ORDER : 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 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 ‘Exserviceman’ on 02.05.2018. He pointed out that in the column meant for ‘Number of Living Child (Born before 01/06/2002)/ thfor ckyd dh la[;k 01/06/2002 ls igys++ ckn es iSnk gqvk " 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, 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. 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 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. 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 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. 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. 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, 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. 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 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. 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 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. 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 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. 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 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.