The Rajasthan Municipalities (Safai Employees Service) Rules, 2012 do not provide for disqualification of appointment on the ground of having more than two children after 01.06.2002.

ORDER :

Dr. Pushpendra Singh Bhati, J.

1. Issue notice. Mr. B.K. Sharma, Advocate, is directed to accept notice on behalf of the respondents. Hence, service is complete.

2. With the consent of learned counsel for the parties, the matter has been heard finally.

3. The petitioner has preferred this writ petition under Article 226 of the Constitution of India with the following prayers:

"(i). by an appropriate writ, order or directions the impugned termination order dated 26.8.2011 may kindly be quashed.

(ii) the respondents may kindly be directed to reinstate the petitioner on the post of sweeper by treating the petitioner in continuity in her service from the date of her termination from service till the date of her reinstatement with all consequential service benefit to the petitioner."

4. The brief facts as noticed by this Court are that the petitioner had participated in the recruitment process held by the Municipal Board, Ladnu for the post of Safai Karamchari vide recruitment process, 2012 in accordance with the Rajasthan Municipalities (Safai Employees Service) Rules, 2012 (hereinafter referred to as 'the Rules of 2012). The petitioner being an eligible candidate, was accordingly selected for the post of Safai Karamchari. After such selection of the petitioner, the respondent No. 2 constituted a committee to verify the number of children born after 01.06.2002 to each selected candidate. The committee submitted its report wherein it was observed that the petitioner is having more than two children after 01.06.2002. Thereafter, the respondents issued appointment orders to the selected candidates but the petitioner was not given appointment on account of his name appearing in the list of persons having the third child after 01.06.2002.

5. Learned counsel for the petitioner has submitted that the post of Safai Karamchari is governed by the Rules of 2012 and as per such Rules, there is no denial of appointment on account of more than two children after 01.06.2002.

6. Learned counsel for the petitioner has further shown that the Hon'ble Division Bench has already decided the issue in D.B. Civil Special Appeal (Writ) No. 703/2016 (State of Rajasthan & Anr. Vs. Smt. Indira Devi) decided on 25.10.2016, wherein the Hon'ble Division Bench has held that the candidate cannot be denied his appointment on the ground of having more than two children after 01.06.2002. The judgment reads as under:

"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').

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

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 restrictin