Allowed

Tara Devi v. State of Rajasthan and Ors.

Rajasthan HC3 Apr 2018WMAP/93/2018

Case brief

AI extract

What is this about?

Allowed the miscellaneous application to correct a previous order. Directed respondents to consider the petitioner for a vacant post in accordance with the Division Bench judgment in State of Rajasthan vs. Smt. Indira Devi.

What did the court decide?

The order dated 22.03.2018 is recalled; a fresh order passed considering the petitioner on the same terms as the Division Bench judgment if vacant posts exist.

Tara Devi Vs State of Rajasthan and Ors. — Service and Employment | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Writ Misc Application No. 93 / 2018

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S.B. Civil Writ Petition No.4186/2018

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Tara Devi W/o Sh. Kalu Ram, Aged About 42 Years, Resident Ward Number 33 Near BSNL Tower Railway Station Sardar Shahar, District Churu (Raj.)

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----Petitioner

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Versus

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State of Rajasthan Through the Secretary, Department of Local Self, Secretariat, Govt. of Rajasthan, Jaipur.

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Municipal Board, Sardar Shahar District Churu (raj.). Through Its Executive Officer.

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The Executive Officer, Municipal Board, Sardar District Churu (Raj.)

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----Respondents

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For Petitioner(s) :Mr. HS Sidhu

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For Respondent(s) :Mr. Geeta Shrimali for Dr. P. Dave

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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03/04/2018

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Learned counsel for the petitioner has preferred the misc. application seeking the correction / modification in the order dated 22.03.2018 passed by this Court in S.B. Civil Writ Petition No. 4186/2018.

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For the reasons mentioned in the application, the same is allowed.

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The order dated 22.03.2018 passed by this Court is recalled and following fresh order is passed:-

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(2 of 4)

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[WMAP-93/2018]

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“1. This writ petition under Article 226 of the Constitution of India has been preferred with the following prayers:

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“(i) By an appropriate writ, order or direction, the impugned order dated 22.05.2014 annex. P/4 may kindly be quashed and set aside with all consequential benefits.

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2. Any other appropriate writ, order or direction which this Hon’ble Court deems just and proper may kindly be passed in favour of the petitioner.”

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2. Learned counsel for the parties agree that the controversy is covered by the judgment of Division Bench of this Court in State of Rajasthan Vs. Smt. Indira Devi (D.B. Civil Special Appeal (Writ) No.703/2016) decided on 25.10.2016. The judgment reads as follows :-

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“The present appeal assails order dated 05.11.2015 allowing S.B.Civil Writ Petition No.2703/2015. The learned Single Judge held that the stipulation in the advertisement that those who had a third child born after 01.06.2002 would be considered ineligible for appointment was beyond the conditions of eligibility prescribed in Rule 6 of Rajasthan Municipalities (Safai Employees Service) Rules, 2012 (hereinafter called, 'the Rules').

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Learned counsel for the Appellants submits that the writ petition came to be disposed without a counter affidavit. The Respondent had not challenged the conditions in the advertisement with regard to the ineligibility. There was no dispute on facts from her own affidavit that her third child was born after 01.06.2002. If the Respondent had inadvertently been called for consideration contrary to the stipulation in the advertisement, no benefit can flow to her because the stipulation for ineligibility was inconsonance with the National Policy for Controlling

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(3 of 4)

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[WMAP-93/2018]

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Population Growth. Reliance was placed on 2003 (8) SCC 369 (Javed Vs. State of Haryana).

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Conversely, counsel for the Respondent submitted that she was selected on 17.12.2013 and letter of appointment issued. Joining was denied because complaints had been received. It was alleged that her mother-in-law had already been selected as a Safai Employee. The complaint was examined and found to be incorrect. She represented afresh after an order in S.B.Civil Writ Petition No.7196 of 2014. Thereafter the Appellants have taken a fresh ground with regard to her ineligibility restricting the operation of Rule 6 without any amendment of the Rules.

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We have considered the submissions on behalf of the parties.

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The advertisement was never placed before the learned Single Judge by the parties. Despite more than one adjournment no counter affidavit was filed by the Appellants. A copy of the advertisement has however been placed before us in appeal.

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Rule 6 prescribes the eligibility, qualifications fulfillment of which entitles a candidate to be considered. There is no statutory incorporation in Rule 6 with regard to any ineligibility of a candidate if a third child had been born after 01.06.2002. If the eligibility is prescribed in statutory Rules, those who do not fulfill the same are ineligible. If a candidate fulfills the eligibility requirements in Rule 6, she cannot be declared ineligible by incorporation of any clause in the advertisement beyond the statutory requirement of Rule 6. There is no error in the finding of the learned Single Judge that such a condition could not be incorporated in the advertisement beyond statutory provisions. It is not the case of the Appellants that even any executive order had been

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(4 of 4)

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[WMAP-93/2018]

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issued to that effect before the ineligibility clause was incorporated in the advertisement. It is not open for the Appellants to urge that any condition incorporated in the advertisement contrary to the statutory requirement, would still bind the applicant unless there was a challenge to the advertisement. The fact that the candidate may have applied notwithstanding the stipulations in the advertisement cannot confer legality on the condition prescribed beyond the Rules.

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We therefore find no infirmity in the order of learned Single Judge. The Respondent is now required to be considered for appointment in accordance with the offer dated 17.12.2013.

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Reliance on Javed (supra) is misconceived as the challenge related to the vires of the provisions of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994 incorporating a statutory requirement with regard to those having more than two children and which is not the case presently. The appeal is dismissed.”

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3. In light of the afore-quoted judgment, this writ petition is disposed of. The respondents shall be required to consider the petitioner on the same terms as has been given in the order of Division Bench, in case they have a vacant post.”

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(DR. PUSHPENDRA SINGH BHATI)J.

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sudheer

Tara Devi v. State of Rajasthan and Ors.

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Tara Devi v. State of Rajasthan and Ors.

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