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2019 Supreme(Raj) 159
IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
SANGEET LODHA, DINESH MEHTA, JJ.
Anita and Ors. - Petitioners
Versus
State of Rajasthan and Ors. - Respondents
D.B. Civil Writ Nos. 16572, 13489 of 2018 and 3475 of 2019
Decided On : 02-04-2019
For the Petitioners: Lokesh Mathur, Sanjay Raj Pandit, M.A. Siddiqui and Sikandar Khan
For the Respondents: Rekha Borana, AAG and Saransh Viz.
Headnote:
Rajasthan Municipalities (Safai Employees Service) Rules, 2012 – Rule 9A Rajasthan Municipalities Act, 2009 – Section 337(6) – Constitution of India Constitution of India – Article 14,226 – Three writ petitions are common, petitioners selected against vacancies advertised for Safai Employees subsequently appointment orders issued to petitioners of first writ petition canceled, whereas petitioners involved in other two writ petitions despite being selected, not allowed to join duties reason for rejection or denial is they having more than two children – Whether State has power to prescribe disqualification based on number of children – Held, Impugned amendment Rules 2012 sprouts or generates discrimination – If candidate gives birth to child in manner his number of children after 01.06.2002 exceeds two; not get appointment if he wishes to become a Safai employee in Rule 9A of Rules2012, but if he applies for Class-IV employee or for ministerial post, governed by Subordinate Ministerial Service Rules, 1963 (both applicable to Municipalities),shall steer clear eligibility, as there no bar or prohibition based on number of children in applicable Rules – State should introduce such amendment in other Service Rules governing all municipal employees, which have been framed under Section 337 of Act of 2009 or Section 88 of earlier Act of 1959 – All three petitions allowed – [Para 49,56 &59]
Facts of the case:
Three writ petitions are common, petitioners selected against vacancies advertised for Safai Employees subsequently appointment orders issued to petitioners of first writ petition canceled, whereas petitioners involved in other two writ petitions despite being selected, not allowed to join duties reason for rejection or denial is they having more than two children – Whether State has power to prescribe disqualification based on number of children.
Findings of the court:
Impugned amendment Rules 2012 sprouts or generates discrimination – If candidate gives birth to child in manner his number of children after 01.06.2002 exceeds two; not get appointment if he wishes to become a Safai employee in Rule 9A of Rules2012, but if he applies for Class-IV employee or for ministerial post, governed by Subordinate Ministerial Service Rules, 1963 (both applicable to Municipalities),shall steer clear eligibility, as there no bar or prohibition based on number of children in applicable Rules – State should introduce such amendment in other Service Rules governing all municipal employees, which have been framed under Section 337 of Act of 2009 or Section 88 of earlier Act of 1959.
Result: All three petitions allowed
DINESH MEHTA, J.
The grievance raised and questions involved in these three writ petitions are common, hence they are being decided conjointly. All the above mentioned petitioners were selected against the vacancies advertised for Safai Employees, but subsequently appointment orders issued to the petitioners of the first writ petition (D.B. Civil Writ Petition No. 16572/2018) have been canceled, whereas petitioners involved in the other two writ petitions (D.B. Civil Writ Petitions No. 13489/2018 & 3475/2019), despite being selected, were not allowed to join duties. The reason for their rejection or denial is that they are having more than two children.
For the purpose of convenience, the facts of DB Civil Writ Petition No. 16572/2018 are being taken into consideration.
1. The petitioners have preferred the present writ petition invoking this Court's extra ordinary jurisdiction conferred by Article 226 of the Constitution of India for the following reliefs:-
"(a) by an appropriate writ, order or direction rule 9A of Rajasthan Municipalities (Safai Employees Service) Rules, 2012 inserted vide notification dated 11.04.2018 may be declared to be contrary to Article 14 of the Constitution of India and Section 337(6) of the Rajasthan Municipalities Act, 2009 and may be quashed and set aside;
(b) by an appropriate writ, order or direction impugned order dated 24.09.2018 (Annex. 5) cancelling the appointments of petitioners may be declared illegal and be quashed and set aside;
(c) by an appropriate writ, order or direction the respondents may be directed to reinstate the petitioners as safai employee with all consequential benefits;
(d) Any other order or direction, which this Hon'ble Court deemed just and proper be passed in favour of the petitioner;
(e) Costs of this petition may kindly be allowed to the petitioners;"
2. The factual matrix within the precincts of the question raised and challenge laid in the instant writ petitions unfolds as under:-
(2.1) The State of Rajasthan, Department of Local Self Government framed the Rajasthan Municipalities (Safai Employees Service) Rules, 2012 (hereinafter referred to as "the Safai Employees Rules, 2012" or "the Rules of 2012") in exercise of powers conferred to it, by Section 337 and 335 of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as "the Act of 2009"). These rules, which were promulgated vide notification dated 18.04.2012, came to be published in the Official Gazette on 04.05.2012 and came into force instantaneously. The Rules of 2012 deal with recruitment, appointment and terms of employment of Safai employees. Rule 9 thereof, which is relevant for the present purpose dealing with the procedure for direct recruitment, reads thus:-
"9. Procedure for direct recruitment-The Chief Municipal Officer shall invite applications for direct recruitment through advertisement in the two state level daily newspapers and shall make appointment on the basis of either conducting written examination/interview/merit/experience [lottery system amongst eligible candidates] or on the basis of one or more criteria's as mentioned above."
(2.2) On 11.04.2018, the State Government issued a notification No. F.8(Ga)()/Rules/LSG/12/8426 dated 11.04.2018, whereby a new Rule 9A had been inserted in the Rules of 2012, which provides that any person who has more than two children on or after 01.06.2002 shall not be eligible for appointment under the Rules of 2012. This rule is the bone of contention and thus, we deem it apt to reproduce the same, for ready reference:-
"9A. Disqualification for appointment.- No candidate shall be eligible for appointment to the service who has more than two children on or after 01.06.2002.
Provided that:
(i) the candidate having more than two children shall not be deemed to be disqualified for appointment so long as the number of children he/she has on 1st June, 2002, does not increase.
(ii) where a candidate has only one child from earlier delivery but more than one
