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