Dr Rajveer Sharma vs State Of Raj And Ors
2021 Latest Caselaw 241 Raj/2

                                             (1 of 5)                  [CW-134/2018]


       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                  S.B. Civil Writ Petition No. 134/2018

Dr. Rajveer Sharma S/o Shri Ramgopal Sharma, Resident Of
Rajendra Nagar Colony, Near Jharwali Mata, Badi Road, Dholpur
Rajasthan
                                                                      ----Petitioner
                                     Versus
1.      State Of Rajasthan Through Principal Secretary, Ayurveda
        And Indian Medical Department, Government Secretariat,
        Jaipur.
2.      Joint Secretary, Ayurveda Department, Secretariat, Jaipur.
3.      Director, Directorate, Ayurveda Department, Ashok Marg,
        Savitri Chauraha, Ajmer.
4.      Additional Director, Directorate, Ayurveda Department,
        Ashok Marg, Savitri Chauraha, Ajmer.
5.      District Ayurveda Officer, Dholpur.
                                                                   ----Respondents

For Petitioner(s)          :     Mr. Tanveer Ahamad
For Respondent(s)          :     Mr. Hari Kishan Saini, Dy.GC

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

JUDGMENT

13/01/2021

REPORTABLE

1. A short point involved in the present petition is whether the

third child born to the petitioner on account of failure of the

ligation operation can be said to come within the ambit of

memorandum dated 01.06.2017 to deny the ACP to the petitioner

for three years.

2. The petitioner submits that his wife had undergone ligation

operation on 18.09.2011 however the said operation was

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unsuccessful and she gave birth to a girl child on 16.01.2013. The

petitioner already has two male children born on 21 st August, 2000

and 10th September 2001 and thus he has three children, out of

which one child was born after 1.6.2002. In view thereof, the

State Authorities denied the petitioner to grant ACP.

3. Learned counsel submits that the petitioner submitted

documentary proof to the authorities to show that the third child

cannot be said to have been born with deliberate intentions and

was born on account of failure of operation which cannot be

treated to come within the ambit of the Memorandum dated

1.6.2017. The respondents did not accept the certificate issued in

favour of the petitioner and passed an order treating it to be

doubtful, ambiguous and suspicious resulting in filing the present

petition before this court.

4. Learned counsel submits that upon issuance of letter dated

13.7.2017, the petitioner submitted a certificate issued from a

Doctor who had conducted the concerned Tubal Ligation operation

on applying and also produced relevant proof of registration

relating to the admission of petitioner for the concerned operation.

The same has not been considered. Learned counsel submits that

the petitioner's case cannot be said to be one where a third child

is born out of willingness of the parents. Even otherwise, learned

counsel submits that a third child was born after a period of 12

years of the earlier child and in such circumstances, the

submission of the petitioner cannot be doubted.

5. Per contra, learned counsel appearing for the State submits

that the original certificate which was issued did not bear any

registration number or date and therefore, it could not have been

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taken to be correct and the authorities rightly doubted the veracity

of the said document.

6. I have considered the submissions.

7. Perusal of the certificate shows that the petitioner's wife had

undergone a ligation operation on 18.9.2011 but the certificate

does not mention date or signatures although there are signatures

of several doctors on the said certificate. Again on 28.8.2017, the

concerned operating doctor has also certified of having conducted

operation of the petitioner's wife and the registration of the

petitioner's wife also shows that she was admitted and operated

on 18.9.2011 and discharged on 19.9.2011.

8. In these circumstances, it cannot be said that the certificate

is ambiguous or suspicious and the authorities ought to have

taken a pragmatic view and considering that, now the case ought

to have been examined.

9. The Memorandum dated 1.6.2017 reads as under:-

"The existing item (iii) of sub-para (7) of para 2 of finance Department Memorandum of even number dated 31.12.2009 as amended vide Memorandum of even number dated 06.10.2015 shall be substituted by the following, namely:-

"The appointing authority shall also obtain an affidavit from the employee with reference to having only two children on or after 01.06.2002 prior to granting ACP. An employee who has more than 2 children or after 01.06.2002 shall not be granted next ACP for 3 years from the date on which his/her ACP becomes due and it would have consequential effect on the subsequent financial upgradation which would also get deferred to the extent of delay in grant of previous financial

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upgradation. The employee having more than 2 children shall not be deemed to have been disqualified, so long as the number of children he/she has on 01.06.2002 does not increase."

This order shall come into force with immediate effect."

10. From perusal of the above, it is apparent that an employee

who has more than two children on or after 1.6.2002 shall not be

granted next ACP for three years from the date on which his/ her

ACP becomes due and it would have consequential effect on the

subsequent financial upgradation. The import of the aforesaid

page is that any employee who gave birth to child after 1.6.2002

and already has two children prior thereto would be denied ACP.

The circular does not take into consideration the circumstances

which may have arisen in the birth of a third child.

11. In the present case, the child was born on account of the

failure of the ligation operation. Getting an operation done shows

the intention of the couple not to have a third child. However, on

account of failure, if a child is born, they cannot be penalized for

the same. These are exceptions to the rule and have to be taken

into consideration. These exceptions need not be explicitly

mentioned in the rule. However, these are certain things which are

inherent in the rule. Further, the very purpose of the rule is to

deter Government servants from having a third child. However, if

a third child is born, without there being any deliberate intent, the

circular would not come in way to deprive the concerned individual

of the benefits which are available under the service rules.

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12. Thus, in the opinion of this court, any child born after

1.6.2002 to a couple already having two children cannot be denied

ACP by applying the memorandum by a blanket order. The

circumstances need to be examined and exceptions to be taken

into consideration. One of the such exceptions is the present one.

In view of the above, this court does not accept the contention of

the respondents.

13. The writ petition is accordingly allowed and it is directed to

the respondents to grant ACP to the petitioner on completion of 20

years of service from the date it became due without applying the

circular dated 1.6.2017 and arrears of salary shall also be released

accordingly. No costs.

(SANJEEV PRAKASH SHARMA),J

SAURABH YADAV /670/106

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