Hari Ram Meena vs State Of Rajasthan ...
2023 Latest Caselaw 3086 Raj

[2023/RJJD/010178]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4234/2021

Hari Ram Meena S/o Bhagwana Ram Meena, Aged About 38 Years, R/o 11, Pawana Ahir, Kotputali, District Jaipur, Presently Residing At Village And Post Surani, Tehsil Balesar, District Jodhpur.

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of Medical And Health Services, Government Secretariat, Jaipur, Rajasthan.

2. The Addl. Director (Admn.), Medical And Health Services, Swasthya Bhawan, Rajasthan, Jaipur.

3. The Addl. Director (Training), Medical And Health Services, Swasthya Bhawan, Rajasthan, Jaipur.

----Respondents

For Petitioner(s) : Mr. Uma Shankar Dhakad for Mr. Hanuman Singh Choudhary For Respondent(s) : Mr. K.S. Rajpurohit, AAG through V.C.

with Mr. Rajat Arora and Mr. Lucky Rajpurohit

JUSTICE DINESH MEHTA

Order

17/04/2023

1. By way of the instant writ petition, the petitioner has

questioned the rejection of his candidature on account of having

fathered a 3rd child.

2. The petitioner has approached this Court with a specific case

that he had given his first child (Jyoti Meena) in adoption to one

Mahaveer (his brother-in-law) by way of adoption-deed dated

14.01.2004.

3. Learned counsel for the petitioner submitted that since,

petitioner's first child Jyoti Meena had been given in adoption,

there is no disqualification, as alleged by the respondents.

[2023/RJJD/010178] (2 of 6) [CW-4234/2021]

4. It is argued by learned counsel for the petitioner that the

petitioner had only two children at the time of submission of

application form for recruitment of year 2018.

5. Mr. K.S. Rajpurohit, learned Additional Advocate General

submitted that the adoption-deed dated 14.01.2004, which has

already been filed by the petitioner is an unregistered adoption

deed and hence, it cannot be taken into consideration, while

maintaining that petitioner's candidature has rightly been

rejected.

6. In rejoinder, learned counsel for the petitioner argued that

the petitioner hails from a Scheduled Tribe community and the

adoption in question was customary and hence, the registration is

not required.

7. Heard learned counsel for the parties.

8. The petitioner had applied for the post of Nurse Grade-II in

pursuance of advertisement dated 30.05.2018.

9. The appointment and other service conditions thereto are

governed by the Rajasthan Medical and Health Subordinate

Service Rules, 1965 (hereinafter referred to as "The Rules of

1965").

10. The relevant Rule 21(3) of the Rules of 1965 reads thus:-

"21. Disqualification for appointment.- (1) ... ... ... ... ...

(2) ... ... ... ... ...

(3) No candidate shall be eligible for appointment to the service who has more than two children on or after 1.6.2002:

Provided that the candidate having more than two children shall not be deemed to be disqualified for

[2023/RJJD/010178] (3 of 6) [CW-4234/2021]

appointment so long as the number of children he/ she on 1.6.2002 does not increase:

Provided further that where a candidate has only one child from earlier delivery but more than one child are born out of a single subsequent delivery, the children so born shall be deemed to be one entity while counting the total number of children. Provided also that the provisions of this sub-rule shall not be applicable to the appointment of a widow to be made under the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996."

11. The argument advanced by the learned counsel for the

petitioner appears to be attractive at the first flush, but if the

same is accepted, it would defeat the whole purpose of the

amendment brought in Rule 21 of the Rules of 1965 by the State

Government.

12. Dealing with identical and analogues situation, Hon'ble the

Supreme Court in the case of Javed and Ors. Vs. State of Haryana

and Ors. : AIR 2003 SC 3057 has held thus:-

62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in

[2023/RJJD/010178] (4 of 6) [CW-4234/2021]

view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out.

63. It was also submitted that the impugned disqualification would hit the women worst, inasmuch as in the Indian society they have no independence and they almost helplessly bear a third child if their husbands want them to do so. This contention need not detain us any longer. A male who compels his wife to bear a third child would disqualify not only his wife but himself as well. We do not think that with the awareness which is arising in Indian women folk, they are so helpless as to be compelled to bear a third child even though they do not wish to do so. At the end, suffice it to say that if the legislature chooses to carve out an exception in favour of females it is free to do so but merely because women are not excepted from the operation of the disqualification it does not render it unconstitutional.

64. Hypothetical examples were tried to be floated across the bar by submitting that there may be cases where triplets are born or twins are born on the second pregnancy and consequently both of the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Such are not normal cases and the validity of the law cannot be tested by applying it to abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. One swallow does not make a summer; a single instance or indicator of something is not necessarily significant.

[2023/RJJD/010178] (5 of 6) [CW-4234/2021]

Conclusion

65. The challenge to the constitutional validity of Section 175(1)(q) and 177(1) fails on all the counts. Both the provisions are held, intra vires the Constitution. The provisions are salutary and in public interest. All the petitions which challenge the constitutional validity of the abovesaid provisions are held liable to be dismissed.

66. Certain consequential orders would be needed. The matters in this batch of hundreds of petitions can broadly be divided into a few categories. There are writ petitions under Article 32 of the Constitution directly filed in this Court wherein the only question arising for decision is the constitutional validity of the impugned provisions of the Haryana Act. There were many a writ petitions filed in the High Court of Punjab & Haryana under Articles 226/227 of the Constitution which have been dismissed and appeals by special leave have been filed in this Court against the decisions of the High Court. The writ petitions, whether in this Court or in the High Court, were filed at different stages of the proceedings. In some of the matters the High Court had refused to stay by interim order the disqualification or the proceedings relating to disqualification pending before the Director under Section 177(2) of the Act. With the decision in these writ petitions and the appeals arising out of SLPs the proceedings shall stand revived at the stage at which they were, excepting in those matters where they stand already concluded. The proceedings under Section 177(2) of the Act before the Director or the hearing in the appeals as the case may be shall now be concluded. In such of the cases where the persons proceeded against have not filed their replies or have not appealed against

[2023/RJJD/010178] (6 of 6) [CW-4234/2021]

the decision of the Director in view of the interim order of this Court or the High Court having been secured by them they would be entitled to file reply or appeal, as the case may be, within 15 days from the date of this judgment if the time had not already expired before their initiating proceedings in the High Court or this Court. Such of the cases where defence in the proceedings under Section 177(2) of the Act was raised on the ground that the disqualification was not attracted on account of a child or more having been given in adoption, need not be re-opened as we have held that such a defence is not available.

67. Subject to the abovesaid directions all the writ petitions and civil appeals arising out of SLPs are dismissed."

13. Similar is the view taken by this Court in its judgment dated

04.11.2016, rendered in Meena Bohra Vs. State of Raj. & Ors. :

Civil Writ (CW) No.5945/2014 [following the judgment of Javed's

case (supra)].

14. In view of the above noted judgment, this Court does not

find any merit and substance in the present writ petition. The

same is, therefore, dismissed.

15. Stay petition also stands dismissed.

(DINESH MEHTA),J 14-Ramesh/-

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