JUDGMENT :

Sangeet Lodha, J.

1. These writ petitions preferred by the writ petitioners, life convicts, aggrieved by decision of Prisoners Open Air Camp Advisory Committee ('the Committee') in refusing to recommend their transfer to Open Air Camp, under the provisions of Rajasthan Prisoners Open Air Camp Rules, 1972 ('the Rules').

2. The petitioner-Gajja Ram was convicted for offence under Section 302 IPC and sentenced to suffer life imprisonment. The petitioner was extended first parole for a period of 20 days from 22.7.09 to 10.8.09. After expiry of the period of parole, he did not surrender and absconded. Thereafter, he was arrested on 30.6.16 i.e. after lapse of about 6 years and 10 months. On account of breach of condition during the first parole, the petitioner could not avail second and third parole under Rule 9 of Rajasthan Prisoners Release on Parole Rules, 1958 ('the Rules of 1958') but he was extended benefit of parole for 7 days and thereafter, for 15 days under Rule 18 of the Rules of 1958. The petitioner made an application for transfer to Open Air Camp under the Rules of 1972, which stands rejected by the Committee observing that since the petitioner had absconded during the first parole, by virtue of inhibition contained in Rule 3 (c) of the Rules of 1972, he is not entitled for transfer to Open Air Camp.

3. Similarly, the petitioner-Joshnath, who is undergoing sentence of life imprisonment on being convicted for offences under Sections 460, 302, 307, 326, 324 IPC, has also been denied the benefit of transfer to Open Air Camp inasmuch as, after availing the first parole for a period of 20 days from 9.6.15 to 28.6.15, he did not surrender and was lodged in jail after arrest on 25.7.17.

4. Learned counsel appearing for the petitioners contended that Clause (c) of Rule 3 of the Rules of 1972, puts restriction on release of a prisoner, who escapes from jail or has attempted to escape from lawful custody and thus, the inhibition contained as aforesaid is not attracted in the matter where the prisoners fail to surrender to Jail Authority on completion of period of parole. In this regard, the learned counsel relied upon a Bench decision of this Court dated 6.10.20 in Yogesh Kumar Devangan vs. State & Ors.: D.B. Criminal Writ Petition No. 541/19, wherein the Court while considering the provisions of Rule 3(c) of the Rules of 1972 opined as under:

"7. Rule 4 of the Rules of 1972 provides that a prisoner shall be eligible for admission to an Open Air Camp, if he does not fall within any of the categories specified in Rule 3. Rule 3 of the Rules of 1972 enlists various ineligibility, out of which clause (c) and (d) (reproduced hereunder) are of some significance:

3. Ineligibility for admission to open air camp.-The following classes of prisoners shall ordinarily be not eligible for being sent to Open Camp:-

(a) ... ..... ....

(b) ..... .........

(c) persons who have escaped from the jails or who have attempted to escape from a lawful custody,

(d) Prisoners who have been convicted of an offence or offences under sections 121 to 130, 216A, 224, 225, 231, 232, 303, 311, 328, 332, 333, 376, 377, 383, 392 to 402, 435 to 440 and 460 of the Indian Penal Code (Act XLV of 1860)."

.... .... ......

.... ..... ......"

8. Clause (c) of Rule 3 of the Rules of 1972 deals with a situation when a prisoner escapes from the jail or has attempted to escape from lawful custody. The petitioner's case, who has failed to report to jail authorities on completion of his parole, cannot be equated with cases of prisoners, who have escaped from the jail or have attempted to do so.

9. In our opinion, the petitioner convicted under Section 302 I.P.C. having served a sentence of more than 10 years deserves to be shifted to Open Air Camp under the Rules of 1972. Section 302 is not a provision enumerated under Rule 3(d) of the Rules of 1972, and we therefore do not see any justifiable reason to deny the petitioner his right to be admitted to Open Air Camp."

5. Learned co