A candidate who remarries and has children from that marriage is not disqualified if the children are born from a single delivery, as per the amended rules.

ORDER :

SUDESH BANSAL, J.

1. Heard learned counsel for both parties and perused the pleadings and material available on record carefully.

2. Instant civil writ petition under Article 226 of the Constitution of India has been filed by the petitioner feeling aggrieved by non- inclusion of her name in the final select list dated 04.09.2024 for grant of appointment on the post of ANM under OBC-NCL Female PH category, despite being higher in merit than the selected candidates of same category in the select list at Serial Nos. 3356, 3364, 3371, 3377, 3380 and 3381. Final select list dated04.09.2024 is enclosed with the writ petition as Annexure-7.

3. It has been pointed out that the petitioner scored 45.30 marks but in the final select list, the candidates belonging to the category of petitioner, and lower in merit have been selected and were granted appointment, hence, legal right of petitioner has been violated arbitrarily. From the select list (Ann-7), the candidates at Serial No. 3356, 3364, 3371, 3377, 3380 and 3381 have been shown to secure followings marks:-

4. Having perused the reply to the writ petition, the issue of petitioner being higher in merit than the selected candidates belonging to her category, referred in preceding paragraph, is no more quibble, but the reason of non-inclusion of petitioner in the final select list has been ascribed that she has three alive children and their birth date is beyond the cut-off date i.e. 01.06.2002. The name and date of birth of three children of petitioner has been indicated in Para No. 6 of the reply, which reads as under:-

The respondent, relying upon the Circular dated 20.06.2001 issued by the Department of Personnel, Government of Rajasthan has taken a plea that petitioner is ineligible due to having more than two children on or after 01.06.2002 and has rightly been denied appointment although falling higher in merit.

5. Petitioner having apprised with the reason for non-inclusion of her name in the final select list as detailed out by respondents in the reply to the writ petition, referred hereinabove, submitted her rejoinder clarifying the factual aspect of her three children that she entered into marriage with one Shri Norat Sen on 28.03.2015 and out of her wedlock, she gave birth to only one child on 21.07.2016. Other two children namely Indar Sen and Khushi Sen were delivered by the first wife of her husband Shri Norat Sen. Since first wife of husband of petitioner, namely Babita, had passed away on 16.07.2012, thereafter, he entered into second marriage with the petitioner. Thus, petitioner is second wife of Sh. Norat Sen and out of three children, other two children namely Indar Sen and Khushi Sen born on 21.08.2003 and 03.06.2005 belong to first wife Smt. Babita (now deceased). Since the case of petitioner is of re-marriage and after her marriage with Sh. Norat Sen, she gave birth only to one child, petitioner cannot be held ineligible and has denied the appointment on the ground of having three alive children post cut-off date i.e. 01.06.2002.

6. The factual aspect as detailed out and explained by the petitioner in rejoinder, in respect of three children, have not been denied/ disputed from the side of respondents.

7. In the Rajasthan Medical and Health Subordinate Service Rules, 1965, as amended vide Notification dated 16.03.2023, Rule21 (5)(iv) reads as under:-

“(iv) any candidate who performed remarriage which is not against any law and before such the remarriage he is not disqualified for appointment under this sub-rule, he shall not be disqualified if any child is born out of single delivery from such remarriage