Gajender Bishnoi vs The Rajasthan Public Service ...
2023 Latest Caselaw 7958 Raj

[2023:RJ-JD:33074] (1 of 11) [CW-5917/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5917/2021

Gajender Bishnoi S/o Goverdhan Bishnoi, Aged About 38 Years, VPO Kakra, Tehsil Nokha, District Bikaner, Rajasthan.

----Petitioner Versus

1. The Rajasthan Public Service Commission., Through its Secretary, Ajmer, Rajasthan.

2. The Joint Secretary, Rajasthan Service Commission, Ajmer, Rajasthan.

                                                                       ----Respondents


     For Petitioner(s)           :    Mr. Dalip Singh Rajvi
     For Respondent(s)           :    Mr. Vikram Singh for Mr. Tarun Joshi
                                      Ms. Akshiti Singhvi for Mr. Sandeep
                                      Shah, AAG



                           JUSTICE DINESH MEHTA

                                           Order

Reportable                                                               05/10/2023

1. The present writ petition was preferred by the petitioner

apprehending that his candidature will be rejected by the

respondents on account of having three children.

2. Considering the petitioner's submissions on 09.04.2021, this

Court had passed the following order:

"1. Learned counsel for the petitioner submits that

one of the petitioner's daughter, namely, Renuka

passed away on 15.02.2018 and thus, on the date of

advertisement, i.e., 02.04.2018, he had only two

surviving children. As such, disqualification arising on

account of having more than two children on or after

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01.06.2002, does not create any impediment in

petitioner's way of getting appointment.

2. Hence, matter requires consideration.

3. Issue notice. Issue notice of stay application also,

returnable within six weeks.

4. Meanwhile, petitioner shall be provisionally

permitted to appear for interview whereafter, his

name shall be reflected at appropriate place in the

merit list/select list.

5. In case his name finds place in the select list, his

name shall not be recommended to the State

Government for appointment, without leave of the

Court."

3. Mr. Dalip Singh Rajvi, learned counsel for the petitioner

apprised the Court about the backdrop facts and submitted that

an Advertisement for Rajasthan Administrative Services Combined

Competitive Examination - 2018 was issued on 02.04.2018, in

which, the petitioner submitted his application form as an 'Ex-

serviceman' on 02.05.2018. He pointed out that in the column

meant for 'Number of Living Child (Born before 01/06/2002)/ जीवित

बालक की संख्या 01/06/2002 से पहले व बाद में पैदा हुआ" the petitioner had

recorded "02" children, which clearly showed that as on date of

submitting application form, he has two living children.

4. The petitioner took part in recruitment process and was

found meritorious. However, on perusal of the record, the

respondents found that the petitioner has fathered three girls

namely Nisha Bishnoi; Aditi Bishnoi and Renuka Bishnoi, who were

born on 6th May, 2006; 8th August, 2008 and 4th April 2013,

[2023:RJ-JD:33074] (3 of 11) [CW-5917/2021]

respectively. As the luck would have it, petitioner's third girl child

namely Renuka passed away on 15.02.2018.

5. Mr. Rajvi, learned counsel for the petitioner while asserting

that as per the requirement of the Advertisement, the petitioner is

fully eligible and qualified to be appointed, as on the date of

submitting the application form, he had only two surviving

children, argued that his candidature could not have been

rejected. He submitted that the fact that petitioner's third child

namely Renuka had passed away on 15.02.2018, was brought to

the notice of the Commission (RPSC), yet they have adopted a

hyper-technical approach and rejected petitioner's candidature by

way of the order dated 18.03.2021.

6. Learned counsel argued that it is settled proposition of law

that the eligibility of a candidate has to be seen on the date of

submitting the application form, unless the Rules provide

otherwise. It was vehemently argued by Mr. Rajvi that the State

cannot apply statutory provisions in a pedantic manner and

deprive the petitioner of his right to get employment, when

admittedly, on the date of submitting his application form no

disqualification was attracted.

7. Learned counsel further argued that considering the object of

population control sought to be achieved by the amendment

brought in the Rules, the number of children to be reckoned for

the disqualification is, the number of 'living children' a candidate

has, as opposed to number of children born to him/her. In support

of his contention, learned counsel for the petitioner relied upon

the judgment dated 13.08.2012 rendered by the Division Bench of

this Court in the case of Bharatraj @ Bharatram vs. Additional

[2023:RJ-JD:33074] (4 of 11) [CW-5917/2021]

Civil Judge (S.D.), Baran, District Baran & Ors. : D.B.

Special Appeal (W) No. 354/2012 (particularly Para Nos. 9, 13

and 16) and argued that the Division Bench while deciding the

issue, whether child given in adoption can be counted for

disqualification, has repelled the contention of the petitioner

therein by using the expression "living children". He submitted

that in the light of the observation made by the Division Bench,

the number of 'living children' is relevant for the purpose of the

Rules of 1996 and not the number of children given birth by a

candidate and since the petitioner had two living daughters on the

date of submitting application from, he cannot be denied

appointment.

8. Ms. Akshiti Singhvi, learned counsel appearing for the

respondent - State submitted that the petitioner's candidature has

rightly been rejected by the respondents because the amendment

was brought in all service rules by way of Notification dated

28.06.2001 with a view to curb the menace of increasing

population. She submitted that the language of the provision is

very clear and categorical and a reading thereof reveals that the

moment, a third child is born to a person, he/she incurs a

disqualification. She argued that the subsequent event of any one

of the three children born to a candidate having passed away,

does not wipe the basic disqualification which the petitioner had

incurred, when his third child was born on 04.04.2013.

9. Learned counsel invited Court's attention towards the

judgment of Hon'ble the Supreme Court in the case of Javed &

Ors. vs. State of Haryana & Ors. : (2003) 8 SCC 369,

particularly Para No. 62 thereof, to contend that the relevant event

[2023:RJ-JD:33074] (5 of 11) [CW-5917/2021]

is, birth of a child and not the number of living children. While

accepting that the facts involved in the case of Javed (supra) were

different and makes incidental reference of cases dealing with

adoption, she invited Court's attention towards the decision

rendered by the Division Bench of Gujarat High Court in the case

of Mahesh Kumar Ramsinh Parmar Vs. State of Gujarat &

Ors., (Special Civil application no. 4625/2016) decided on

07.04.2016, and submitted that the Division Bench in similar facts

and circumstances has held that birth of a third child itself attracts

disqualification and subsequent event of a child passing away is of

no relevance.

10. Learned counsel argued that may be there is a confusion in

the terms of the Advertisement (Living child born before

01.06.2002), but in the case of confusion, one has to resort to

statutory provisions, while highlighting that even in the

advertisement, it was stipulated that the candidates should go

through the relevant rules carefully. She argued that the terms of

the advertisement have to concede to the statutory provisions (no

candidate shall eligible for appointment to the service who has

more than two children on or after 01.06.2002) and when the Rule

is unambiguous, on the basis whereof the respondents have

rejected the petitioner's candidature, no fault can be found in the

action of the Commission.

11. Speaking for the State (Department of Personnel), Ms.

Akshiti Singhvi on instructions submitted that according to the

State, the position of child given in adoption is akin to the

situation when a child passes away and submitted that the

petitioner is ineligible for appointment.

[2023:RJ-JD:33074] (6 of 11) [CW-5917/2021]

12. Heard learned counsel for the parties and perused the record

and judgments cited at the bar.

13. The facts of the present case has posed a very pertinent

question, when a statutory provision enacted by the State for the

avowed object of controlling population is staring in the face of a

citizen's fundamental rights.

14. In the present case, the facts are not at all in dispute. The

only question which is to be determined by this Court is, as to

whether the birth of petitioner's third child namely Renuka, who

has admittedly passed away before issuance of the advertisement,

should be taken as a ground for incurring disqualification per se,

as suggested by the respondents or a purposive and harmonious

interpretation is required to be given to the rule in the given fact

situation.

15. At a first flush, petitioner's argument appears to be

attractive that on the date of submitting application form, he did

not have three living children and thus, he is eligible for

appointment. As rightly pointed out by Mr. Rajvi, that all the cases

including the judgment in the case of Javed (supra), deals with the

situation when one of the children was given in adoption and

dealing with such situation, the Courts have held that the factum

of giving a child in adoption does not take away the

disqualification, whereas in the instant case, the petitioner's third

daughter was not given away in adoption, but was snatched by

the destiny. And there was no intended or conscious act of the

petitioner, which is there in each case of adoption.

16. The Apex Court in Javed (supra) while highlighting the object

of population control sought to be achieved by the legislation,

[2023:RJ-JD:33074] (7 of 11) [CW-5917/2021]

incidentally dealt with the effect of giving a child in adoption on

disqualification of a candidate. It was observed thus:

"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

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.

17. A careful reading of above quoted observation particularly

the underlined portion shows that the Apex Court has taken the

view considering the situation when more than two children are

living and one such child is given in adoption. The position which

is available in the instant case viz. death of a child was not dealt

with by the Supreme Court.

18. It is true that the situation of 'giving a child in adoption'

cannot be equated to 'death of a child'. While giving a child in

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adoption is a conscious choice on the part of the parents, but

death is a phenomenon over which none has control. In order to

shun the disqualification, a person can give one of his child in

adoption, but in no circumstances, a person can think of losing his

child in order to maintain the other two.

19. But then, interpretation of statutory provision cannot be

changed in order to deal with a peculiar fact-situation.

20. Hence, if the provisions as they exist are taken into

consideration, the use of words "no candidates shall be eligible for

appointment to the service, who has more than two children on or

before 01.06.2002", would imply that the moment a third child is

born and living, a candidate incurs disqualification. The

subsequent event of passing away of one of the children does not

eclipse such disqualification.

21. It is to be noted that the Nagpur Bench of the Bombay High

Court, in the case of Hitesh Vs. Returning Officer,

Grampanchayat Shelubazar and Ors. : Writ Petition No.

3314/2022, decided on 17.04.2023, while interpreting a similar

provision of the Maharashtra Village Panchayat Act held thus:-

"12 . The full bench of this Court in the case of Subhash Gavit (Supra) had an occasion to consider the questions whether the clause of disqualification can be attracted, considering the number of birth of the children irrespective of whether any of the children have died or whether a child who has died and is not in existence on the date of the filling of the nomination papers, will have to be excluded from the number of children procreated by the candidate and a question whether such demise of the child can be excluded by interpreting the word 'had' appearing in the proviso so as to be read as 'has' appearing in Sections 16(1)(k) of the Maharashtra Zilla

[2023:RJ-JD:33074] (9 of 11) [CW-5917/2021]

Parishads and Panchayat Samitis Act, 1961. While answering the said questions the full bench of this Court has held thus:

"52. In our view, a provision should be interpreted in a way, which could be given an appropriate meaning and without creating an exclusion or disqualification by inference or implication. So also, a sentence conveying 'present' and 'present continuous' tense cannot be converted into a past tense. As such, the words 'has' and 'having' lend a 'present' and 'present continuous' meaning and cannot be interpreted to include even a dead child or a still born child. If a dead child is to be included, the words, 'has children' will have to be read as 'had children'.

53. We, therefore, hold that the demise of a child can be excluded while computing the number of living children in these three Acts and the number of children that a candidate has on the date of the filing of the nomination paper, would be reckoned. We answer issue Nos. 2 and 3 accordingly."

13. In the teeth of above referred answers, I revert back to the facts of the present case. Admittedly, in the present matter the nomination paper was submitted by the petitioner on 29.12.2020 and on the date of nomination, the petitioner had two children. The first child of the petitioner was died on 07.08.2017, thus on the date of nomination paper undisputedly, the petitioner had two children. In the circumstances, the disqualification of the petitioner under Section 14(1) (J-

1) of the Act of 1959 would not attract against the petitioner."

22. But a careful reading of the facts involved in the case of

Hitesh (supra) reveals that the facts in the present case are

distinguishable. In the case of Hitesh (supra), the first child born

[2023:RJ-JD:33074] (10 of 11) [CW-5917/2021]

on 16.05.2017 to the petitioner therein died on 07.08.2017 and

thereafter, two children were born to him. The petitioner in the

case of Hitesh (supra) did not have three living children at a time,

under such circumstances, the Nagpur Bench held that on the

relevant date, the petitioner has two children and, therefore, no

disqualification would attract.

23. In the present case, however, the petitioner already had two

living children whereafter, he fathered a third child. The child born

had lived for four years and had it not been the destiny taking

away the child's life, the petitioner would have had three living

children on a given point of time. In such facts and situation, the

death of a child cannot be excluded to compute the number of the

children a candidate has.

24. Adverting to the petitioner's argument that eligibility of a

candidate has to be seen on the date of submitting the application

form, suffice it to say that the relevant rule does not provide for

eligibility, it only speaks of 'disqualification' in the event number of

children exceeds 2 after the date 01.06.2002. The disqualification

once incurred, is a disqualification for all times to come unless the

relevant provision puts an upper cap on continuation for such

disqualification.

25. Hence, the petitioner's candidature has rightly been rejected

by the respondents. But as a parting remark, this Court would

hasten to add that the facts of the present case has brought to

fore an unprecedented situation and posed a question which needs

to be appropriately addressed by the State. Because, if a citizen

and an unemployed person has once incurred the disqualification

on account of child birth and for some reason or the other the

[2023:RJ-JD:33074] (11 of 11) [CW-5917/2021]

cause of such disqualification ceases to exist, depriving such

person from employment does not behove a welfare Government.

26. Though the writ petition is dismissed, the petitioner is

permitted to file a representation before the Secretary,

Department of Personnel with a copy of order instant, who shall

examine the issue objectively and explore the possibility of dealing

with the situation in which the petitioner has fallen.

27. Needful exercise be done within a period of eight weeks of

receiving the representation.

28. By 31.12.2023, the RPSC shall not recommend any other

person's name for the seat which has been kept vacant and in

case the name has been recommended, the State shall not give

appointment, if not already given.

29. It is made clear that aforesaid direction to decide the

representation has been issued only with a view to ensure

expeditious redressal of petitioner's grievance. The same may not

be construed to be a mandate to decide the representation in a

particular manner.

30. Second stay application also stands dismissed, accordingly.

(DINESH MEHTA),J 161-Mak/-

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