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Hema vs State Of Raj on 6 April, 2018

S.B. Civil Writ Petition No. 5472 / 2015
Hema D/o Sh. Karan Singh, aged about 35 years, resident of Ram
Nagar, Bhadwasia, Jodhpur.

State of Rajasthan through the Secretary, Department of
Information Technology and Communication, Jaipur.

For Petitioner(s) : Mr. M.S. Purohit
For Respondent(s) : Mr. Mukesh Dave

1. The petitioner has preferred this writ petition under

Article 226 of the Constitution of India claiming the following


“i) The respondents be directed to consider the case of
the petitioner for appointment on the post of
Informatics Assistant under the OBC Female category
or in the alternative against divorcee quota with all
consequential benefits.

ii) Any other appropriate writ, order or direction which
this Hon’ble Court considers just and proper in the
facts and circumstances of the present case, may
kindly be passed in favour of the petitioner.

iii) Cost of the writ petition may kindly be awarded to
the petitioner.”

2. The petitioner applied for the post of Informatics

Assistant, pursuant to the advertisement Annexure-1 dated
(2 of 6)

25.04.2013. The petitioner filled the application form in the

category of OBC (Non-Creamy Layer); apart therefrom, the

petitoner, on account of pendency of the divorce petition in the

competent court, has also mentioned herself to be falling under

the Divorcee category. However, the petitioner got the divorce

decree only on 05.08.2014, and was provisionally selected, after

undergoing the selection process, by the respondents, and she

was also called upon for her documents verification on

18.09.2013, 19.09.2013 20.09.2013.

3. Thereafter, on finding that the petitioner was not falling

under the Divorcee category on the date of submission of the

application form, as at the relevant time, she had yet to get her

Divorce decree, she was declined appointment on the post in

question under the Divorcee Category on account of non-

production of a valid decree of divorce. Aggrieved thereby, the

petitioner has filed a writ petition bearing S.B. Civil Writ Petition

No.11952/2013 praying for waiver of condition of production of

divorce decree and for consequential appointment on the post in

question; but the said writ petition was dismissed by this Hon’ble

Court on 26.09.2014, refusing her prayer for grant of benefit

accruing to her after passing of the divorce decree, as at the time

of submission of the application form and filing of the said writ

petition, the divorce decree was not passed by the competent


4. The petitioner thereafter, filed another writ petition

bearing No. S.B. Civil Writ Petition No.9069/2014 while placing the

divorce decree on record, but the same was also dismissed by this
(3 of 6)

Hon’ble Court on 09.01.2015 by passing an order, which is on

record as Annexure-6 of the writ petition. Thereafter, the

petitioner had preferred an appeal before the Division Bench of

this Hon’ble Court bearing D.B. Civil Special Appeal (Writ)

No.211/2015 decided on 27.03.2015, but the same was dismissed

as withdrawn, while giving liberty to the petitioner that she may

contest to get herself treated in the OBC Backward category

without getting the benefit of divorcee women category.

“The learned counsel for the appellant-petitioner
submits that the appellant-petitioner may be
employed as Informatics Assistant by treating her as
woman belonging to Other Backward Class category
without even on getting the benefit of divorce woman
category. Looking to this fact, he wants to withdraw
the petition for writ itself with liberty to file a fresh
one. Dismissed accordingly.”

5. Learned counsel for the petitioner Mr. M.S. Purohit

points out that once the Division Bench of this Court had given the

liberty to the petitioner to seek appointment in the OBC category,

then any adversity in the previous litigation was washed out.

Learned petitioner has also pointed out from the online application

form that the petitioner had filled her category as OBC (Non-

Cream Layer).

6. Learned counsel for the respondent Mr. Mukesh Dave

has refuted the aforesaid submissions made on behalf of the

petitioner on the ground that the selection process is over and the

petitioner had filled her category as a divorcee, and thus, at this

belated stage, no appointment can be granted to her, as the

available vacancies must have been exhausted.

(4 of 6)

7. Learned counsel for the respondent has further pointed

out that since non-availability of the divorcee decree was the

issue, due to which, the respondents have rejected the

candidature of the petitioner for her appointment on the post in

question, therefore, reconsideration of the case may not be


8. After hearing learned counsel for the parties as well as

perusing the record of the case, this Court is of the opinion that

since the petitioner had filled her application form as an OBC

(Non-Creamy Layer) category candidate, which is Annexure-9 of

the writ petition, therefore, this is not a case where the petitioner

is seeking change in her category, and rather in fact, the

petitioner is only seeking implementation of the category already

mentioned by her in the online application form, on the first

occasion itself.

9. This Court also finds that in the aforementioned special

appeal, the Division Bench of this Hon’ble Court had given liberty

to the petitioner to file fresh writ petition by raising the cause of

action to be treated as a woman belonging to OBC category

without getting the benefit of divorcee women category under the

OBC category. Therefore, without going into the facet of giving

any relief to the petitioner on account of her belonging to the

divorcee category, we deem it appropriate to adjudicate on the

limited point as to whether the petitioner could have been given

appointment against the posts reserved for OBC (Non-Creamy

Layer) on account of filling of original form in the same category.

(5 of 6)

10. This Court further finds that the online application form

of the petitioner which is Annexure-9 of the writ petition, clearly

indicates her category to be OBC (Non-Creamy Layer) and

therefore, if the respondents were inclined to deprive the

petitioner of the preferred status of a divorcee, then at least the

candidature of the petitioner ought to have been considered by

them in her original category, which she had mentioned in the

online application form.

11. This Court also takes note of the fact that the petitioner

was subsequently having the divorce decree on 05.08.2014. The

petitioner is not seeking any change of category, and is merely

seeking appointment and consideration on the basis of her own

eligibility and merits, as per the conditions of the advertisement in

her original category of OBC (Non-Creamy Layer). The petitioner

could not have been debarred from consideration of her case by

the respondents only on the ground that she was not having a

valid divorce decree at the time of verification of the documents

because it was imperative upon the respondents to have

considered the petitioner against the original category filled by her

in her online application form i.e. OBC (Non-Creamy Layer)


10. In light of the aforesaid observations, the present writ

petition is allowed and the respondents are directed to consider

the appointment of the petitioner in pursuance of the

advertisement dated 25.04.2013, while taking into consideration

her own merit and eligibility as a OBC (Non-Creamy Layer)

category candidate, as per the cut off marks and merit list of the
(6 of 6)

appointed candidates. However, it is made clear that the petitioner

shall not be considered in the divorcee category, and shall be

considered only in the OBC Female (Non-Creamy Layer) category

on her own merits, if she falls in merit. The needful be done within

a period of three months from today.



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