Disqualification for appointment to posts under the State.
Khumana Ram Jangid
(Querist) 24 June 2014
This query is : Resolved
The Governor of Rajasthan, in exercise of powers under proviso to Article 309 of the Constitution, has promulgated a rule to the effect that no person who has more than two children on or after 01.06.2002, shall be eligible for appointment to any post under the State.
Article 16 cl. (1) of the Constitution mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. None of the various clauses of Art. 16 permits disqualification for appointment on the basis of number of children a citizen has.
Cl. (2) of Art. 13 provides that the State shall not make any law which takes away or abridges any fundamental right and any law made in contravention of this clause shall, to the extent of contravention, be void. Undisputedly, Governor is "State" and rule made under the proviso to Art. 309 is law within the meaning of clause(3) of Art. 309.
Is the rule constitutionally valid?
Anirudh
(Expert) 24 June 2014
What Rajasthan Governor has promulgated is nothing new or the first thing in the country. If you are so interested to know the legality and constitutionality, you would be better advised to do research on the topic and to go through a plethora of judicial decisions in the matter.
Rajendra K Goyal
(Expert) 25 June 2014
If you are grieved with the rule, may challenge its legality.
Khumana Ram Jangid
(Querist) 26 June 2014
Respected Sri Anirudh ji. A similar provision finds place in Panchayat and Municipal laws of various States debarring a candidate from contesting elections to these local bodies if he has more than two children on or after the date specified in the respective legislation. Such a provision has been upheld by the Supreme Court in Javed vs State of Haryana (2003) 8 SCC 369. But in the very same judgment the Supreme Court has observed that right to contest an election is not a fundamental right; that it is a right created by statute and a statute granting such right can also prescribe conditions subject to which such right can be enjoyed. So the situation is different where fundamental right is involved. Here is a matter where fundamental right is directly involved. The only constitutional provision allowing the State to tamper with fundamental rights is cl. (4) of Art. 13 which says that nothing in Art. 13 shall apply to an amendment of the Constitution made under Art. 368. That comes to this that a fundamental right can be taken away or abridged by the State only through an amendment of the Constitution made in accordance with the provisions of Art. 368 which only the Parliament is competent to do. The question is whether Governor of a State, in exercise of power under proviso to Article 309, is competent to achieve the same result which can be achieved only bythe Parliament by way of amendment of the Constitution after obtaining the consent of such majority of the MPs as prescribed in Art. 368 ? Can proviso to Art. 309 be used as a substitute to the provisions of Art. 368 ? In D. C. Wadhwa vs. State of Bihar AIR 1987 SC 579 the Apex Court has ruled that a Constitutional authority cannot do indirectly what it is not permitted to do directly and adoption of any subterfuge would clearly be a fraud on the Constitution.
Anirudh
(Expert) 26 June 2014
Dear Mr. Jangid,
Can you please indicate about which and whose fundamental right that you are talking about?
T. Kalaiselvan, Advocate
(Expert) 27 June 2014
This is not a legal query raised by a distressed person, this is something of academic interest which deserves to be discussed and debated at a different forum. If you are aggrieved by the Rajasthan government's decision, you may move a PIL seeking relief against the illegality and the harmful law promulgated and enacted contradicting the provisions of fundamental rights of citizen of the country.
Khumana Ram Jangid
(Querist) 05 July 2014
Respected Shri Anirudh ji and Shri Kalaiselvan ji,
This is a query concerning none else but my own daughter. She is MA (Sociology), M.Phil.(Sociology), throughout first class,and also NET and SLET qualified for the post of Lecturer in Sociology. She has two daughters and one son. The son is born after the cut-off date. She had earlier cleared an examination held by Rajasthan Public Service Commission for a teaching post but was not called for interview on the ground of having more than two children. She has again applied for a teaching post and has resolved to fight for her rights. Presently she is employed as a Lecturer in Sociology in a private college situated 80 kms away from home commuting to and fro daily. Her husband is, unfortunately, not in any gainful employment and the burden of bringing up the children and educating them is on her shoulders.
I also raised a grievance against the rule in question with the State Government and the Government has replied that the rule is a result of population policy of the Government. The most troubling part of the situation is that while studying the matter, I found that the Rajasthan High Court has also incorporated similar rules disqualifying a person for appointment to its staff or to Rajasthan Judicial Services on the ground of having more than two children after a specified date. That's how the need for seeking opinion of brother advocates arose.
Anirudh
(Expert) 05 July 2014
Dear Mr. Jangid,
I am on a limited point. You said that the promulgation by the Governor has adversely affected the fundamental right.
You have to very clearly indicate which fundamental right that you are having in mind. Depending upon that answer can be given to your query.
Khumana Ram Jangid
(Querist) 05 July 2014
Respected Shri Anirudh ji,
I am anchoring upon fundamental right of equality of opportunity to all citizens for appointment to any post under the State envisaged under clause (1) of art. 16 of the Constitution.
venkatesh Rao
(Expert) 11 September 2014
Such rule is essentially ultra vires. Small family norm is persuasive in nature and not mandatory. There is no law in our land which penalises a citizen who begets more children in any way. The Govt might have made some posts reserved for those who have got 2 or less children or else, may award an increment for those govt. servants who undergo sterilization with only two or less children. Then it would be perfectly constitutional.
Khumana Ram Jangid
(Querist) 11 September 2014
Exactly. Thank you so much for your kind response.