Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 902 (RAJ)

Nathu Lal v. State of Rajasthan

2019-03-26

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2019
JUDGMENT : 1. This writ petition has been filed by Nathu Lal, who is serving the respondents in the Home Department on the post of Constable. He was appointed on the post of Constable vide order dated 29.03.1995. 2. Learned counsel for the petitioner submitted that the petitioner had his first child Durgesh Kumar from wedlock with his wife Smt. Shanti on 11.07.1997 and his second son Pradeep Kumar was born on 18.04.1999. Wife of the petitioner, Smt. Shanti then underwent sterilization operation on 13.12.1999 at Government Hospital, Dungarpur. Certificate issued by the Medical Officer, Government Hospital Dungarpur dated 13.12.1999 has been placed on record as Annexure-1. 3. Contention of learned counsel for the petitioner is that the petitioner decided to restrict his family up to two children. It is only thereafter that the State Government issued notification on 20.06.2001 thereby introducing an omnibus amendment in the State Service Rules by promulgation of Rajasthan Various Service Rules by amending Rules of 2001. Amendment was also introduced in the Rajasthan Police and Subordinate Service Rules, 1989. By the aforesaid amendment, it was provided that no candidate shall be eligible for appointment to the service, who has more than two children on or after 01.06.2002. As regards existing employees, it was provided that no person shall be considered for promotion for five recruitment years from the date on which his/her promotion becomes due, if he/she has more than two children on or after 01.06.2002. This was further subjected to a proviso which stipulated 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 01.06.2002 does not increase. Further explanation was provided that where a Government Servant has only one child from the 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. Contention of learned counsel for the petitioner is that even though the petitioner did not intend to have any third child but to his shock and surprise, despite his wife having been subjected to sterilization operation, she became pregnant and ultimately delivered a girl child Dhara Kumari on 31.03.2003. Contention of learned counsel for the petitioner is that even though the petitioner did not intend to have any third child but to his shock and surprise, despite his wife having been subjected to sterilization operation, she became pregnant and ultimately delivered a girl child Dhara Kumari on 31.03.2003. The petitioner was granted first selection grade on completion of nine years service in the year 2004 but unfortunately on account of third child after 01.06.2002, he was denied benefit of second selection scale which became due in the year 2013. The petitioner submitted a detailed affidavit before the competent authority on 16.11.2015 giving all the aforementioned details and the circumstances in which third child was born to his wife. When the desired relief was not granted to the petitioner, he approached this Court by filing Writ Petition No. 11438/2015 at Principal Seat at Jodhpur which was decided vide judgment dated 26.10.2015 requiring the petitioner to submit representation to the respondents and directing them to decide the same. The petitioner accordingly submitted representation. However, the respondents vide order dated 09.02.2016 rejected that representation. Subsequently, when promotion of the petitioner on the post of Head Constable (General) became due, the respondents denied him promotion for five years for the vacancies of the year 2013-14 to 2017-18 again for the same reason. 4. Reliance is placed on the judgment of this Court in Dr. Poonam Parakh Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 8528/2009) and Dr. Manish Parakh Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 2744/2009) decided vide common judgment dated 27.07.2011 in which reference has been made to another amendment introduced by the respondents to the aforesaid provision by providing that while counting the total number of children of a candidate, the child born from earlier delivery and having disability shall not be counted. But the aforesaid amendment was applied prospectively and not to the case of the petitioners aforementioned. This Court therefore while disposing of the aforesaid writ petitions directed that the amendment aforesaid shall be treated to have come into force w.e.f. 20.06.2001 when the Rajasthan Various Service (Amendments) Rules, 2001 introducing omnibus amendment in all the services of the State came into force. 5. This Court therefore while disposing of the aforesaid writ petitions directed that the amendment aforesaid shall be treated to have come into force w.e.f. 20.06.2001 when the Rajasthan Various Service (Amendments) Rules, 2001 introducing omnibus amendment in all the services of the State came into force. 5. Learned counsel for the petitioner submitted that the State Government has full competence to relax the rigor of the rules in the case of employee who faced undue hardship. Learned counsel argued that the respondents themselves have in the case of Himmat Singh, Constable No. 844, VIII Battalion, RAC (IR) New Delhi granted similar relaxation on satisfaction of the fact that third child was born to his wife after failure of sterilization operation. Copy of order dated 01.04.2013 issued by the Government in its Department of Home has been placed on record. It is argued that from perusal of the aforesaid order it would appear that relaxation has been granted to Himmat Singh, Constable for the purpose of promotion. Learned counsel argued that the fact with reference to issuance of aforesaid order was asserted by the petitioner in Para 16 of the writ petition and the respondents in reply to the writ petition have merely stated, "That contents of para No. 16 of the writ petition are matter of record, hence need no reply." It is therefore a case of discrimination by violation of Articles 14 and 16 of the Constitution of India. 6. Learned counsel for the respondents opposed the writ petition and submitted that even if relaxation has been granted in an isolated case, the same cannot become a ground for sustaining the argument of discrimination. The fact is that the petitioner had third child born to his wife after the cut off date i.e. 01.06.2002, the disqualification would be very much attracted. The petitioner would be entitled to selection scale/promotion only after expiry of five years as envisaged in the rules. 7. We find no justification for not extending similar benefit to the petitioner as the respondents themselves have granted similar relief to fellow constable of the petitioner-namely; Himmat Singh, who was denied benefit of promotion on the premise that a third child was born to his wife after the cut off date. It is purportedly to overcome that hurdle that the respondents issued order of relaxation in his case on 01.04.2013. It is purportedly to overcome that hurdle that the respondents issued order of relaxation in his case on 01.04.2013. It is a clear cut case of discrimination where two similarly situated persons have been treated differently by the respondents, thereby inviting frown of Articles 14 and 16 of the Constitution of India. 8. In view of above, writ petition deserves to succeed and is accordingly allowed with the direction that similar relaxation, as granted to Himmat Singh, Constable, shall be extended to the petitioner to grant him selection grade/promotion on account of third child having been born to his wife after cut off date. The respondents are directed to grant selection grade/ACP as also promotion to the petitioner from the date such benefits were granted to his immediate junior with all the consequential benefits, within a period of three months from the date copy of this judgment is produced before them.