The High Court of Rajasthan held that rules disqualifying candidates with more than two children born on or after June 1, 2002, do not violate Article 14. The Court found the classification based on reasonable grounds of family welfare and population control and dismissed the writ petition.
Writ application dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER
D.B. Civil Writ Petition No.18662/2012
Dr. Swati Panwar Versus State of Rajasthan & Ors.
Date of Judgment :: 13th December, 2013
PRESENT
HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Mr.Sunil Samdaria, for petitioner. Mr.Amit Kuri, for respondents.
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BY THE COURT : (Per Hon'ble Veerendr Singh Siradhana, J.)
The petitioner, in the instant writ application, has assailed the legality, validity and correctness of the letter/communication dated 31st October, 2012 declaring her candidature as ineligible in response to advertisement dated 13th May, 2011. Simultaneously, the petitioner has also challenged the notification dated 20th June, 2001, amending the Rajasthan Various Service (Amendment) Rules, 2001 (hereinafter referred to as 'the Rules of 2001', for short) and notification dated 10th April, 2003 of the Rajasthan Various Service (Amendment) Rules, 2003 (hereinafter referred to as 'the Rules of 2003', for short), as discriminatory, illegal, invalid and ultra vires. The amendments have been enforced with effect from 10th April, 2003.
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for appointment to the post of Assistant Professors and Senior Demonstrators in various faculties of Medicine and Surgery; by 10th of June, 2011, being the last date; submitted her application for consideration of her candidature for the post of Senior Demonstrator – Preventive and Social Medicine (Community Medicine) under the category 'General-Women' (GE-WE) and consequently, was allotted Roll Number 300957. The petitioner successfully participated in the online examination/ screening test held on 26th March, 2012 and 15th April, 2012. The successful candidates were required to submit an application form, as available on the website of the RPSC, furnishing necessary information, in order to determine their eligibility. On a scrutiny of the application of the petitioner, the RPSC, declared her ineligible vide letter/communication dated 31st October, 2012; for having more than two children on or after 1st June, 2002, as per terms and conditions, specifically stipulated, in the advertisement dated 13th May, 2011, rendering such a candidate ineligible for appointment.
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therefore, the appointment to the petitioner cannot be declined for the reason that those candidates who crossed the maximum age limit during the course of recruitment process, are treated as eligible for appointment and hence, applying the same analogy, the petitioner ought to have been declared eligible. Thirdly, the amendment in the Rules of 2001, made effective vide notification dated 10th April, 2003 and consequential amendment in Rajasthan Medical Services (Collegiate Branch) Rules, 1962 do not, in all the circumstances, impose such a disqualification for the reason that the Government servants holding the post, in the event of birth of third child, are debarred from promotion for five recruitment years from the date on which the promotion becomes due. Therefore, the rule being discriminatory qua a candidate, like the petitioner, aspiring to secure government job and those who are government servants. Hence, the complete moratorium on appointment of candidate for having more than two children on or after 1st June, 2002, is illegal and invalid in the eye of law as well as violative of Article 14 of the Constitution of India. Fourthly, the petitioner being a women had very less choice, when it comes to procreate a child having regard to the social fabric of the Society and therefore, the rule, at least in the case of women candidates, needs to be relaxed.
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and therefore, the prayer for relaxation of the rules in case of women candidate is absolutely misconceived and without any factual foundation. Further, there is an intelligible differentia underlying the classification while considering the case of a candidate seeking appointment and the one already holding a post in the government service and therefore, by no stretch of imagination the rule could be construed to be discriminatory or violative of any of the provisions of Article 14 of the Constitution of India.
“ 5. Before however taking up the other two points raised by Counsel for the appellants which were pressed before us in this Court it may be necessary to set out the approach which a Court has to make and the principles by which it has to be guided in such matters. Courts interpret the constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people which the legislature in its wisdom, through beneficial legislation, seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. It must take into consideration the changing trends of economic thought, the temper of the times and the living aspirations and feelings of the people. This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed
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to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society, so that when such a right clashes with the larger interest of the country it must yield to the latter. Emphasising the role of Courts in such matters this Court in the case of Jyoti Pershad v. Administrator for the Union Territory of Delh i2 observed as follows:
“Where the Legislature fulfils its purpose and enacts laws, which in its wisdom, is considered necessary for the solution of what after all is a very human problem the tests of ‘reasonableness’ have to be viewed in the context of the issues which faced the Legislature. In the construction of such laws and particularly in judging of their validity the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation to promote, for the Courts are not, in these matters, functioning as it were in vacuo, but as parts of a society which is trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole.”
6. It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognised that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which
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assails the same. In the case of Mohd. Hanif Quareshi v. State of Bihar3 while adverting to this aspect Das, C.J. as he then was, speaking for the Court observed as follows:
“The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The Courts, it is accepted, must presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.”
“GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL (A-GROUP-II)
F.7(1)DOP/A-II/95 Jaipur, dated 20-6-2001
NOTIFICATION
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Various Services Rules as specified in the Schedule appended hereto, namely:-
1. Short title and commencement:- (i) These rules may be called the Rajasthan Verious Services (Amendment) Rules, 2001.
(ii) They shall come into force with immediate effect.
2. Amendment:- After the existing sub-rules (2) or (3) or (4), as the case may be, of rule as mentioned in column No.3 against each of the
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Service rules as mentioned in Column No. 2 of the Schedule appended hereto, the following new sub-rule at the next serial number shall be added, namely:-
“No candidate shall be eligible for appointment to the service who has more than two children on or before 1-6-2002.
Provided that where a candidate has only one child from earlier delivery but more than one child are born out of a single subsequent deliver, the children so born shall be deemed to be one entity while counting the total number of children.”
3. Amendment:- After the existing sub-rule (1) of 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:
“(1) 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.
Provided further 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 deliver, the children so born shall be deemed to be one entity while counting the total number of children.”
By Order and in the name of the Governor,
Sd/(S.N. Sharma)
Deputy Secretary to the Govt. ”
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recruitment years from the date on which the promotion becomes due, if he/she procreate more than two children on or after 1st June, 2002.
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may, the permissible number of children to a couple is based on legislative wisdom and in our view, is a matter of policy decision, which is not open to judicial scrutiny. The observation of the Ho'ble Supreme Court, in the case of Javed Versus State of Haryana : (2003) 8 SCC 369, are very much relevant wherein the Hon'ble Supreme Court dealing with the somewhat similar controversy, held thus:-
“18. To make a beginning, the reforms may be introduced at the grass-root level so as to spiral up or may be introduced at the top so as to percolate down. Panchayats are grass-root level institutions of local selfgovernance. They have a wider base. There is nothing wrong in the State of Haryana having chosen to subscribe to the national movement of population control by enacting a legislation which would go a long way in ameliorating health, social and economic conditions of rural population, and thereby contribute to the development of the nation which in its turn would benefit the entire citizenry. We may quote from the National Population Policy 2000 (Government of India Publication, page 35):-
"Demonstration of support by elected leaders, opinion makers, and religious leaders with close involvement in the reproductive and child health programme greatly influences the behaviour and response patterns of individuals and communities. This serves to enthuse communities to be attentive towards the quality and coverage of maternal and child health services, including referral care.".........."
The involvement and enthusiastic participation of elected leaders will ensure dedicated involvement of administrators at district and sub-district levels. Demonstration of strong support to the small family norm, as well as personal example, by political, community, business, professional, and religious leaders, media and film stars, sports personalities and opinion makers, will enhance its acceptance throughout society."
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“30. India has the (dis)credit of being second only to China at the top in the list of the 10 most-populous countries of the world. As on 1.2.2000 the population of China was 1,277.6 million while the population of India as on 1.3.2001 was 1,027.0 million (Census of India, 2001, Series I, India - Paper I of 2001, page 29).
31.The torrential increase in the population of the country is one of the major hindrances in the pace of India's socio-economic progress. Everyday, about 50,000 persons are added to the already large base of its population. The Karunakaran Population Committee (1992-93) had proposed certain disincentives for those who do not follow the norms of the Development Model adopted by National Public Policy so as to bring down the fertility rate. It is a matter of regret that though the Constitution of India is committed to social and economic justice for all, yet India has entered the new millennium
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with the largest number of illiterates in the world and the largest number of people below the poverty line. The laudable goals spelt out in the Directive Principles of State Policy in the Constitution of India can best be achieved if the population explosion is checked effectively. Therefore, the population control assumes a central importance for providing social and economic justice to the people of India (Usha Tandon, Reader, Faculty of Law, Delhi University, - Research Paper on Population Stabilization, Delhi Law Review, Vol. XXIII 2001, pp.125-131).
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Here, the per capita crop land is the lowest in the world, which is also shrinking fast. If this falls below the minimum sustainable level, people can no longer feed themselves and shall become dependent on imported food, provided there are nations with exportable surpluses. Perhaps, this may lead to famine and abnormal conditions in some parts of the country. (Source - Population Challenge, Arcot Easwaran, The Hindu, dated 8.7.2003). It is emphasized that as the population grows rapidly there is a corresponding decrease in per capita water and food. Women in many places trek long distances in search of water which distances would increase every next year on account of excessive ground water withdrawals catering to the need of the increasing population, resulting in lowering the levels of water tables.”
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(VEERENDR SINGH SIRADHANA), J. (AMITAVA ROY), CJ.
Sunil/P.A.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A.
3 issues framed by the court
Whether a rule disqualifying candidates with more than two children born on or after 1st June 2002 violates Article 14 of the Constitution.
Whether there is arbitrariness or discrimination in imposing a stricter disqualification for appointment applicants compared to government servants regarding promotion.
Whether a woman candidate can challenge the fertilization rules applied after her candidature was established at the application stage.
Colour shows how this judgement treated each authority
Pathumma v. State of KeralaDistinguished¶22
Pathumma v. State of Kerala : (1978) 2 SCC 1 · Who else cites this
Jyoti Pershad v. Administrator for the Union Territory of DelhiExplained¶25
Jyoti Pershad v. Administrator for the Union Territory of Delhi
Mohd. Hanif Quareshi v. State of BiharDistinguished¶29
Mohd. Hanif Quareshi v. State of Bihar
Javed Versus State of HaryanaApplied¶58
Javed Versus State of Haryana : (2003) 8 SCC 369 · Who else cites this
2 provisions across 1 enactments
Dr. Swati Panwar
State of Rajasthan
Amitava Roy
Veerendr Singh Siradhana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
