Suman Choudhary vs State Of Rajasthan & Ors on 10 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9649 / 2017
Suman Choudhary D/o Shri Ramdayal Choudhary, Aged About 23
Years, R/o Plot No. 14, Veer Tejaji Nagar, Salawas Road Basani-
IInd Phase, Jodhpur, Dist. Jodhpur, Rajasthan.

—-Petitioner
Versus

1. State of Rajasthan Through the Secretary, Rural and Panchayati
Raj Department, Government of Rajasthan, Secretariat, Jaipur.

2. Director, Elementary Education, Government of Rajasthan,
Bikaner.

3. Zila Parishad Jalore Through Its Chief Executive Officer, District
Jalore.

—-Respondents
__
For Petitioner(s) : Mr. Sajjan Singh Rathore
__
JUSTICE DINESH MEHTA
Judgment
REPORTABLE
10/08/2017

The petitioner has filed the present writ petition inter alia

challenging the communication dated 5.7.2017 whereby the

petitioner’s candidature for appointment on the post of Teacher

Grade-III, Level-I as a divorcee’ has been rejected by the

respondents.

Shorn of unnecessary details, the facts necessary for the

adjudication of the present writ petition are that the petitioner,

married to one Pukhraj Choudhary, was having requisite

qualification of BSTC and REET for appointment on the post of

Teacher Grade-III, Level-I.

(2 of 10)
[CW-9649/2017]

An advertisement dated 6.7.2016, came to be issued,

inviting applications for the post of Teacher Grade-III. The

petitioner submitted her application form on 25.7.2016, showing

herself as a divorcee’ and staked her claim against the seats

reserved for divorcee’. Petitioner’s such claim of a divorcee’

woman was based on the fact that the petitioner had submitted a

petition for mutual divorce under Section 13-B of the Hindu

Marriage Act, 1955 on 22.7.2016.

The short listed candidates were called for document

verification on 22.06.2017/23.06.2017. In the meanwhile, the

petitioner’s petition for seeking separation by mutual consent

came to be decided and a decree of divorce under Section 13-B of

the Hindu Marriage Act, 1955 came to be passed on 27.6.2017 by

Family Court No.1, Jodhpur.

The petitioner thereafter came to receive a notice dated

5.7.2017 wherein her application form was proposed to be

rejected as the petitioner had not furnished the decree of divorce

before the last date of submitting the application form i.e. on

1.8.2016.

The petitioner filed a reply dated 10.07.2017 in response to

the said notice and submitted that though she had applied for

judicial separation in the month of July, 2016, but the decree of

divorce has now been issued on 27 th June, 2017. Along with the

said reply dated 10.07.2017, the petitioner submitted a copy of

the decree of divorce dated 27.6.2017. The respondents, not

satisfied with the reply of the petitioner, have rejected her

candidature as a divorcee, vide their order dated 05.07.2017
(3 of 10)
[CW-9649/2017]

stating that the petitioner should have a decree on the last date of

submitting the application form.

The present petition lays a challenge to the order dated

5.7.2017 essentially on the footing that, since on the date of

submitting the application form, the petitioner had applied for

divorce before the competent Family Court, the petitioner’s

candidature should be considered as a divorcee’.

Mr. Sajjan Singh Rathore, learned counsel for the petitioner

invited the attention of this Court towards Clause ‘ c’, ‘l’ and

clause (X) of ‘Li”Vhdj.k’ as provided in the advertisement dated

06.07.2016, which reads as under :-

^^c½- efgykvksa gsrq vkjf{kr n’kkZ;s x;s inksa esa ls fu;ekuqlkj 8
izfr’kr in fo/kok ,oa 2 izfr’kr in ifjR;Drk ¼fofNUu fookg
efgyk½ ds fy;s vkjf{kr gSA ;fn i;kZIr fo/kok vH;kFkhZ miyC/k ugha
gksrh gS rks fo/kok ds fy, vkjf{kr in dks mlh Js.kh dh ifjR;Drk
¼fookg fofPNUu efgyk½ ls Hkjk tk;sxkA blh izdkj ;fn i;kZIr
ifjR;Drk vH;FkhZ miyC/k ugha gksrh gS rks buds fy, vkjf{kr in dks
mlh Js.kh dh fo/kok efgyk ls Hkjk tk;sxkA fdlh oxZ ¼lkekU;@v-

tk-@v-t-tk-@fio@fofio½ dh ik ,oa mi;qDr fo/kok@ifjR;Drk
efgyk ¼fofNUu fookg efgyk½ vH;FkhZ miyC/k ugha gksus ij ml in
dks mlh oxZ dh @esa ojh;rk izkIr vU; efgyk vH;fFkZ;ksa ls Hkjk
tk;sxkA
l½- eqfLye ifjR;Drk efgykvksa ds ekeys esa U;k;ky; dh rykd
dh faMØh ds vykok rykdukek tkjh djus gsrq vf/kd`r dkth }kjk
tkjh rykdukek Hkh ekU; gksxk ijUrq bl ckcr~ efgyk dks lekt ds
nks izfrf”Br O;fDr;ksas dk LVkEi isij ij ‘kiFk i Hkh izLrqr djuk
gksxk tks muds rykd dks izekf.kr djsa ,oa lkFk gh efgyk Lo;a dks
Hkh bl laca/k esa Lo;a dk ‘kiFk i Hkh izLrqr djuk gksxkA
(4 of 10)
[CW-9649/2017]

¼x½ v-tk-@v-t-tk-@fi-o-@fo-fi-o-@fo’ks”k ;ksX;tu dk izek.k
i vkWuykbu ,Iyhds’ku QkeZ esa izkfIr dh vafre fnukad ds iwoZ dk
tkjh gksuk pkfg,] vU;Fkk vafre fnukad ds ckn tkjh gq, izek.k iksa
ds vH;fFkZ;ksa dks oxZ fo’ks”k dk ykHk foKkfir inksa gsrq ns; ugha gksxk
vkSj uk gh bl laca/k esa fdlh izkFkZuki ij fopkj fd;k tkosxkA**

While navigating the Court through the aforesaid clauses of

advertisement dated 6.7.2017, learned counsel for the petitioner

contended that in case of reservation vis-a-vis General, SC/ST,

OBC and SBC, there was a clear stipulation that the candidates

should have a certificate issued on a date, prior to the last date of

submitting the application form, whereas there was no such

condition when it comes to divorcee women. He further pointed

towards clause ‘l’ of aforesaid ‘Li”Vhdj.k’ in relation to Muslim

Divorcee, which stipulates that on the last date of filling up the

application form, the candidate should either furnish decree or a

‘Talaqnama’ issued by ‘Kazi’, in which also there is no stipulation

for any last date of issuance of ‘Talaqnama’.

While comparing Clauses ‘c’, ‘l’ and (X), counsel for the

petitioner submitted that the terms of the advertisement were

very clear and for the categories, the respondents wanted a

certificate of a prior date than the last date of submitting the

application form, such condition was clearly mentioned in the

advertisement. However, in case of ‘divorcee women’, there was

no such stipulation, hence, the petitioner’s candidature as a

divorced woman cannot be rejected merely because the decree of

divorce has been issued subsequent to the last date of submitting
(5 of 10)
[CW-9649/2017]

the application form.

He contended that the order impugned is based on the

clarification dated 30.6.2017 issued by the Director, Elementary

Education, which provides that on the last date of submitting the

application form i.e. 1.8.2016, the divorcee woman should have a

decree of divorce, failing which she would not be called for

counselling. In relation to the clarification dated 30.6.2017, Mr.

Rathore had twofold arguments; firstly he contended that the

clarification which has been issued on 30.6.2017, cannot be

applied retrospectively with respect to the advertisement, which

had been issued on 6.7.2016; and secondly he contended that if,

it is held that the said clarification is applicable to the

advertisement under consideration, the clarification dated

30.06.2017 itself is liable to be declared arbitrary.

Counsel for the petitioner has relied upon a Division Bench

judgment dated 30.08.2013 rendered in DB Civil Special appeal

No.82/2013 (State of Rajasthan Ors. Vs. Ms. Jamna Rajpurohit),

wherein the Division Bench of this Court has held that the

candidate having attained widowhood even after the last date of

submitting application form should be considered in widow

category and should be given benefit of reservation under the said

category.

With the help of aforesaid judgment, learned counsel for the

petitioner contended that if on becoming widow after the date of

advertisement, a candidate can be given benefit of reservation

available for widow, the petitioner’s case is no worse and her

candidature too is required to be considered as a candidate hailing
(6 of 10)
[CW-9649/2017]

from the divorcee’ category.

I have heard learned counsel for the petitioner and

considered the material available on record. The facts are not in

dispute that on the date of submitting the application form on

25.7.2016 or till last date of submitting the application form i.e.

01.08.2017, the petitioner’s marital status was that of a married

woman. It is a different aspect of the matter that at the time of

submitting the application form, the petitioner had applied for

judicial separation by way of filing divorce petition under Section

13-B of the Hindu Marriage Act, 1955 on 22.7.2016, just three

days prior to submitting the application form. Nevertheless

merely because a petition for divorce has been filed, the petitioner

cannot be treated to be a divorcee on the date she submitted her

form, by any stretch of imagination or by any extended statutory

interpretation.

As per Section 13-B of the Hindu Marriage Act, a marriage

shall stand dissolved only with effect from the date of decree. It

will not be out of place of reproduce sub-section (2) of Section 13-

B of the Hindu Marriage Act, which reads thus :-

“(2) On the motion of both the parties made not
earlier than six months after the date of the
presentation of the petition referred to in sub-section
(1) and not later than eighteen months after the said
date, if the petition is not withdrawn in the meantime,
the court shall, on being satisfied, after hearing the
parties and after making such inquiry as it things fit,
that a marriage has been solemnized and that the
averments in the petition are true, pass a decree of
divorce declaring the marriage to be dissolved with
(7 of 10)
[CW-9649/2017]

effect from the date of the decree.”

In view of unambiguous language as contained in sub-

section (2) of Section 13-B of Hindu Marriage Act, the petitioner’s

marriage has dissolved w.e.f. 27.6.2017, when the decree of

divorce has been issued. As such the petitioner can be treated to

be a divorcee’ only w.e.f. 27.6.2017. The petitioner in such

circumstances cannot be said to be or treated to be a divorcee, on

the date of submitting the application form.

The matrimony comes to an end only on the issuance of a

decree of divorce and till then, husband and wife continues to

remain in the wedlock, despite all the differences and disputes.

The argument of Mr. Sajjan Singh based on the language and

expression used in various clauses of ‘Li”Vhdj.k’ reproduced earlier,

to the effect that the respondents have specified that the caste

certificate should be issued on the date prior to the last date of

submitting applications, but have not provided such condition in

relation to divorce that her decree of divorce should precede the

date of advertisement, is untenable and hence rejected. His

endeavour that such absence of stipulation should be read in

petitioner’s favour is fallacious and baseless.

The condition of being a candidate belonging to a particular

caste is by virtue of birth and the certificate is a mere

documentary proof. Whereas the divorce is a judicial process and

the marriage gets dissolved only on passing a decree under the

provisions of Hindu Marriage Act, 1956. The incidence of divorce

or status of divorcee is attained on the dissolution of marriage.

(8 of 10)
[CW-9649/2017]

The decree of divorce is not a certificate, but a foundation of

divorce. A person would continue to belong to a particular caste

or class, notwithstanding a caste certificate, but a person cannot

be called a divorcee, unless a decree of divorce has been issued.

As such there was no requirement of providing that the decree of

divorce should be of a prior date. Same is the situation of

widowhood. Conceiving such an expression much less providing,

would be preposterous, ‘that in case of a widow, the death

certificate of husband of a candidate should be of a prior date than

the date of advertisement.

As far as the Division Bench judgment of this Court dated

30.08.2013 in case of Ms. Jamna Rajpurohit (supra) is concerned,

suffice it to observe that the Division Bench has invoked its extra

ordinary equitable jurisdiction by holding that unforeseen

circumstance of death of a person is a force major or an ‘act of

God’ and looking to the intention of the rule making authority for

providing reservation to the destituted women, this Court had

directed to consider the said petitioner as a widow. Whereas in

the present case, judicial separation cannot be treated to be a

‘force major’ or an ‘act of God’. Apart from this, the Division

Bench judgment dated 30.08.2013 has been held to be per

incurium by another Division Bench of this Court in its judgment

dated 09.09.2016 rendered in DB Civil Special Appeal (Writ)

No.611/2016 in the matter of State of Rajasthan Ors. Vs.

Jagdish Prasad Ors. Relevant part of the said judgment is

reproduced hereunder :-

“In Jamna Rajpurohit (supra) significantly the
(9 of 10)
[CW-9649/2017]

Division Bench itself observed that permitting change
of category after the last date for submission of
applications would make the selections an unending
process and yet proceeded to direct it to be done on
basis of sympathy. Jamna Rajpurohit (supra) has
therefore to be held as per incuriam. The order under
appeal based upon the same is also held to be
unsustainable.”

It is settled proposition of law that candidature and eligibility

of an incumbent is required to be decided on the date of

advertisement. Until and unless the terms of advertisement

notification permits consideration of subsequent event into

account, the same cannot be claimed as a matter of right. The

undisputed facts obtaining in the present case are that on the date

of submitting the form, petitioner did not fall in the ambit of

divorcee and as such she cannot be considered as a candidate

belonging to ‘Divorcee Women Category.

Somewhat similar view has been taken by this Court in

judgment dated 13.07.2017 rendered in SB Civil Writ Petition

No.5230/2017 (Ms Richa Sharma Vs. State of Raj. Ors.),

wherein petitioner’s request to change her category from Female

General to Female Divorcee was rejected. The relevant part of the

judgment reads thus :-

“Having considered the arguments of Mr. Jain
and on perusal of the factual matrix, this Court finds
no substance in the petition and force in the
arguments raised by the petitioner.

(10 of 10)
[CW-9649/2017]

It is not in dispute that on the date of filling the
form, the petitioner’s status was that of a married
woman. It is a different aspect of the matter that the
petitioner subsequently became a divorcee. But such
change of status took place on 01.07.2016, much
after the date of filling of the form. Even the petition
for dissolution of marriage, which culminated into a
final decree of divorce on 28.01.2017, was filed later
in point of time.”

In light of the discussion above, this Court is of the

considered view that the petitioner having applied for divorce,

cannot be treated to be a divorcee’ until and unless a decree of

divorce by a competent court is passed. Since the petitioner’s

marriage stood dissolved w.e.f. 27.6.2017, the petitioner cannot

claim a right of consideration as a divorcee’, pursuant to her

application submitted on 25.07.2016.

There is no merit in the petitioner’s stand and force in her

counsel’s arguments. The writ petition is thus rejected.

(DINESH MEHTA) J.

Arun, PS/S-170

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