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