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2018 DIGILAW 1035 (RAJ)

Jairam Meena v. State of Rajasthan

2018-04-19

DINESH CHANDRA SOMANI, M.N. BHANDARI

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JUDGMENT M.N. Bhandari, J. - By this bunch of writ petitions, a challenge is made to the Notification dated 20.06.2001, whereby, a restriction was imposed on promotion for five recruitment years if third child take birth after 01.06.2002. 2. The facts of this case show that a child took birth after 01.06.2002 and, prior to it, petitioners were having two or more children. In one case, the wife has given birth to first child but it is out of the wedlock of husband re-married with her and the husband was having two children prior to 01.06.2002. 3. It is not in dispute that the State of Rajasthan subsequently issued a Notification on 20.11.2015 to relax the rule on the birth of a child after 01.06.2002, if it is out of re-marriage even if the employee was having two or more children prior to 01.06.2002. In view of the above, an employee of the State Government, entered into re-marriage, is made entitled for promotions even if one child took birth after 01.06.2002 even if he/she was having two or more children prior to 01.06.2002. 4. The prayer in the present writ petitions is to give retrospective effect to the Notification dated 20.11.2015. The Notification dated 20.06.2001 has also been challenged. The effect of the Notification dated 20.06.2001 would not remain if the subsequent Notification dated 20.11.2015 is applied retrospectively. 5. Shir N.M. Lodha, Advocate General, contested the challenge to the Notification dated 20.06.2001 and even the prayer for retrospective application of the Notification dated 20.11.2015. He submits that the notification dated 20.11.2015 has been given effect since 01.04.2015 thus prayer for its retrospective application may not be accepted and otherwise it would create complications. All those employees, who were denied promotion under Notification dated 20.06.2001 on account of birth to third child after 01.06.2002 on re-marriage, would seek promotion causing administrative inconvenience on consequential change in the seniority after promotion apart from financial implication. The payer is accordingly to dismiss the writ petitions. It is, however, urged that if the Notification dated 20.11.2015 is applied retrospectively, an order for promotion of the petitioners may not be passed by the Court, though a direction can be for consideration of their case for promotion ignoring the bar imposed vide notification dated 20.06.2001 for those who entered into remarriage and third child took birth after 01.06.2002. It is, however, urged that if the Notification dated 20.11.2015 is applied retrospectively, an order for promotion of the petitioners may not be passed by the Court, though a direction can be for consideration of their case for promotion ignoring the bar imposed vide notification dated 20.06.2001 for those who entered into remarriage and third child took birth after 01.06.2002. The petitioners may be given only notional benefits in case of promotion. 6. Learned counsel for the petitioners have agreed to receive notional benefits but to be given consequential benefits of seniority, promotion and further benefits, if any. 7. We have considered rival submissions of the parties and perused the record. 8. Learned counsel for the parties have given reference to two Notifications which are dated 20.06.2001 and dated 20.11.2015. The notification of 20.06.2001 imposes bar on promotion for five years if Government employee is having more than two children after 01.06.2002. It is irrespective of remarriage. 9. The relevant part of Notification dated 20.06.2001 and subsequent Notification dated 20.11.2015 are quoted hereunder:- 20.6.2001 :- "3. Amendment: After the existing Sub Rule (i) of the Rule as mentioned in Column No. 4 against each of the service Rules as mentioned in Column No. 2 of the Schedule appended hereto, the following new sub rule shall be added namely:- (1A) No person shall be considered for promotion for 5 recruitment years from the date on which his promotion becomes due, if he/she has more than two children on or after 1st June, 2002. Provided that the person having more than two children shall not be deemed to be disqualified for promotion so long as the number of children he/she has on 1st June, 2002 does not increase." 20.11.2015 :- 3. Amendment.- After the existing last proviso to sub-rule (4) of rule as mentioned in column number 4 against each of the Service Rules as mentioned in column number 2 of the Schedule given below, the following new proviso shall be added, namely:- "Provided also that any person who performed remarriage which is not against any law and before such remarriage he is not disqualified for promotion under this sub-rule, he shall not be disqualified if any child is born out of single delivery from such remarriage." 10. We find that Government thought it proper to amend the rule thus issued Notification on 20.11.2015. We find that Government thought it proper to amend the rule thus issued Notification on 20.11.2015. It is to save the right of those who are having third child after 01.06.2002 on remarriage. We are of the opinion that if the Notification dated 20.11.2015 is not applied prospectively, it will cause discrimination among similarly placed employees. It is more so when birth of more than two children remains to be in reference to the date of 01.06.2002 itself. When the Government came out with Notification dated 20.11.2015, it should have been applied without discrimination. 11. The notification dated 20.11.2015 was issued to save those who entered into re-marriage after two or more children prior to 01.06.2002. The Notification dated 20.11.2015 provides for date of its application to be 01.04.2015. It is causing discrimination between similarly placed employees. There exist no justification for cut of date. If third child took birth out of re-marriage after 01.04.2015 then it is saved but if birth is prior to 01.04.2015 then it is not saved by the Notification dated 20.11.2015. Accordingly, we are of the opinion that the Notification dated 20.11.2015 should apply on all the employees. The birth to third child after 01.06.2002 on re-marriage is not to be taken as a bar though it may be bar if it is out of one and the same marriage. The date of application of the Notification dated 20.11.2015 is struck down as it is creating discrimination and, accordingly, it would apply retrospectively. 12. The consequence of the aforesaid is to treat petitioners to be entitled for promotion but a direction for promotion to higher post is not given, rather, their candidature would be considered by the Department in accordance with the Rules. If they are promoted then it would be with notional benefits as the actual benefits have been foregone by the petitioners to avoid complications, as submitted by learned Advocate General. The petitioners would, however, be entitled for consequential benefits of seniority and for further promotion, if any. The writ petitions are disposed of with the aforesaid. It is made clear that the direction given above to be applied in the case of the petitioners. 13. In case of denial of promotion or selection scale due to any other reason, the petitioners would be at liberty to challenge it separately by taking appropriate remedy. 14. The writ petitions are disposed of with the aforesaid. It is made clear that the direction given above to be applied in the case of the petitioners. 13. In case of denial of promotion or selection scale due to any other reason, the petitioners would be at liberty to challenge it separately by taking appropriate remedy. 14. A copy of this order be placed in each connected file.