The disqualification rule applies based on the number of living children a candidate has, and the subsequent event of a child passing away does not negate the disqualification.

ORDER :

1. The present writ petition was preferred by the petitioner apprehending that his candidature will be rejected by the respondents on account of having three children.

2. Considering the petitioner’s submissions on 09.04.2021, this Court had passed the following order:

“1. Learned counsel for the petitioner submits that one of the petitioner’s daughter, namely, Renuka passed away on 15.02.2018 and thus, on the date of advertisement, i.e., 02.04.2018, he had only two surviving children. As such, disqualification arising on account of having more than two children on or after 01.06.2002, does not create any impediment in petitioner’s way of getting appointment.

2. Hence, matter requires consideration.

3. Issue notice. Issue notice of stay application also, returnable within six weeks.

4. Meanwhile, petitioner shall be provisionally permitted to appear for interview whereafter, his name shall be reflected at appropriate place in the merit list/select list.

5. In case his name finds place in the select list, his name shall not be recommended to the State Government for appointment, without leave of the Court.”

3. Mr. Dalip Singh Rajvi, learned counsel for the petitioner apprised the Court about the backdrop facts and submitted that an Advertisement for Rajasthan Administrative Services Combined Competitive Examination – 2018 was issued on 02.04.2018, in which, the petitioner submitted his application form as an ‘Exserviceman’ on 02.05.2018. He pointed out that in the column meant for ‘Number of Living Child (Born before 01/06/2002)/thfor ckyd dh la[;k 01/06/2002 ls igys++ ckn es iSnk gqvk " the petitioner had recorded “02” children, which clearly showed that as on date of submitting application form, he has two living children.

4. The petitioner took part in recruitment process and was found meritorious. However, on perusal of the record, the respondents found that the petitioner has fathered three girls namely Nisha Bishnoi; Aditi Bishnoi and Renuka Bishnoi, who were born on 6th May, 2006; 8th August, 2008 and 4th April 2013, respectively. As the luck would have it, petitioner’s third girl child namely Renuka passed away on 15.02.2018.

5. Mr. Rajvi, learned counsel for the petitioner while asserting that as per the requirement of the Advertisement, the petitioner is fully eligible and qualified to be appointed, as on the date of submitting the application form, he had only two surviving children, argued that his candidature could not have been rejected. He submitted that the fact that petitioner’s third child namely Renuka had passed away on 15.02.2018, was brought to the notice of the Commission (RPSC), yet they have adopted a hyper-technical approach and rejected petitioner’s candidature by way of the order dated 18.03.2021.

6. Learned counsel argued that it is settled proposition of law that the eligibility of a candidate has to be seen on the date of submitting the application form, unless the Rules provide otherwise. It was vehemently argued by Mr. Rajvi that the State cannot apply statutory provisions in a pedantic manner and deprive the petitioner of his right to get employment, when admittedly, on the date of submitting his application form no disqualification was attracted.

7. Learned counsel further argued that considering the object of population control sought to be achieved by the amendment brought in the Rules, the number of children to be reckoned for the disqualification is, the number of ‘living children’ a candidate has, as opposed to number of children born to him/her. In support of his contention, learned counsel for the petitioner relied upon the judgment dated 13.08.2012 rendered by the Division Bench of this Court in the case of Bharatraj @ Bharatram vs. Additional Civil Judge (S.D.), Baran, District Baran & Ors. : D.B. Special Appeal (W) No. 354/2012 (particularly Para Nos. 9, 13 and 16) and argued that the Division Bench while deciding the issue, whether child given in adoption can be counted for disqualifi