for appointment immediately. There is report dated 08/03/2023 of Block Development Officer reporting that financial condition is sordid and brother of the petitioner is suffering from physical disability, whereas, the sister is suffering from sickle Cell anemia. The respondent No. 4 i.e. the Deputy Chief Executive Officer, Zilla Parishad, Chandrapur by it’s communication dated 21/03/2023, turned down the request of the petitioner for appointment on compassionate ground on the basis that after enquiry, it was revealed that the deceased employee is having third child born after 31/12/2001 and in view of Government Resolution dated 21/09/2017, Clause-3 Sub Clause-6, the applicant-petitioner is not entitled to be appointed on compassionate ground as deceased employee was having third child after the cut-off date i.e. 31/12/2001. The said communication is under challenge in the present writ petition. 5. The petitioner draw our attention to the Maharashtra Civil Services (Declaration of Small Family) Rules of 2005. It is submitted that these Rules were implemented with effect from 28/03/2005. By way of introduction of these Rules, only the employees working in the service of Government were made aware about the requirement of having small family. 5. The petitioner draw our attention to the Maharashtra Civil Services (Declaration of Small Family) Rules of 2005. It is submitted that these Rules were implemented with effect from 28/03/2005. By way of introduction of these Rules, only the employees working in the service of Government were made aware about the requirement of having small family. Before these Rules were came into force, there was no such requirement that the declaration regarding small family will have to be submitted by every Government servant. The Government made it clear that these Rules shall not apply to those employees who were already in service prior to 28/04/2005. 6. The scheme of compassionate appointment was introduced by the State of Maharashtra vide Government Resolution dated 26/10/1994. As such, the employees who were already in service on 26/10/1994 were made known about the said scheme that if at all there is demise of the employee during the course of service, the eligible legal heir will be appointed in their place. However, on 28/03/2001 by issuing Government Resolution for the first time barrier of having third child was introduced. 7. It is the contention of the petitioner that in the basic scheme which was introduced on 26/10/1994, the barrier for not being entitled for compassionate appointment due to having third child was not there. Therefore, Government Resolution dated 28/03/2001 cannot be made applicable retrospectively and bar introduced cannot be made applicable for those employees who were already in service as on 26/10/1994, when the scheme was introduced. Apart from this, the Government Resolution dated 28/03/2001, provides protection and exemption to a person who delivers child between 9 months before the cut-off date, whereby, disqualifying even those candidates in whose cases the child has already been conceived even prior to the publication of Government Resolution dated 28/03/2001. 8. The petitioner drawn our attention to similar such disqualification clauses incorporated in several other statute, such as Section 14(1) (J-1) of the Maharashtra Village Panchayat Act, 1959, wherein, the person who has more than two children is disqualified being member of Grampanchayat. However, proviso to this Section clearly provides that a child born in a single delivery within a period of one year from the date of commencement of amending Act shall not be taken into consideration for the purposes of disqualification. However, proviso to this Section clearly provides that a child born in a single delivery within a period of one year from the date of commencement of amending Act shall not be taken into consideration for the purposes of disqualification. It is contended that if the policy make an intends to deprive any of its citizens from any benefits of the Government policy, then a reasonable notice of such decision has to be given. Due to the fixation of erroneous date of implementation i.e. 23/12/2001, the family members/children of deceased employee where third child has either conceived just before the Government Resolution or immediately after the Government Resolution is published are deprived from the benefit without there being any fault on their part. As such, petitioner is seeking declaration that the Government Resolution dated 28/03/2001 will be applicable after the date of lapse of one year and the family members of the employee, including any children born till 28/03/2002, shall not be deprived from compassionate appointment. 9. Learned Counsel for petitioner relied on following citations: (1) Javed and Others vs. State of Haryana, 2003 (8) SCC 369 (2) Zile Singh vs. State of Haryana and Others, (2004) 8 SCC 1 (3) Dnyaneshwar Patiram @ Ratiraj Shirbhiye vs. Divisional Commissioner, Nagpur and Others, 2012 (3) Mh. L.J. 253 (4) Kumari Shrilekha Vidyarthi and Others vs. State of U.P. and Others, (1991) 1 SCC 212 10. As against this, the learned Counsel Ms Jaipurkar appearing on behalf of Zilla Parishad submitted that the Zilla Parishad has implemented the Government Resolution as it is, therefore, there is no reason to allow the petition. That Ms. Jaipurkar, learned Counsel for respondents on request has done medical research as to understand the duration of the normal gestation period during pregnancy of a woman and assisted this Court. We appreciate the efforts taken by her in assisting the Court. 11. Heard both the parties at length, gave a thoughtful consideration to the contentions. It is matter of record that petitioner earlier filed Writ Petition No. 4113/2019 challenging the rejection of application for appointment on compassionate ground on the ground of delay. The said Writ Petition was allowed and respondents were directed to incorporate the name of the petitioner in the list of eligible candidates. Thereafter, the name of the petitioner was incorporated in the waiting list at Serial No. 2. The said Writ Petition was allowed and respondents were directed to incorporate the name of the petitioner in the list of eligible candidates. Thereafter, the name of the petitioner was incorporated in the waiting list at Serial No. 2. There is no dispute over financial condition of the family. There is report to that effect by Block Development Officer on record. Moreover, brother of petitioner is suffering from 51% physical disability and sister is suffering from sickle cell. The report also supports this fact. However, it appears that the Chief Executive Officer, Zilla Parishad, Chandrapur by its communication dated 21/03/2023 refused to appoint the petitioner on compassionate ground as it was revealed during the enquiry that deceased employee is having third child after 31/12/2001 and on the basis of Government Resolution dated 21/09/2017, it was informed that petitioner cannot be appointed on compassionate grounds. 12. It is admitted position that Hiralal was Assistant Teacher in Panchayat Samiti, Zilla Parishad, Chandrapur. He expired while in service on 14/03/2019. His first wife namely Leelabai expired on 19/05/2000. Father of petitioner performed second marriage with one Roopa. Komal was born from the first wife and petitioner and Khushal born from his second wife, Khushal born on 10/03/2002. Though as per directions, name of the petitioner was included in the list for appointment on compassionate ground, the appointment was rejected on the ground that deceased Hiralal gave birth to a third child after the cut-off date i.e. 31/12/2001, as per Government Resolution dated 21/09/2017. 13. It needs to be noted here that, the State of Maharashtra framed the declaration of Small Family Rules, 2005 dated 28/03/2005, by which, declaration of the small family as one of the essential qualification for recruitment to group A, B, C and D post in Government Department. However, proviso to Rule 3 of the said Notification specifically provided as under “3. However, proviso to Rule 3 of the said Notification specifically provided as under “3. Necessity of declaration of Small Family - Notwithstanding any thing contained in any rules or orders or instruments made in that behalf, regulating recruitment to Group A, B, C or D post in Government Service or any other order or instruments made in that behalf, the 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 services: 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 a 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.” 14. It appears that some of the employees who were appointed prior to 28/02/2005, having third child exempted as per provision of declaration of the Small Family Rules, 2005, as those are not applicable to the person having more than two children on the date of commencement of the Rules. It is also clear that in the said Rules, the child born within the period of one year from the date of such commencement is also held not to be disqualified for having third child. 15. It can be seen that State of Maharashtra also passed many enactments wherein the person having third child is declared disqualified for appointment or to be elected as a member of Village Panchayat, the purpose of such disqualification is one of the measure to control population. In view of the population explosion and limited resources, the Government has decided to impose such restrictions. However, while imposing or disqualifying such persons, due care is taken to protect the person who gave birth to a third child within a period of one year from the issuance of enactment or Notification. The reason is obvious that one year takes care of any conception on or around the commencement of the act, considering the normal period of gestation being 9 months. 16. The reason is obvious that one year takes care of any conception on or around the commencement of the act, considering the normal period of gestation being 9 months. 16. The provision in Maharashtra Village Panchayat Act and Section 14 (1) (j-1), in Maharashtra Village Panchayat and Panchayat Samiti Act, by way of Section 16 (1) (N) read with Section 16 (2) (E) of the said Act provides for the period of one year. Similarly, the Maharashtra Municipal Council Nagar Panchayat and Industrial Township Act in Section 16(1)(a) provides the period of one year. Thus it can be seen that one year period is prescribed in almost all provisions. 17. In view of the Government Resolution dated 28/03/2001, the earlier Government Resolution dated 23/08/1996 provision 2 (a) was deleted and clauses C, D, E, F were inserted. We are concerned with clause (E). As per this clause, it is declared that if any employee having third child after 31/12/2001, family member of that employee will not be entitled to be appointed on compassionate ground. 18. On perusal of Government Resolution dated 28/03/2001, it appears that protection is granted only for 9 months to the person to whom the third child is borned i.e. up to 31/12/2001. Now, question before us is that whether the period of 9 months is justified or sufficient period to serve the purpose of the legislation. The date of impugned Government Resolution is of 28/03/2001 specifying the cut-off date 31/12/2001 for the birth of third child i.e. a person would not be entitled to be appointed on compassionate ground, if the deceased employee have third child born beyond this cut-off date. 19. Learned Counsel for Zilla Parishad in her reply submitted that we have acted as per Government Resolution. However, learned Counsel for Zilla Parishad submitted notes on gestation period wherein she relied on ‘due date calculator of delivery’ available on Australian Government website and other website. A simple method to calculate the due date is to add 7 days to the date of the first day of woman’s last period (menstrual cycle) then add 9 months. 20. However, learned Counsel for Zilla Parishad submitted notes on gestation period wherein she relied on ‘due date calculator of delivery’ available on Australian Government website and other website. A simple method to calculate the due date is to add 7 days to the date of the first day of woman’s last period (menstrual cycle) then add 9 months. 20. If we presume a first day of woman’s menstrual cycle of last period before conception (pregnancy) as 28/03/2001 (i.e. the date of commencement of the Government Resolution) and calculate a due date as per above calculator in 2 steps then the result would be as follow (i.e. due date) (Based on 30 days average menstrual cycle of a woman) 28/03/2001 + 7 = 04/04/2001 04/04/2001 + 9 months = 04/01/2002. Therefore, even if minimum period of gestation as 9 months is taken into consideration, the due date is beyond the cut-off date. The report also says that there are delivery, varies from woman to woman depending upon duration of varies menstrual cycle (as woman as varying normal average menstrual cycle from 21 days to 40 days.) Accordingly, due date also calculated. Thus, considering the normal pregnancy calculator also, the cut-off date 31/12/2001 is unjustified and without any foundation or rational. 21. In view of the Section 112 of the Evidence Act, if child is born within 280 days after the dissolution of marriage, it is conclusive proof that the child is legitimate child of that man. The further period, over and above this period of 9 months is to provide notice of introducing such disqualification. Moreover, by the time, woman get knowledge that she has been conceived fetus would might be of 4 to 6 weeks. Even if, she get knowledge of bar in view of the Government Resolution dated 28/03/2001, i.e. date of issuance of Government Resolution, she could not terminate the pregnancy unless there is medical contingency. In normal pregnancy, the termination of the pregnancy is not allowed by law. As such, the protection of one year is all these enactment is having some rational and medical loss. 22. The reason for such prescription of one year is explained in Javed and others (supra), in paragraph No. 4 as under: “4. Placed in plain words the provision disqualifies a person having more than two living children from holding the specified offices in Panchayats. 22. The reason for such prescription of one year is explained in Javed and others (supra), in paragraph No. 4 as under: “4. Placed in plain words the provision disqualifies a person having more than two living children from holding the specified offices in Panchayats. The enforcement of disqualification is postponed for a period of one year from the date of commencement of the Act. A person having more than two children up to the expiry of one year of the commencement of the Act is not disqualified. This postponement for one year takes care of any conception on or around the commencement of the Act, the normal period of gestation being nine months. If a woman has conceived at the commencement of the Act then anyone of such couples would not be disqualified. Though not disqualified on the date of election if any person holding any of the said offices, incurs a disqualification by giving birth to a child one year after the commencement of the Act he becomes subject to disqualification and is disabled from continuing to hold the office. The disability is incurred by the birth of a child which results in increasing the number of living children, including the additional child for one year after the commencement of the Act, to a figure more than two.” 23. In Zile Singh (supra), wherein the provision of Haryana Municipal Council Act, 1973, was in question whereby a person having more than two children on or after the expiry of one year of the commencement of the said Act is held deemed to be disqualified. Though question before the Hon’ble Apex Court challenging the retrospective effect of Harayana Municipal Council Amendment Act in Section 3 and 15, the observations made in the judgment in paragraph No. 26 is relied on. The Hon’ble Apex Court held as under: “26........However, the legislature thought that it would be more reasonable if that is qualification was not applied by reference to a child born within a period of one year from the date of commencement of the Act. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Evidence Act of 1872 and added to it a little more margin of 85 days. The provision spells out this meaning but for the error in drafting. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Evidence Act of 1872 and added to it a little more margin of 85 days. The provision spells out this meaning but for the error in drafting. Even if there would have been no amendment (as introduced by the second amendment Act) the proviso as it originally stood, if subjected to judicial scrutiny, would have been so interpreted and the word “after” would have been read as “upto” or assigned that meaning so as to carry out the legislative intent and not to make capital out of the draftsman’s folly. Or, the proviso- if not read down- would have been declared void and struck down as being arbitrary and discriminatory inasmuch as the persons having more than two living children on the date of enactment of the Act and within one year thereafter and the persons having more than two living children after the date of one year could not have formed two classes capable of being distinguished on a well-defined criterion so as to fulfill the purpose sought to be achieved by the legislature.” 24. Learned Counsel for petitioner relied on Dnyaneshwar (supra), in the said matter before this Court, rejection of the objection that petitioner was member and Sarpanch of Gram Panchayat has incurred disqualification under Section 14 (1)(j-1) of the Bombay Village Panchayat Act was in question. This Court explained the object of proviso to Section 14(1) (j-1) as under: “The object of introducing second proviso to Section 14 (1) (j-1) of the said Act is to postpone the enforcement disqualification to take care of cases where conception has already taken place on or around the date of commencement of the said Act, the normal period of gestation being nine months. The object is also to provide notice of introducing such disqualification. The operation of second proviso is thus restricted to a period of one year from the date of commencement of the said Act.” 25. Learned Counsel for petitioner relied on Ku. The object is also to provide notice of introducing such disqualification. The operation of second proviso is thus restricted to a period of one year from the date of commencement of the said Act.” 25. Learned Counsel for petitioner relied on Ku. Shrilekha Vidyarthi (supra) in support of his contention that the every action of the State or an instrumentality of the State, must be informed by reason, even if, there is a presumption about validity of State action, actions uninformed by reasons may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. Even if there is a presumption validity of State action, it is held in Shrilekha (supra) that in view of the wide-ranging and in essence, all pervading spread of State activity in discharge of its welfare functions, the question assumes considerable importance and cannot be shelved. The basic requirement of Article 14 is fairness in action by the State and we find it difficult to accept that the State can be permitted to act otherwise in any field of its activity, irrespective of the nature of its functions when it has the uppermost duty to be governed by the rule of law. Non-arbitrariness, in substance, is only fair play in action.” However, as petitioner is not challenging the validity of the impugned Notification and only seeking relief to declare that for disqualification, the period should be treated as one year as applied in all other provisions we are not touching to that aspect. 26. The learned Counsel for petitioner further submitted that instead of seeking declaration that the said clause is unconstitutional, the petitioner is seeking appropriate declaration by applying the principle of reading in /down. He relied on authorized officer of Central Bank of India (supra), it is held by Hon’ble Apex Court in paragraph No. 93 as under: “93. The principle of “reading down” a provision refers to a legal interpretation approach where a Court, while examining the validity of a statute, attempts to give a narrowed or restricted meaning to a particular provision in order to uphold its constitutionality. The principle of “reading down” a provision refers to a legal interpretation approach where a Court, while examining the validity of a statute, attempts to give a narrowed or restricted meaning to a particular provision in order to uphold its constitutionality. This principle is rooted in the idea that courts should make every effort to preserve the validity of legislation and should only declare a law invalid as a last resort.” “97........“It is also well settled that first attempt should be made by the courts to uphold the charge provision and not to invalidate it merely because one of the possible interpretations leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law, and the other upholding, the latter should be adopted. For this, the courts have been enduring, sometimes to give restrictive or expansive meaning keeping in view the nature of legislation, may be beneficial, penal or fiscal etc. Cumulatively it is to sub-serve the object of the legislation. Old golden rule is of respecting the wisdom of legislature that they are aware of the law and would never have intended for an invalid legislation. This also keeps courts within their track and checks individual zeal of going wavered. Yet in spite of this, if the impugned legislation cannot be saved, the court shall not hesitate to strike it down. Similarly, for upholding any provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution.” 27. After going through the material made available by the parties, which is based on various journals research and after considering the various judgments and various similar provision in other statute, there is no doubt that maximum period of one-year is provided in almost all legislation and the persons having third child during that period i.e. from the date of issuing Notification, till further one year is protected. The only reason for prescribing such a period of one year is to get the knowledge of issuance of Notification to the person and to grant some appropriate leeway. The cut-off date as prescribed in the amendment provision grant exactly 9 months i.e. from issuance of Government Resolution dated 28/03/2001 till 31/12/2001. Thus the prescribed cut off date is erroneous and not based on any discernible principle. The cut-off date as prescribed in the amendment provision grant exactly 9 months i.e. from issuance of Government Resolution dated 28/03/2001 till 31/12/2001. Thus the prescribed cut off date is erroneous and not based on any discernible principle. Thus purpose of granting protection itself is defeated. 28. As learned Counsel for petitioner is not challenging constitutional validity but only seeking to construe the said period given in the Government Resolution to be one year. In our considered opinion, it appears that while stipulating cut-off date, the State has not taken into consideration the provisions in other enactments granting protection in case of third child, nor it appears that any medical expert opinion is taken. In our considered opinion, it is nothing but the error committed by the draftsman as held in Zile Singh (supra), the word “after” have to be interpreted so as to carry out legislative intent and not to make capital out of the draftsman’s folly. By not granting protection as provided by the State Government in other legislation, the petitioner is excluded for no reason, which is against the rule of equality and also to the public policy. The public policy is to provide succor to the needy and ensure general welfare and well being of the citizen. If the cut-off date is not even giving normal gestation period and the period to get notice/knowledge of the notification, the purpose of the provision would defeat. Therefore, it has to be considered as one year from the date of issuance of Notification by giving it purposive interpretation. If it is not construed in such of fashion, this Court would be committing the mistake of doing the technical justice and not a substantive justice. 29. In our considered opinion, it is necessary to give purposive interpretation to the clause. We hope and expect that the State of Maharashtra would consider this aspect in right perspective and will take steps to rectify its mistake. As such, we are of the considered opinion that by giving purposive meaning to the clause, the case of the petitioner deserves to be allowed as he is already held to be eligible except for the reason of third child to deceased employee. Accordingly, we proceed to pass the following order: ORDER: (i) The petition is allowed. As such, we are of the considered opinion that by giving purposive meaning to the clause, the case of the petitioner deserves to be allowed as he is already held to be eligible except for the reason of third child to deceased employee. Accordingly, we proceed to pass the following order: ORDER: (i) The petition is allowed. (ii) It is declared that date in Clause-E of the Government Resolution dated 28/03/2001 be construed as 28/03/2002 i.e. one year from the issuance of Government Resolution. (iii) The communication dated 21/03/2023 issued by respondent No. 3, Zilla Parishad, Chandrapur, through its Chief Executive Officer, Chandrapur, is hereby quashed set aside. (iv) It is declared that petitioner is entitled to be appointed on compassionate ground holding that the objection of third child is no more survive as third child was born within a period of one year of the issuance of notification. (v) We hereby direct the respondent No. 3-Zilla Parishad, Chandrapur, to issue an appointment order to the petitioner within a period of three months. By order dated 12/06/2023, this Court has already directed to keep one post of Junior Assistant vacant, same shall be continued till filling up the post by appointment of present petitioner. 30. Rule is made absolute in above terms. No costs.