Jyoti Singhal vs State Of Rajasthan & Ors on 9 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.

..

S.B. CIVIL WRIT PETITION NO. 14372 / 2017.

Jyoti Singhal D/o Narendra Kumar Singhal, Aged About 30 Years,

R/o Dwarikadeesh Ki Gali, Deeg, Bharatpur (Raj.).

—-Petitioner

Versus

1. State of Rajasthan Through the Secretary, Department of

Rural Panchayati Raj, Government of Rajasthan, Jaipur,

Rajasthan.

2. The Secretary, Department of Education Government of

Rajasthan, Jaipur, Rajasthan

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

Rajasthan.

4. The Chief Executive Officer, Zila Parishad Jodhpur, District

Jodhpur.

5. The District Establishment Committee, Jodhpur, District

Jodhpur.

—-Respondents

__
For Petitioner(s) : Mr. Tanwar Singh Rathore.
For Respondent(s) : Mr. Vikas Choudhary, Associate of
Mr. S.S. Ladrecha, AAG.
__
(2 of 9)
[CW-14372/2017]

JUSTICE DINESH MEHTA
Judgment
09/11/2017

BY THE COURT:

The petitioner has preferred the present writ petition with

the following prayers:-

“// PRAYERS //

It is, therefore, humbly and respectfully prayed

that this writ petition of the petitioner may kindly be

allowed:-

i) By an appropriate writ, order or direction, any

order denying the selection and appointment of

the order dated 19.9.2017 for the post of

Teacher Grade-III Level-II subject Sanskrit

Divorcee Category in pursuance of the

advertisement dated 11.08.2013 (Annex-2) may

kindly be quashed and set aside.

ii) By an appropriate writ order or direction, the

respondents may kindly directed to permit the

petitioner in the further selection process and

provide the appointment on post of Teacher

Grade-III Level-II subject Sanskrit Divorcee

Category (Class VI to VIII) as per the marks

secured by him in Teacher Grade III Level II

Examination, 2013 for selection in pursuance of

the advertisement dated 11.08.2013 with all

consequential benefits.

(3 of 9)
[CW-14372/2017]

iii) By an appropriate writ order or direction, the

respondents may kindly be directed to consider

for the petitioner divorcee decree issued by on

dated 24.9.2013 and given appointment for the

post of Teacher Grade III Level II Subject

Sanskrit category divorcee;

iv) Any other appropriate writ, order or direction

which this Hon’ble Court may deem just and

proper in the facts and circumstances of the

case may kindly be passed in favour of the

petitioner.

v) Writ petition filed by the petitioner may kindly

be allowed with costs.”

Pursuant to the Advertisement dated 11.08.2013 for Teacher

Grade-III Recruitment-2013, the petitioner had submitted her

application form on 04.09.2013, showing her category as

“Divorcee”, however, her decree of divorce came to be issued on

24.09.2013, admittedly, after submitting the application form and

cut-off date.

At the outset, Mr. Vikas Choudhary, Associate of Mr. S.S.

Ladrecha, learned Additional Advocate General, submitted that the

controversy involved in the present writ petition is squarely

covered by a decision dated 10.08.2017 rendered by this Court, in

the case of “Suman Choudhary Vs. State of Rajasthan Ors.”,

wherein this Court has held as under:-

(4 of 9)
[CW-14372/2017]

“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
(5 of 9)
[CW-14372/2017]

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
(6 of 9)
[CW-14372/2017]

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. 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
(7 of 9)
[CW-14372/2017]

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
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
(8 of 9)
[CW-14372/2017]

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.

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
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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, the present writ petition is dismissed,

while following the judgment dated 10.08.2017, rendered in the

case of Suman Choudhary (supra).

(DINESH MEHTA), J.

/Mohan/S-287

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