Rajasthan High Court - Jodhpur
Suman Choudhary vs State Of Rajasthan & Ors on 10 August, 2017
Author: Dinesh Mehta
Bench: Dinesh Mehta
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 i=ksa 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 izkFkZuk&i= 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