Jharkhand High Court
Sanjeev Kumar Dey vs The State Of Jharkhand on 24 April, 2025
Author: Rajesh Shankar
Bench: Rajesh Shankar
2025:JHHC:12105-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1173 of 2025
Sanjeev Kumar Dey, aged about 52 years, Son of Nilmoni Kant Dey,
Resident of Kasim Bazar, Rajmahal, P.O. & P.S.- Sahibganj, District-
Sahibganj, Jharkhand-816108 .. ... ... Petitioner
Versus
1. The State of Jharkhand, through its Chief Secretary, Government of
Jharkhand, having office at Project Bhawan, P.O. & P.S. Dhurwa,
District- Ranchi-834004
2. The Secretary, Department of Urban Development, Government of
Jharkhand, having office at Project Bhawan, P.O. & P.S.- Dhurwa,
District- Ranchi-834004 ... ... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Amritansh Vats, Advocate
For the Respondents: Mr. Sachin Kumar, AAG-II
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Reserved on: 16.04.2025 Pronounced on: 24 / 4 /2025
M.S. Ramachandra Rao, C.J.(Oral)
1) This Writ petition has been filed by the petitioner challenging the
Rule 3.14 of Jharkhand Nagarpalika Nirvachit Pratinidhi Niyamavali,
2020 issued vide Notification No. 386 dt. 27.8.2020.
2) Under the said provision, 'an elected public representative of urban
local body can be declared ineligible and his membership for the elected
post can be terminated, if he has more than two living children'. There is a
proviso to the said provision which states that' on or after expiry of a
period of one year from the coming into force of Jharkhand Nagarpalika
Act, 2011, a person shall not be disqualified if he has more than two
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children'. Thus the exemption from the disqualification is given only for
a period of one year from the coming into force of the said statute.
3) Petitioner contends that he is a social worker of Sahibganj district
and was willing to contest upcoming Municipal election soon to be held
by the State Government.
4) According to him, the Jharkhand Municipal Act, 2011 enumerates
the disqualification for contesting Municipal election but there was no
provision therein, disqualifying a candidate for having more than two
children.
5) Petitioner contends that the Notification dt. 27.8.2020 was issued by
the State Government invoking the power conferred on it under section 18
of the Jharkhand Municipal Act and the instant disqualification was added.
6) Petitioner contends that he has three children all born before 2020
and because of the Rule 3.14, he would not be able to contest the election
as the said Rule introduced under the 2020 notification bars individuals
having more than two children, from contesting the municipal election.
7) According to the petitioner, this Rule has retrospective effect since it
states that on the date of the Notification i.e. 27.8.2020 if any person has
more than two children, he would be declared ineligible for contesting the
Municipal election.
8) Petitioner alleges that the Rule is arbitrary, illegal and is ultra vires
because only the legislature can make retrospective legislation, but
without such a power in the Jharkhand Municipal Act, 2011, in exercise of
Rule making power, this provision has been made with retrospective
effect.
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9) He also contends that it violates his fundamental right guaranteed
under Article 14 of the Constitution of India. It is contended that
disqualification must be part of the statute so that it can be discussed and
debated in the Legislature and in exercise of Rule making power, such
action cannot be taken.
10) We have noted the contentions of the counsel for the petitioner.
11) Admittedly, under Section 590 of the Jharkhand Municipal Act,
2011, the State Government is empowered to make Rules for carrying out
of the purposes of the Act by way of Notification. It appears that in
exercise of the power conferred under the said rule making power, the
impugned Notification has been issued prescribing disqualification for
people having more than two living children.
12) But clause (n) of Section 18 (1) of the Jharkhand Municipal Act,
2011 also disqualifies a person for election or after election for holding
the office as Councilor if he has more than two living children. It is
identical to Rule 3.14 enacted under the impugned notification.
13) Therefore, the petitioner is not right in contending that there is no
such disqualification in the Jharkhand Municipal Act, 2011 and the same
has been introduced only by way of Notification issued on 27.8.2020.
14) Moreover, the Supreme Court in the judgment rendered by it in
Javed & Ors V. State of Haryana & Ors1 had upheld an identical
amendment in section 175 (1) (q) of the Haryana Panchayati Raj Act,
1994. The Supreme Court held in para 4 which reads as under:
(2003) 8 SCC 369
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"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 the
commencement of the Act. A person having more than two
children upto 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 any
one 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 born one year after the
commencement of the Act, to a figure more than two."
15) The Supreme Court held that persons having more than two
living children are clearly distinguishable from persons having not more
than two living children, that the two constitute two different classes, and
the classification is founded on an intelligible differentia clearly
distinguishing one from the other. According to the Supreme Court, one of
the objects sought to be achieved by the legislation is popularizing the
family welfare/family planning program, and the disqualification enacted
by the provision seeks to achieve the object by creating a disincentive, and
therefore, the classification does not suffer from any arbitrariness. It held
that the number of children i.e. two is based on legislative wisdom, that it
is a policy decision, which is not open to judicial scrutiny.
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16) In view of the above settled legal position, we see no merit in this
writ petition. It is accordingly dismissed. No costs.
17) Pending Application, if any, stands disposed of.
(M.S. Ramachandra Rao, C.J.)
(Rajesh Shankar, J.)
N.A.F.R.
Sharda/-
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