Rajasthan High Court – Jaipur
Sunita Dhawan W/O Late Sh. Ashok Lakwal vs State Of Rajasthan on 24 January, 2025
Author: Sameer Jain
Bench: Sameer Jain
[2025:RJ-JP:3012]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 3742/2019
Sunita Dhawan W/o Late Sh. Ashok Lakwal, Aged About 45
Years, Resident Of Plot No. 752, Pragati Nagar, Kotra, Pushkar
Awasiya Yojna, Pushkar Road, Ajmer.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Department Of
Secondary Education, State Secretariat, Jaipur.
2. Rajasthan Public Service Commission, Through Its
Secretary, Jaipur Road, Ajmer.
----Respondents
For Petitioner(s) : Mr.Sunil Samdaria with
Mr.Arihant Samdaria
For Respondent(s) : Mr.Avinash Choudhary with
Mr.Rahul Gupta
Mr.Aditya Raj Dhaka for
Mr.B.S. Chhaba, AAG
Mr.Amit Lubhaya
HON'BLE MR. JUSTICE SAMEER JAIN
Judgment
Reserved on :: 13/01/2025
Pronounced on :: 24/01/2025
1. The present petition is filed assailing the letter dated
11.12.2018 whereby, respondents have declared the candidature
of the petitioner as ineligible, for the reason that she has more
than two surviving children on or after 01.06.2002 and following
prayers have been made: –
"(i) To issue an appropriate
writ/order/direction quashing and setting
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (2 of 10) [CW-3742/2019]
aside the letter/order dated 11.12.2018
(Annexure - 15) whereby petitioner widow
has been declared ineligible for post of
School Lecturer.
(ii) To issue an appropriate
writ/order/direction directing the
Respondents to appoint petitioner-widow as
School Lecturer forthwith with all
consequential benefits with interest @ 18%
p.a.”
2. Shorn of the unnecessary details, the essential material
facts and particulars for adjudication of the controversy are that
the petitioner, a women candidate, in pursuance of the
advertisement dated 16.10.2015, published by Rajasthan Public
Service Commission (for short, ‘RPSC’) inviting applications from
eligible candidates, for appointment on the post of School
Lecturer; submitted her application under SC- Widow category.
The petitioner duly qualified the examination securing merit.
3. Thereafter, successful candidates were required to
submit an application form, furnishing necessary details, in order
to determine eligibility. Consequently, on scrutiny of the
application form of the petitioner, the RPSC, declared her
candidature as ineligible vide letter dated 11.12.2018; for having
more than two surviving children on or after 01.06.2002 stating
that as per terms and conditions, specifically stipulated in the
advertisement, rendering such a candidate ineligible for
appointments.
4. Learned counsel for the petitioner fairly admitted the
fact that the petitioner is mother to four children, one of whom is
disabled. However, the petitioner challenged the validity of letter
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (3 of 10) [CW-3742/2019]
dated 11.12.2018 contending that the said letter contravenes the
Notification dated 28.02.2011. It was further submitted that,
pursuant to the powers conferred under Article 309 of the
Constitution of India, the Government introduced a proviso in the
said notification stipulating that while determining the number of
children of a candidate, a child born from an earlier delivery and
having a disability shall not be included in the count.
5. Furthermore, it was submitted that the respondents
have acted in a discriminatory manner by refusing to consider the
petitioner’s candidature under the widow category. It was
contended that while widows applying under the Compassionate
Appointment framework were granted relaxation from the two-
children norm, the petitioner, despite securing merit in the widow
category, is arbitrarily denied similar relaxation, amounting to
unequal and discriminatory treatment. Additionally, it was
submitted that the widows seeking regular appointment were not
extended the same relaxation, thereby highlighting discriminatory
application of the governing Rules and statutes.
6. Further, it was submitted that widows seeking regular
appointment on merit, stood on a better footing than widow
seeking Compassionate Appointment, therefore, the petitioner
should not be discriminated against while granting relaxation qua
two child norm.
7. Additionally, during the currency of litigation,
Government amended various provisions of service rule vide
Rajasthan Various Service (Amendment) Rules, 2023 (for short
“Rules of 2023”) dated 16.03.2023, whereby relaxation which was
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (4 of 10) [CW-3742/2019]
restricted to widows covered under compassionate appointment,
has been extended to all widows including the divorcee women.
8. Per contra, learned counsel for the respondents had
submitted that interpretation of the Rule 21(4) of the Rules of
1970 and allied amended provisions, clearly implies that candidate
having more than two surviving children on or after 01.06.2002,
shall be declared ineligible for the appointment.
9. It was further submitted that even if one of the
petitioner’s children were to be declared disabled and excluded
from the calculation of total children, the number of children
would still not decrease to two, as the total number of children
would remain three.
10. It was further submitted that the respondents had
acted within the confines of the relevant rules and conditions as
stipulated in the advertisement and had rightly rejected the
candidature of the petitioner in accordance with the then-existing
recruitment rules.
11. Lastly, it was submitted that the recruitment exercise
and selection process qua the said post is concluded.
12. Heard and considered.
13. Considering the arguments advanced by the learned
counsel for the parties; upon assiduously scanning the material
available on record, this Court has noted the following material
facts: –
13.1 That the petitioner has secured requisite merit under
Widow (SC) category.
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (5 of 10) [CW-3742/2019]
13.2 That the candidature of the petitioner is rejected on
account of having more than two surviving children on or after
01.06.2002.
13.3 That amendment introduced vide notification dated
16.03.2023 is a beneficial amendment and hence has to be
liberally and beneficially interpreted.
13.4 That petitioner approached the Court sans any delay
invoking the writ jurisdiction as enshrined under the provisions of
Article 226 of the Constitution of India.
Observation: –
14. This Court upon observing the above-stated material
facts, is of the opinion that the said amendment reflects a
progressive and inclusive approach. By removing the earlier
restriction that was limited to compassionate appointments under
specific rules, the amendment provides a broader and more
equitable interpretation, aligning with the welfare objectives of
such provisions. Judicial bodies in various circumstances, have
sought to make the object of such enactments effective and
ensure that the intended benefits reach those who are in need.
15. The petitioner, as the sole bread-earner of her family,
shoulders the responsibility of supporting and upbringing of four
children, including one with a disability. Her status as a member of
the Scheduled Caste (SC) community further highlights the
systemic barriers she faces, warranting judicial intervention to
address her unique hardship. The petitioner’s circumstances
exemplify the need for equitable and inclusive consideration in
public employment opportunities.
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (6 of 10) [CW-3742/2019]
16. Exercising its powers under Article 226 of the
Constitution of India, this Court considers it imperative to depart
from rigid procedural adherence in the interest of justice. Article
16 of the Constitution of India guarantees equality of opportunity
in public employment and prohibits discrimination on various
grounds, including caste and sex. The petitioner’s exclusion based
on procedural requirements, despite her significant socio-
economic challenges, undermines these constitutional guarantees
and necessitates judicial redress. Additionally, Hon’ble Apex Court
in Common Cause v. Union of India reported in AIR 2018
SUPREME COURT 1665, has held that under Article 226 of the
Constitution, the High Court is inherited with the power and
jurisdiction to issue appropriate writs in the nature of mandamus,
certiorari, prohibition, quo warranto, and habeas corpus for the
enforcement of fundamental rights or for any other purposes.
Thus, the High Court has jurisdiction not only to grant relief for
the enforcement of fundamental rights but also for ‘any other
purpose,’ which would include the enforcement of public duties by
public bodies. This observation emphasizes the broad scope of the
High Court’s powers under Article 226, enabling it to address not
only violations of fundamental rights but also to ensure that public
authorities fulfill their duties.
17. The rejection of the petitioner’s candidature on the sole
ground of having more than two children is contrary to Articles 14
and 16 of the Constitution of India, which ensure equality and
non-discrimination. The petitioner’s marginalized status and
meritorious standing under the widow category demand equal
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (7 of 10) [CW-3742/2019]
treatment under the law. Denying her claim disregards the
principles of fairness and perpetuates systemic inequities,
especially for women from vulnerable communities.
18. The petitioner’s role as the sole caregiver to a disabled
child further underscores her entitlement to special consideration.
The principles of substantive equality require the state to
recognize and accommodate the unique challenges faced by
individuals in disadvantaged positions. Article 39 of the Directive
Principles of State Policy obligates the state to promote justice and
welfare, especially for women and children, reinforcing the
petitioner’s claim to equitable treatment.
19. While the petitioner did not apply under the specific
framework of compassionate appointment, her exclusion from the
widow category due to the proviso restricting exceptions to those
under compassionate appointments must be scrutinized for its
reasonableness. The purpose of appointment and akin welfare-
oriented provisions is to address systemic inequities and ensure
substantive equality. Excluding widows facing significant socio-
economic hardships, such as the petitioner, undermines the
broader welfare objectives of such provisions.
20. A restrictive interpretation of the proviso, limiting its
benefits only to widows applying under the compassionate
appointment framework, is unjustified and fails to account for the
broader principles of equity and inclusivity enshrined in the
Constitution. Welfare measures must be interpreted to achieve
their intended objective of alleviating hardship and promoting
social justice. The petitioner’s exclusion, despite her evident need
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (8 of 10) [CW-3742/2019]
and merit, perpetuates indirect discrimination and goes against
the spirit of the Constitution.
Conclusion: –
21. In summation of the forgoing facts and circumstances
and the observations made, this Court deems it appropriate to
acknowledge the fact that the instant matter is ideal for this Court
to invoke its inherent jurisdiction under the provisions of Article
226 of the Constitution of India; nevertheless the preamble of our
Constitution explicitly clarifies the ideology of our State i.e.
Socialist, thence it is the duty of the State to act as a guardian for
its citizen and to safeguard their lives and ensure sufficient means
of earning.
22. Withal, the recent amendment made in the Rules of
2023 leaves no scope of discrimination among widow, divorcee,
alike persons, applying for appointment.
23. Consecutively, taking note of the fact that the petitioner
herein belongs to an underprivileged community (SC), is the sole
bread-earner who is responsible for upbringing and nourishment
of four children – two daughters and two sons (wherein one of the
male child is specially abled) and acknowledging the fact that the
petitioner had approached the concerned authorities/ this Court
pronto, without any delay with clean hands, this Court adopting a
sympathetic approach towards the petitioner and her novice
children and upon making a cumulative understanding of the
duties entrusted by the Constitution of India, deems it appropriate
to allow the instant petition.
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (9 of 10) [CW-3742/2019]
24. This Court while interpreting the black letters of law, is
also guided by its conscience and a sense of justice, and
considering that there is no evidence on record to suggest that the
petitioner is financially stable, and in fact, it appears that
petitioner has no other relative and she is on her own, and has no
other means to earn a livelihood, this Court is taking a merciful
approach and sympathetic approach, recognizing that if the Court
does not act a guardian to the petitioner, a poor lady along with
her children shall be forced to be hand to mouth. Nevertheless,
the petitioners’ financial instability would lead to irreparable
hardship, and thus, exercising its discretion, ensuring that justice
is not only done but also seen to be done, and the petitioners’
vulnerable condition is alleviated.
25. This Court as representative of the Sovereign as parens
patriae has adopted the same standard that a reasonable and
responsible parent would do. In many cases, various High Court’s
have exercised their jurisdiction under Article 226 of Constitution
of India and granted relief, one of the case is Adil Sajeer Ansari
vs University of Delhi; (2021) 2 HCC Del 272, wherein Delhi
High Court has exercised it jurisdiction and granted relief to the
petitioner therein.
26. Accordingly, the respondents are directed to consider
the application of the petitioner and grant appointment to her on
the said post under her respective category without further ado,
and benefits qua the said appointment shall not accrue
retrospectively. Notwithstanding anything above, it is made clear
that the instant judgment is passed considering the peculiar facts
(Downloaded on 27/01/2025 at 10:21:20 PM)
[2025:RJ-JP:3012] (10 of 10) [CW-3742/2019]
and circumstances of the instant matter and henceforth, ought not
to be treated as a precedent. No orders are made as to cost.
Pending applications, if any, shall stand disposed of.
(SAMEER JAIN),J
Preeti Asopa
(Downloaded on 27/01/2025 at 10:21:20 PM)
Powered by TCPDF (www.tcpdf.org)
[ad_1]
Source link