1 S.B. CIVIL WRIT PETITION NO.5415/2007. Chanchal Vishnoi Vs. R.P.S.C., Ajmer & ors. Date of Order :: 16th January 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vijay Bishnoi, for the petitioner. Mr. J.P. Joshi with Mr. Tarun Joshi, for the respondent No.1. Mr. N.M. Lodha, Additional Advocate General with Mr. S.M. Toshniwal, for the respondent No. 2 & 3. ..... BY THE COURT: The petitioner, having offered her candidature and having taken competitive examination for selection to the post Teacher Gr.III in pursuance to the advertisement dated 30.10.2006 (Annex.1) but having been informed by the communication dated 04.08.2007 (Annex.5) of cancellation of her candidature for having more than two children after 01.06.2002, has preferred this writ petition questioning the said communication dated 04.08.2007 and seeking directions against the respondents to treat her as a selected candidate as per the result of the examination taken by her. Briefly put, the petitioner has averred in the writ petition that under Note (8) of the said advertisement dated 30.10.2006, a person having more than two children after 01.06.2002 is considered ineligible for appointment in the services; that she is married to Shri Om Prakash and out of 2 the wedlock are born three children, two daughters and one son. The petitioner has referred to the birth certificates of the children, collectively placed on record as Annexure-2, and has given dates of birth of the three children as follows:- 1. Deepti (Daughter) - 13.01.2000 2. Himanshi (Daughter) - 15.02.2001 3. Rohit (Son) - 17.05.2002 According to the petitioner, she applied for the post of Teacher Gr.III in pursuance to the advertisement aforesaid and submitted application form before the last date, i.e., 16.12.2006; that she was allotted Roll No.163916, she appeared in the examination, and was declared successful standing at merit No.6914. The petitioner has stated her grievance in the manner that she received a letter from the respondent No.1 - Rajasthan Public Service Commission ('the Commission') dated 04.08.2007 (Annex.5) informing that upon scrutiny she was found ineligible for appointment for having more than two children after 01.06.2002. According to the petitioner, she was surprised with such communication and rushed to the office of respondent No.1, as she was not having more than two children after 01.06.2002. However, she was informed by the office of respondent No.1 that as per the date of birth of her children mentioned in the application form, she was not eligible for selection particularly because the date of birth of last child 3 is mentioned as '17.05.2005'. According to the petitioner, she informed the respondent Commission that such figure in the application form might have been stated for an inadvertent omission or slip of pen; and that the respondent asked the petitioner to submit the date of birth certificates of the children and her affidavit in that relation, which were submitted immediately on 10.08.2007 (Annex.7). The petitioner has alleged that she was assured by the office of respondent No.1 that she would be called for counselling within a week but was not so called and her further attempt to approach the office of respondent No.1 Commission failed. Aggrieved, the petitioner has preferred this writ petition taking the grounds that the action of the respondents in rejecting her candidature is illegal; that she is not suffering from any disqualification as stated in the advertisement (Annex.1); that she gave birth to her children before 01.06.2002 as is borne out from the certificates (Annex.2); that action of the respondent No.1 in not taking into consideration the birth certificates and her affidavit submitted along with application Annexure-7 is arbitrary, and cancellation of her candidature is violative of Articles 14 and 16 of the Constitution of India; that with cancellation of candidature, she would suffer irreparable loss and she might be declared ineligible for appointment in Government service without any 4 fault on her part except that of inadvertent mistake in filling up the form. It may be pointed out that earlier a notice was issued in the matter on 30.08.2007 and as per directions, the respondent Commission kept available for perusal the original application form of the petitioner. On 05.09.2007, while going through the form submitted by the petitioner, it was noticed that she was working as Para Teacher at the Government Upper Primary School, Band, Panchayat Samiti, Sindhari District Barmer since 07.02.2001. Thereafter, on 18.09.2007, the petitioner filed an additional affidavit in this matter placing on record photostat of ration cards prepared in the years 2002 and 2007 as Annexure-8 and Annexure-9 respectively. The petitioner has also submitted a photostat of the certificate dated 03.06.2005 to the effect that while working with Sarva Shiksha Abhiyan, Sindhari, she attended a training course from 26.05.2005 to 03.06.2005. The petitioner has also alleged that she gave birth to the third child on 17.05.2002 at her parents’ residence and until 16.05.2002, the school session was going on, the school was closed for summer vacations on 16.05.2002 and reopened only in the first week of July and, therefore, she was not required to seek any maternity leave or any other leave from the school for the purpose of delivery of the third child. 5 The respondent No.1 Commission has filed reply with the submissions that in the application form, details of the children of the applicant are required to be given in the specific column provided in that regard and therein, the petitioner has stated the dates of birth of her three children as 13.01.2000, 15.02.2001 and 17.05.2005; that when the application form was scrutinised, it was found that as per her own showing, the date of birth of third child of the petitioner was 17.05.2005 and, thus, her candidature was rightly rejected. The respondent Commission has, of course, admitted that after receiving the said letter of rejection, the petitioner did file an application stating, inter alia, that date of birth of her third child was wrongly mentioned as 17.05.2005 and his actual date of birth was 17.05.2002; and that the petitioner also filed affidavit in support of the application. It is, however, stated that the application/representation made by the petitioner was considered by the Commission but because of the reason that in the application form the date of birth of the third child of the petitioner was mentioned as 17.05.2005 in her own handwriting and the Commission had its own reservations to the credentials of the petitioner, after deliberating on the said representation, it was decided by the Commission that such documents filed by the petitioner were not conclusive on the date of birth of her third child and, therefore, her candidature was rejected. 6 A separate reply has been filed on behalf of the respondents Nos. 2 and 3 taking the objections, inter alia, that as to how and in what manner the petitioner detected the alleged mistake has not been disclosed. With reference to the certificates collectively placed on record as Annexure-2, it has been contended that all the certificates were issued on 04.12.2006 having continuous registration numbers at 119, 120 and 121. According to the said respondents, the stand now sought to be taken by the petitioner is an after-thought and the Commission has rightly not believed on this subsequent stand; and in the circumstances it remains a matter involving serious disputed questions of fact as to whether third child of the petitioner was born on 17.05.2002 or on 17.05.2005, and such disputed questions of fact are not required to be adjudicated in the writ jurisdiction. The said respondents maintain that the date of birth of third child being 17.05.2005 remains an admission of the petitioner and such an admission could be taken away only by strong evidence; but the petitioner has not been able to place any such cogent and concrete material. Learned counsel for the petitioner while pressing on the grounds stated in the writ petition submitted that petitioner's has been a case of inadvertent error of her mentioning date of birth of her third child as 17.05.2005 in place of the correct date of birth as 17.05.2002; that her candidature ought not to 7 have been rejected and even if a rejection letter had been issued, the Commission ought to have reconsidered the case when the petitioner had placed all the material with her representation. Learned Additional Advocate General has opposed the submissions made on behalf of the petitioner and contended that the birth certificates collectively placed on record as Annexure-2 were very much available with the petitioner at the time of submission of the application form and she could have supplied the same to the Commission before her candidature was rejected. Learned Additional Advocate General further submitted that the petitioner has not been able to establish by cogent evidence that third child was born to her only on 17.05.2002 and on the facts available on record, the Commission has not committed any illegality in rejecting the candidature of the petitioner. Learned counsel appearing for the respondent Commission has duly supported the communication impugned and, with reference to the application form filled in the handwriting of the petitioner, has contended that the suggestion about a different date of birth of her third child than that stated in the application form could only be rejected as an afterthought and the evidence sought to be adduced by the petitioner in support of her contentions remains uncertain and inconclusive. Having given a thoughtful consideration to the rival submissions and having examined the record of the case, this 8 Court is of opinion that though the petition definitely involves disputed questions of fact but the questions raised, and submissions made, by the petitioner appear not to have received proper attention on the part of the Commission and it appears in the interest of justice that the matter be remitted for reconsideration by the Commission. It is not in dispute that the petitioner did make representation to the respondent Commission on 10.08.2007 (Annex.7) and submitted the birth certificates of her three children and so also her affidavit. It has not been shown on record if the respondent Commission thereafter heard the petitioner in relation to the said representation or any considered order was made thereupon. During the course of submissions, learned counsel for the Commission has shown from the original record that an order was in fact made on 01.09.2007 rejecting the representation of the petitioner and has assured to place a copy thereof on the record of this petition. Even the said office-order dated 01.09.2007 does not show that the respondent Commission had properly considered the submissions of the petitioner particularly when supported by her affidavit and instead, her representation has been rejected only because the date of birth of the third child as alleged by the petitioner, of 17.05.2002, does not tally with the date of birth of the said third child as stated in the original application form, i.e., 17.05.2005. 9 The respondents contend that the admission on the date of birth of third child remains binding on the petitioner unless displaced by strong and cogent evidence. Apart from the date of birth certificates (Annex.2), the petitioner has placed on record the copies of ration card of her family (Annex. 8 & Annex. 9), and the application for ration card that was made on 15.06.2007 (Annex.10). The petitioner has stated in her additional affidavit that she attended the school (where was she working as Para Teacher) till 16.05.2002 and the third child was born on 17.05.2002 and then school reopened in the first week of July 2002 and, therefore, she was not required to take any maternity leave. The petitioner has also placed on record a certificate dated 03.06.2005 (Annex.11) issued by the Camp In-charge of Sarva Shiksha Abhiyan, Sindhari certifying that she did attend the summer teachers training from 26.05.2005 to 03.06.2005. This Court would not like to make any comment on the probative value of the pieces of the evidence suggested by the petitioner but it does appear necessary that the entire matter is given thorough and dispassionate consideration by the respondent Commission with reference to the submissions sought to be made by the petitioner and the evidence, direct or circumstantial, whatever, as sought to be produced by her; and it further appears appropriate that the Commission takes a 10 conscious decision with reasoned and speaking order, even if a brief one. In this view of the matter, without going into any other issue, it appears appropriate to remit the matter to the respondent Commission to reconsider the representation of the petitioner after permitting her to supplement the submissions and after affording a personal hearing, if so desired by the petitioner. Accordingly, this writ petition succeeds to the extent indicated above and the matter stands remitted to the respondent Commission to take decision afresh on the representation of the petitioner after permitting her to make further submissions in writing and so also after hearing her personally, if so desired by her. For the purpose of carrying out the requirements of this order, the petitioner shall appear before the Commission on 25.01.2008. Looking to the urgency of the matter, the Commission would be expected to explore the possibility of deciding the matter at the earliest. No costs. (DINESH MAHESHWARI), J. MK