- (1.) SINCE identical question is involved in both the cases, they are accordingly heard together and disposed of by the present order.
(2.) BOTH the petitioners Pyare Lal s/o Jagdish and Bhanwarpal s/o Omprakash are convicted for the offence u/S.396 IPC and undergoing their sentence. It is pertinent to mention that Pyare Lal apart from convicted u/S.396 IPC is unmarried. Both the petitioners submitted their applications for being transferred to Open Air Camp under the provisions of Rajasthan Prisoners Open Air Camp Rules, 1972 (hereinafter referred to as "the Rules, 1972 ") but being convicted u/S.396 IPC and in additional unmarried, their applications were not entertained by the authorities in view of R.3(d) r/w R.3(m) of the Rules, 1972 for the reason that there are certain ineligibilities attached to the Scheme of 1972 for such of the prisoners who have been convicted for the offence u/S.396 IPC & such of the prisoners who are unmarried, carry ineligibility to avail the benefits of the Rules, 1972. Both the petitioners earlier approached this court by filing D.B.Civil Writ Petition No.437/2013 [Pyare Lal Vs. State] and D.B.Civil Writ Petition No.438/2013 [Bhanwarpal Vs. State] and the petitions came to be decided by a common order dt.15th January, 2013 and taking note of the word "ordinarily " used in R.3 of Rules, 1972 which came to be interpreted by this court in Krishna and Anr. Vs. State of Raj. and Ors. [2004(4) WLC (Raj.) 582], it was observed that word "ordinarily " used in R.3 has been interpreted as "not necessarily " and the application of the convict cannot be outrightly rejected merely on the pretext that he has been convicted u/S.396 IPC, however, it would be open for the authorities to consider the application of the convict on merits. At the same time, as regards R.3(m) of Rules, 1972 is concerned, it came to be examined in the case of Geeta Devi Vs. State of Raj. [2012(3) WLC (Raj.) 146] and it was declared discriminatory and violative of Art.14 of the Constitution and the respondents cannot in view thereof refuse from accepting the application submitted by the convict on the premise that the prisoner is unmarried, as contemplated u/R.3(m) of Rules, 1972 and taking note of the judgments of this court in Krishna and Anr. Vs. State (supra) and Geeta Devi Vs. State (supra), the authorities have mandated to consider the applications obviously on merits without taking resort to the impediments referred to u/R.3(d) and R.3(m) of the Rules, 1972.
(3.) THE dismay of the petitioners is that when their applications again came up for consideration before the Committee under the Scheme, their applications were again came to be rejected essentially for the reason that the petitioner Pyare Lal s/o Jagdish apart from being convicted u/S.396 IPC is unmarried which is an ineligibility in view of R.3(m) of the Rules, 1972 and as regards Bhanwarpal s/o Om Prakash, his application came to be rejected on the pretext that he being convicted u/S.396 IPC which makes him ineligible to be considered for Open Air Camp in view of R.3(d) of Rules, 1972. Counsel for petitioners submits that the matter of the petitioners for transferring them to Open Air Camp was not considered by the respondents on merits in the light of the order passed by the court earlier on the writ petitions preferred by the petitioners dt.15th January, 2013 and without application of mind and considering on merits of the case regarding their transfer to Open Air Camp under the Scheme of 1972, their applications have been rejected and this action of the respondents is wholly illegal, arbitrary and violative of Art.14 of the Constitution.;