Allowed

Gajender Bishnoi v. the State of Rajasthan

Rajasthan HC23 Jul 2024SAW/997/2023

Case brief

AI extract

What is this about?

The Special Appeal was filed against the Rajasthan High Court order which rejected the appellant's candidature for appointment due to having more than two children, despite the death of the third child. The Supreme Court resolution distinguishing adoption from natural death was applied. The High Court below was remanded for reconsideration as it misinterpreted the disqualification norms regarding

What did the court decide?

The Special Appeal allowed; the order dated 5th October 2023 set aside; the order dated 18th March 2021 quashed. The candidature was rejected.

Gajender Bishnoi Vs the State of Rajasthan — Pension and Retirement Benefits | Rajasthan HC (2024)

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[2024:RJ-JD:31021-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Spl. Appl. Writ No. 997/2023

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Gajender Bishnoi S/o Goverdhan Bishnoi, aged about 40 Years, resident of VPO Kakra, Tehsil Nokha, District Bikaner, Rajasthan.

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----Appellant

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Versus

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The State of Rajasthan, through the Secretary, Department of Personnel, Government of Rajasthan, Jaipur, Rajasthan.

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Rajasthan Public Service Commission, through its Secretary, Ajmer, Rajasthan.

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The Joint Secretary, Rajasthan Public Service Commission, Ajmer, Rajasthan.

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----Respondents

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For Appellant(s) : Mr. Dalip Rajvi For Respondent(s) : Mr. Manish Patel, AAG with Ms. Mehali Mehta Mr. Vikram Singh

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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23/07/2024

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By the Court (Per, Hon’ble Justice Shree Chandrashekhar):

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This Special Appeal is directed against the order dated 5^th October 2023 passed in S.B.Civil Writ Petition No.5917 of 2021. 2. Before the writ Court, the appellant laid a challenge to the order dated 18^th March 2021 by which his candidature for appointment in Rajasthan State and Subordinate Services was rejected on the ground that he had fathered three children and therefore incurred disqualification and was not eligible for appointment. To support the stand of the respondents that the

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birth of a third child shall incur disqualification, the judgment in “Javed & Ors. Vs. State of Haryana & Ors.” (2003) 8 SCC 369 has been pressed into service by the learned counsel for the respondents.

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In “ Javed” , the persons having more than two living children were rendered disqualified for election to the office of Sarpanch, Up-Sarpanch and Panch. There, section 175(1)(q) and section 177(1) of the Haryana Panchayati Raj Act 1994 which provided the said disqualification were challenged on the ground of discrimination inasmuch as similar provisions were not enacted in connection with election to the public offices and in other institutions of local self-government or in the State legislature or in the Parliament. The Hon’ble Supreme Court held that the classification made by the impugned provisions was well-defined and well-perceptible. The Hon’ble Supreme Court further held that the object sought to be achieved by the legislation was to popularize the family welfare program and the classification did not suffer from any arbitrariness.

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In the present case, a similar provision has been made in the Notification dated 28^th June 2001 the relevant portions of which are extracted herein below;

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“No candidate shall be eligible for appointment to the service who has more than two children on or after 01.06.2002.”

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The writ Court held as under :

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“ 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

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(3 of 8)

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in adoption, but in no circumstances, a person can think of losing his child in order to maintain the other two.

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19. But then, interpretation of statutory provision cannot be changed in order to deal with a peculiar fact-situation.

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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.”

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This is not in dispute that as on the date of making of the application by the appellant, he had only two living child; the third child had died on 15^th February 2018. A provision for disqualification cannot be stretched too far. The Notification dated 28^th June 2001 simply provides that a person shall not be eligible for appointment or promotion if he had more than two children on or after 1^st June 2002. The expression “no candidates shall be eligible for appointment to the service who has more than two children on or before 01.06.2002” cannot be construed to mean that if a candidate had fathered more than two children, whether living or dead, he shall be disqualified for appointment. Pertinently, the writ Court referred to a decision in “Hitesh Vs Returning Officer, Gram Panchayat Shelubazar and Ors.” [Writ Petition No.3314/2022] by the Nagpur Bench of the Bombay High Court but distinguished the same on facts. Whereas, the facts in “Hitesh” are similar and the said decision has been erroneously ignored by the writ Court. The writ Court dealt with “Hitesh” in the following manner:

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“ 21. It is to be noted that the Nagpur Bench of the Bombay High Court, in the case of Hitesh Vs Returning Officer, Gram Panchayat Shelubazar and Ors. : Writ Petition No.3314/2022 , decided on 17.04.2023, while interpreting a

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(4 of 8)

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similar provision of the Maharashtra Village Panchayat Act held thus:-

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"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:

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"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'.

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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."

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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

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(5 of 8)

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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."

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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.

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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.”

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This also needs to be clarified that the decision in D.B. Civil Writ Petition No.8240 of 2019 titled “ Ramji Lal Jat v. State of Rajasthan & Ors. ” has been rendered in reference to Ex-serviceman who raised a plea that the Notification dated 28^th June 2001 shall not be applicable in his case. The decision in D.B. Civil Writ Petition No.354 of 2012 titled “ Bharat Raj @ Bharatram v. Additional Civil Judge (S.D.)” was in relation to section 43 of the Rajasthan Panchayati Raj Act. Section 19(1) of the Panchayati Raj Act provided that a person seeking election to the post of Sarpanch shall be disqualified if he had more than two children. This also appears on a glance at the decision in “ Bharat Raj ” that the information regarding having three children was suppressed by “ Bharat Raj ”. A Division Bench of this Court dealt with the defence of giving in “adoption” the third child in the following manner:

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“15. The Hon'ble Apex Court in Javed and Others V. State of Haryana and Others(supra) , examined constitutional validity of Section 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994 and held that the right to contest election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications enacted by legislation. If anyone chooses to have more living children than two, he is free to do so under the law, as it stands now, but then he should pay a little price and that is of depriving himself from holding an office in panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it.

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16. Hon'ble Apex Court also considered the effect of giving a child in adoption and held 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 a 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. Para No. 62 of the judgment is reproduced as under:

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"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."

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(Emphasis supplied)

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(7 of 8)

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17. The facts, as narrated above, make it clear that provisions of Section 19(1) of the Rajasthan Panchayati Raj Act, 1994 and Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994 are pari materia. Hon'ble Apex Court has examined the provisions of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994. Hon'ble Apex Court has also examined the effect of giving one child away in adoption and held that merely because one or more of them are given in adoption, the disqualification is not wiped out, therefore, the issue involved in the present case is fully covered by the decision rendered by the Hon'ble Apex Court in Javed and Others V. State of Haryana and Others(supra). Therefore, it is held that merely because one child is given in adoption, the disqualification of appellant enumerated in Section 19(I) of the Rajasthan Panchayati Ra Act, 1994 is not wiped out. The Election Tribunal was right in declaring the election of appellant as null and void in view of its finding on Issue No. 2.”

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As observed by the Hon’ble Supreme Court in “ Javed” , the purpose for making a provision like the one as contained in the Notification dated 28^th June 2001 is to control the population and therefore the stipulation as provided under the Notification dated 28^th June 2001 cannot be referable to a dead child. Furthermore, the writ Court itself seems to have found fault with the stipulation under the Notification dated 28^th June 2001 while observing that the case of the writ petitioner has brought to the fore an unprecedented situation which is required to be appropriately addressed by the State.

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The writ Court has made the following observations : “ 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.

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(8 of 8)

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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.

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27. Needful exercise be done within a period of eight weeks of receiving the representation.

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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.

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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.”

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Quite apparently, the writ Court misconstrued the stipulation in the Notification dated 28^th June 2001 and thus arrived at a wrong conclusion. Therefore, the writ Court’s order dated 5^th October 2023 is set aside. Consequently, the order dated 18^th March 2021 is quashed and the Writ Petition stands allowed. 11. In the result, D.B. Special Appeal Writ No.997 of 2023 is allowed.

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(KULDEEP MATHUR),J

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(SHREE CHANDRASHEKHAR),J

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132-AjaySingh/-

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Whether fit for reporting : Yes/No

Gajender Bishnoi v. the State of Rajasthan

Case brief

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Gajender Bishnoi v. the State of Rajasthan

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