Rajasthan High Court - Jaipur
Smt. Asha W/O Shri Bachchan Dhol vs The State Of Rajasthan on 21 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 593/2019
Smt. Asha W/o Shri Bachchan Dhol, Aged About 38 Years, R/o
Behind Patni Bhawan, Ward No. 42, Madanganj, Kishangarh
District Ajmer
----Petitioner
Versus
1. The State Of Rajasthan, Through The Principal Secretary,
Department Of Local Self, Government Secretary,
Rajasthan, Jaipur.
2. Director, Department Of Local Body, Government Of
Rajasthan, Near Civil Line, Jaipur
3. Commissioner, Municipal Council, Kishangarh, District
Ajmer
----Respondents
For Petitioner(s) : Mr. Vivek Choudhary
For Respondent(s) : Mr. Pradeep Kalwania, Mr. B.K.
Sharma
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 21/08/2019
1. Issue notice. Mr. B.K. Sharma, Advocate, is directed to accept notice on behalf of the respondents. Hence, service is complete.
2. With the consent of learned counsel for the parties, the matter has been heard finally.
3. The petitioner has preferred this writ petition under Article 226 of the Constitution of India with the following prayers:
"i). by an appropriate writ, order or directions the impugned termination order dated 26.8.2011 may kindly be quashed.(Downloaded on 06/06/2021 at 06:03:55 PM)
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ii) the respondents may kindly be directed to reinstate the petitioner on the post of sweeper by treating the petitioner in continuity in her service from the date of her termination from service till the date of her reinstatement with all consequential service benefit to the petitioner."
4. The brief facts as noticed by this Court are that the petitioner had participated in the recruitment process held by the Municipal Board, Ladnu for the post of Safai Karamchari vide recruitment process, 2012 in accordance with the Rajasthan Municipalities (Safai Employees Service) Rules, 2012 (hereinafter referred to as 'the Rules of 2012). The petitioner being an eligible candidate, was accordingly selected for the post of Safai Karamchari. After such selection of the petitioner, the respondent No.2 constituted a committee to verify the number of children born after 01.06.2002 to each selected candidate. The committee submitted its report wherein it was observed that the petitioner is having more than two children after 01.06.2002. Thereafter, the respondents issued appointment orders to the selected candidates but the petitioner was not given appointment on account of his name appearing in the list of persons having the third child after 01.06.2002.
5. Learned counsel for the petitioner has submitted that the post of Safai Karamchari is governed by the Rules of 2012 and as per such Rules, there is no denial of appointment on account of more than two children after 01.06.2002.
6. Learned counsel for the petitioner has further shown that the Hon'ble Division Bench has already decided the issue in D.B. Civil Special Appeal (Writ) No.703/2016 (State of Rajasthan & Anr. Vs. Smt. Indira Devi) decided on 25.10.2016, wherein the Hon'ble Division Bench has held that the candidate cannot be denied his (Downloaded on 06/06/2021 at 06:03:55 PM) (3 of 5) [CW-593/2019] appointment on the ground of having more than two children after 01.06.2002. The judgment reads as under:
"The present appeal assails order dated 05.11.2015 allowing S.B.Civil Writ Petition No.2703/2015. The learned Single Judge held that the stipulation in the advertisement that those who had a third child born after 01.06.2002 would be considered ineligible for appointment was beyond the conditions of eligibility prescribed in Rule 6 of Rajasthan Municipalities (Safai Employees Service) Rules, 2012 (hereinafter called, 'the Rules').
Learned counsel for the Appellants submits that the writ petition came to be disposed without a counter affidavit. The Respondent had not challenged the conditions in the advertisement with regard to the ineligibility. There was no dispute on facts from her own affidavit that her third child was born after 01.06.2002. If the Respondent had inadvertently been called for consideration contrary to the stipulation in the advertisement, no benefit can flow to her because the stipulation for ineligibility was inconsonance with the National Policy for Controlling Population Growth. Reliance was placed on 2003 (8) SCC 369 (Javed Vs. State of Haryana).
Conversely, counsel for the Respondent submitted that she was selected on 17.12.2013 and letter of appointment issued. Joining was denied because complaints had been received. It was alleged that her mother-in-law had already been selected as a Safai Employee. The complaint was examined and found to be incorrect. She represented afresh after an order in S.B.Civil Writ Petition No.7196 of 2014. Thereafter the Appellants have taken a fresh ground with regard to her ineligibility restricting the operation of Rule 6 without any amendment of the Rules.
We have considered the submissions on behalf of the parties.
The advertisement was never placed before the learned Single Judge by the parties. Despite more than one adjournment no counter affidavit was filed by the Appellants. A copy of the advertisement has however been placed before us in appeal.
Rule 6 prescribes the eligibility, qualifications fulfillment of which entitles a candidate to be considered. There is no statutory incorporation in Rule 6 with regard to any ineligibility of a candidate if a third child had been born after 01.06.2002. If the (Downloaded on 06/06/2021 at 06:03:55 PM) (4 of 5) [CW-593/2019] eligibility is prescribed in statutory Rules, those who do not fulfill the same are ineligible. If a candidate fulfills the eligibility requirements in Rule 6, she cannot be declared ineligible by incorporation of any clause in the advertisement beyond the statutory requirement of Rule 6. There is no error in the finding of the learned Single Judge that such a condition could not be incorporated in the advertisement beyond statutory provisions. It is not the case of the Appellants that even any executive order had been issued to that effect before the ineligibility clause was incorporated in the advertisement. It is not open for the Appellants to urge that any condition incorporated in the advertisement contrary to the statutory requirement, would still bind the applicant unless there was a challenge to the advertisement. The fact that the candidate may have applied notwithstanding the stipulations in the advertisement cannot confer legality on the condition prescribed beyond the Rules.
We therefore find no infirmity in the order of learned Single Judge. The Respondent is now required to be considered for appointment in accordance with the offer dated 17.12.2013.
Reliance on Javed (supra) is misconceived as the challenge related to the vires of the provisions of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994 incorporating a statutory requirement with regard to those having more than two children and which is not the case presently.
The appeal is dismissed."
7. Learned counsel for the respondents, who has already appeared in the similar controversy in the aforementioned precedent law, is not in a position to refute the aforementioned precedent law.
8. This Court, in light of the aforementioned position of law, disposes of the present writ petition with the direction to the respondents to consider the case of the petitioner for appointment on the post of Safai Karamchari while not considering third child after 01.06.2002 as a disqualification. Such consideration shall be made within a period of 30 days from today in accordance with (Downloaded on 06/06/2021 at 06:03:55 PM) (5 of 5) [CW-593/2019] these directions as well as in consonance with the precedent law laid down by the Division Bench of this Hon'ble Court in the matter of State of Rajasthan & Anr. Vs. Smt. Indira Devi (supra).
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