Hemlata Bhand vs State & Ors on 12 September, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

..

S.B. CIVIL WRIT PETITION NO. 2514 / 2017.

Hemlata Bhand D/o Shri Nathu Lal Bhand, Aged About 37 Years,

R/o Negada Khera, Tehsil Sahara, District Bhilwara, Rajasthan.

—-Petitioner

Versus

1. State of Rajasthan Through the Secretary, Department of

Rural Panchayati Raj, Government of Rajasthan, Jaipur,

Rajasthan.

2. Secretary, Department of Education, Government of

Rajasthan, Jaipur, Rajasthan.

3. Director, Elementary Education, Bikaner, District Bikaner,

Rajasthan.

4. Chief Executive Officer, Zila Parishad Bhilwara, Rajasthan.

5. District Establishment Committee Through Its Chairman, Zila

Parishad Bhilwara, Rajasthan.

—-Respondents

__
For Petitioner(s) : Mr. Kailash Jangid.
For Respondent(s) : Mr. Vikas Choudhary, Associate of
Mr. S.S. Ladrecha, AAG.
__
(2 of 8)
[CW-2514/2017]

JUSTICE DINESH MEHTA
Judgment
12/09/2017

BY THE COURT:

Heard learned counsel for the petitioner and perused the

material available on record.

Issue notice. Mr. Vikas Choudhary, Associate of Mr. S.S.

Ladrecha, learned Additional Advocate General, having entered a

caveat, accepts notices on behalf of the respondents.

The present writ petition has been filed with the following

prayers:-

“// PRAYERS //

It is, therefore, humbly and respectfully prayed

that this writ petition of the petitioner may kindly

be allowed:-

A. By an appropriate writ order or direction, the

order dated 02.01.2017 (Annex-8) and any

order passed rejecting the candidature of the

petitioner for the post of Teacher Grade-III

against the category of Divorcee SC Women in

pursuance of the advertisement dated

26/27.02.2012 (Annex-2) may kindly be

quashed and set aside.

B. By an appropriate writ, order or direction, the

respondents may kindly be directed to consider

the decree of divorce dated 30.05.2015 (Annex-

(3 of 8)
[CW-2514/2017]

5) and directed to changed the category of the

petitioner and permit her to participate in the

further selection process for the post of Teacher

Grade-III (Social Studies) against the category

Divorcee SC Women instead of SC Women in

pursuance of advertisement dated

26/27.02.2012.

C. By an appropriate writ, order or direction, the

respondents may kindly be directed to afford the

appointment for the petitioner for the post of

Teacher Grade-III (Social Studies) against the

category of Divorcee SC Women, if she stands in

merit with all consequential benefits.

D. Any other appropriate writ, order or direction

which this Hon’ble Court may deem just and

proper in the fact and circumstances of the case

may kindly be passed in favour of the petitioner.

E. Writ petition filed by the petitioner may kindly

be allowed with costs.”

The petitioner had submitted her form on 24.03.2012, for

appointment on the post of Teacher Grade-III, pursuant to an

Advertisement dated 26/27.02.2012. It is an admitted case of the

petitioner that she had submitted her application form on

24.03.2012, whereas her marriage stood dissolved on

30.05.2015, on the issuance of decree of divorce.

(4 of 8)
[CW-2514/2017]

The petitioner’s case is that since the petitioner had been

granted decree of divorce, before finalisation of the Select List, her

candidature should be considered as a “Divorcee”.

The issue involved in the present writ petition is squarely

covered by the judgment dated 10.08.2017, rendered in S.B. Civil

Writ Petition No.9649/2017 titled as “Suman Choudhary Vs.

State of Rajasthan Ors.”, wherein this Court has observed as

under:-

“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
(5 of 8)
[CW-2514/2017]

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 effect from the date of the decree.”

In view of unambiguous language as contained
in subsection (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.

(6 of 8)
[CW-2514/2017]

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. 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
(7 of 8)
[CW-2514/2017]

(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
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.

(8 of 8)
[CW-2514/2017]

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.”

In view of the above and following the judgment dated

10.08.2017, referred above, the present writ petition is

dismissed.

(DINESH MEHTA), J.

/Mohan/S-67

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