ORDER : SUDESH BANSAL, J. 1. Heard learned counsel for both parties and perused the pleadings and material available on record carefully. 2. Instant civil writ petition under Article 226 of the Constitution of India has been filed by the petitioner feeling aggrieved by non- inclusion of her name in the final select list dated 04.09.2024 for grant of appointment on the post of ANM under OBC-NCL Female PH category, despite being higher in merit than the selected candidates of same category in the select list at Serial Nos. 3356, 3364, 3371, 3377, 3380 and 3381. Final select list dated04.09.2024 is enclosed with the writ petition as Annexure-7. 3. It has been pointed out that the petitioner scored 45.30 marks but in the final select list, the candidates belonging to the category of petitioner, and lower in merit have been selected and were granted appointment, hence, legal right of petitioner has been violated arbitrarily. From the select list (Ann-7), the candidates at Serial No. 3356, 3364, 3371, 3377, 3380 and 3381 have been shown to secure followings marks:- S. No. Applicant’s Name Selected Against Category Total Marks 3356 Ranu Varma OBC-NCL-F-PH 39.033 3364 Sadhana Kumari Lodha OBC-NCL-F-PH 38.383 3371 Chayana Khan OBC-NCL-F-PH 37.675 3377 Nirmala Lodha OBC-NCL-F-PH 37.108 3380 Deepa OBC-NCL-F-PH 36.317 3381 Bharan Bai OBC-NCL-F-PH 35.450 4. Having perused the reply to the writ petition, the issue of petitioner being higher in merit than the selected candidates belonging to her category, referred in preceding paragraph, is no more quibble, but the reason of non-inclusion of petitioner in the final select list has been ascribed that she has three alive children and their birth date is beyond the cut-off date i.e. 01.06.2002. The name and date of birth of three children of petitioner has been indicated in Para No. 6 of the reply, which reads as under:- S. No. Name of the Child Date of Birth 1. Indar Sen 21.08.2003 2. Khushi Sen 03.06.2005 3. Khushal Sen 21.07.2016 The respondent, relying upon the Circular dated 20.06.2001 issued by the Department of Personnel, Government of Rajasthan has taken a plea that petitioner is ineligible due to having more than two children on or after 01.06.2002 and has rightly been denied appointment although falling higher in merit. 5. Indar Sen 21.08.2003 2. Khushi Sen 03.06.2005 3. Khushal Sen 21.07.2016 The respondent, relying upon the Circular dated 20.06.2001 issued by the Department of Personnel, Government of Rajasthan has taken a plea that petitioner is ineligible due to having more than two children on or after 01.06.2002 and has rightly been denied appointment although falling higher in merit. 5. Petitioner having apprised with the reason for non-inclusion of her name in the final select list as detailed out by respondents in the reply to the writ petition, referred hereinabove, submitted her rejoinder clarifying the factual aspect of her three children that she entered into marriage with one Shri Norat Sen on 28.03.2015 and out of her wedlock, she gave birth to only one child on 21.07.2016. Other two children namely Indar Sen and Khushi Sen were delivered by the first wife of her husband Shri Norat Sen. Since first wife of husband of petitioner, namely Babita, had passed away on 16.07.2012, thereafter, he entered into second marriage with the petitioner. Thus, petitioner is second wife of Sh. Norat Sen and out of three children, other two children namely Indar Sen and Khushi Sen born on 21.08.2003 and 03.06.2005 belong to first wife Smt. Babita (now deceased). Since the case of petitioner is of re-marriage and after her marriage with Sh. Norat Sen, she gave birth only to one child, petitioner cannot be held ineligible and has denied the appointment on the ground of having three alive children post cut-off date i.e. 01.06.2002. 6. The factual aspect as detailed out and explained by the petitioner in rejoinder, in respect of three children, have not been denied/ disputed from the side of respondents. 7. In the Rajasthan Medical and Health Subordinate Service Rules, 1965, as amended vide Notification dated 16.03.2023, Rule21 (5)(iv) reads as under:- “(iv) any candidate who performed remarriage which is not against any law and before such the remarriage he is not disqualified for appointment under this sub-rule, he shall not be disqualified if any child is born out of single delivery from such remarriage.” 8. This Court is of the considered opinion that petitioner deserves to get benefit of exemption prescribed in Rule 21(5)(iv) of the Rules, 1965 referred hereinabove. Indisputably, petitioner entered into marriage with a person, whose first wife had already passed away, leaving behind two children. This Court is of the considered opinion that petitioner deserves to get benefit of exemption prescribed in Rule 21(5)(iv) of the Rules, 1965 referred hereinabove. Indisputably, petitioner entered into marriage with a person, whose first wife had already passed away, leaving behind two children. Petitioner, after her marriage gave birth only to one child. Hence, petitioner cannot be held ineligible for appointment in Government service on the ground of having more than two living children post cut-off date01.06.2002, relying on the Circular dated 20.06.2001. 9. In addition, counsel for petitioner has also placed reliance on the order dated 19.04.2018 passed by the Division Bench in D.B. Civil Writs No. 8796/2014 Jairam Meena Vs. The State of Rajasthan and other connected matters. In this case, the issue before the Division Bench was in respect of not granting promotion to the petitioners, on account of having more than two living children after the cut-off date i.e. 01.06.2002. In this order, the Division bench relied upon the Notification dated 20.11.2015, granting relaxation in the concerned Rules, which has been incorporated in the order and reads as under:- “ 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. The amended Rule referred in above notification is pari materia to the Rule 21(5)(iv) of the amended Rules of 2023 reproduced hereinabove. The Division Bench opined that by virtue of Notification dated 20.11.2015, petitioners were held entitled for promotion. Since the Rule 21 (5)(iv) is pari materia, similar analogy can be applied to the case of petitioner as well, holding her eligible for appointment by getting benefit of Rule 21(5)(iv) of the Rules of 1965. 11. The Division Bench opined that by virtue of Notification dated 20.11.2015, petitioners were held entitled for promotion. Since the Rule 21 (5)(iv) is pari materia, similar analogy can be applied to the case of petitioner as well, holding her eligible for appointment by getting benefit of Rule 21(5)(iv) of the Rules of 1965. 11. As has been observed hereinabove, that undisputedly petitioner falls higher in merit for selection on the post of ANM in the category of OBC-NCL-Female-PH category and merely on account of having more than three living children after cut off date i.e. 01.06.2002, she cannot be held ineligible for the reasons referred hereinabove, petitioner is obviously entitled to get appointment on the post of ANM in the category of OBC-NCL-Female-PH pursuant to recruitment-2023. 12. As a result, instant writ petition succeeds and is hereby allowed. Respondents are directed to accord the appointment to petitioner on the post of ANM in the OBC-NCL-Female-PH category, obviously subject to fulfilling the other eligibility. It is made clear that petitioner shall be given notional benefits and seniority with the selected candidates in her category, who stand lower in merit, than petitioner and in the final select list dated 04.09.2024.However, the actual and monetary benefits shall be payable from the date of joining service. 13. Needful be done by the respondents within a period of four weeks. 14. Stay application and other pending application(s), if any, stand disposed of.