Rajasthan High Court - Jodhpur
Madina Bano vs State Of Rajasthan And Anr on 4 July, 2019
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8678/2018
Madina Bano D/o Shri Nanu Khan, R/o Village Khejri, Tehsil
Hurda, District Bhilwara, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan Through The Secretary,
Department Of Medical And Health Services, Government
Of Rajasthan, Jaipur.
2. The Director Yunani, Department Of Medical And Health
Services, Government Of Rajasthan, Jaipur.
----Respondents
For Petitioner(s) : Mr. D.S.Sodha.
For Respondent(s) : Mr. Himanshu Shrimali.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 04/07/2019 This writ petition has been filed by the petitioner seeking a direction to the respondents to grant her appointment on the post of Yunani Nurse Junior Grade/Compounder in OBC divorcee category pursuant to the advertisement dated 7/6/2013.
It is inter alia indicated in the writ petition that the petitioner being eligible for the post submitted her online application form along with requisite details in OBC divorcee category. The respondents issued a provisional select list on 23/4/2018, wherein, the petitioner was selected and her name appeared at serial no. 60 in the said list. After document verification, when the final select list was issued on 15/6/2018, the name of the (Downloaded on 05/07/2019 at 10:18:39 PM) (2 of 4) [CW-8678/2018] petitioner was missing from the said list. Aggrieved from exclusion of her name, the present petition has been filed.
It is submitted by learned counsel for the petitioner that apparently the name of the petitioner has been excluded from the final select list after document verification on account of producing 'Talaknama' (Annex.2) for establishing her status as divorcee as the respondents had demanded a decree from the competent court in this regard.
It is submitted that by order dated 20/6/2018, it was directed that one post of Yunani Junior Nurse/Compounder in OBC divorcee category pursuant to the advertisement dated 7/6/2013 (Annex.4) shall be kept vacant.
It is further submitted that the issue involved in the present writ petition is no more res integra and is squarely covered by the judgment in Seema Nasib vs. State of Rajasthan & Ors. : 2008 (4) RLW 3477 and, therefore, the writ petition deserves to be allowed.
Learned counsel for the respondents is not in a position to dispute the submission that the issue raised in the present writ petition is squarely covered by the judgment in the case of Seema Nasib (supra), which has been followed in Tarannum Khan vs. State of Rajasthan & Ors. : S.B.Civil Writ Petition No. 16853/2015 decided on 21/4/2017 at Jaipur Bench.
In the case of Seema Nasib (supra), it was laid down as under:-
"6. Therefore, if a Muslim lady is subjected to divorce by her husband by giving her Talak as per the procedure prescribed in Shariyat, naturally she is not required to produce any decree of the Court at the time of making application for appointment and therefore, her case is required to be considered in the category of divorced woman. Considering the aforesaid aspect, I see no reason to accept the request of learned Advocate-General for reconsidering the decision given by this Court in the earlier case. The learned Advocate-General has also submitted that (Downloaded on 05/07/2019 at 10:18:39 PM) (3 of 4) [CW-8678/2018] it is not his argument that in a given case, a husband and wife may produce such document only with a view to obtain an appointment even if there may not be genuine Talak. He submitted that such insistence to produce the decree of divorce is required only in order to maintain parity with the applicants of other communities to produce the decree of divorce. However, as discussed earlier, if in a particular Marriage Act of a particular community, there is a requirement of obtaining decree of divorce, then naturally the applicant is required to produce such decree alongwith her application, but that should not be applied even in the case of the divorced ladies where there is no requirement of obtaining decree of divorce as per the law applicable to such candidates. Learned Advocate-General further submitted that under Section 34 of the Specific Relief Act, there is provision of obtaining declaration of status or right from the Court. In this connection, it is required to be noted that in a given case, if somebody disputes the status of a person, then naturally a person in such case may go to the Court under Section 34 and obtain declaratory decree; but here in the instant case, the status of a divorced lady is not under challenge by anyone, and therefore, such lady is not required to go to the Court for obtaining declaratory decree. In a given case, if the status of a person is doubted by someone, then certainly such person may go to the Court and obtain declaration under Section 34 of the Act. That is not the position in the present case as it is not even the argument of learned Advocate General that said Talaknama is not genuine or is obtained with a view of obtain appointment in service as his argument is restricted only in connection with the uniform treatment required to be given to all the applicants. Considering the said aspect of the matter, I do not find any substance in the argument of learned Advocate-General that the decision given in the earlier case is required to be reconsidered and that the matter is required to be referred to the Larger Bench. If the State Government is of the opinion that by virtue of this decision as well as in view of the decision given in the earlier case referred above, a fresh advertisement is required to be given deleting such Clause from the advertisement regarding Muslim divorced lady, it is for the State to give such fresh advertisement if the State so deems fit."
Following the above view, in the case of Tarannum Khan (supra), a coordinate bench came to the conclusion and ordered as under:-
"Be that as it may, since the petitioner had produced Talaknama at the time of verification of documents and as per judgment rendered by the co-ordinate Bench in the case of Seema Nasib (supra), the same is valid document and the petitioner could not be denied appointment. The respondents have committed a grave error in cancelling the appointment of the petitioner. Hence, the present petition is allowed, and the impugned order dated 28.8.2015 is quashed and set aside and the respondents are directed to (Downloaded on 05/07/2019 at 10:18:39 PM) (4 of 4) [CW-8678/2018] permit the petitioner to join her place of posting as Agriculture Supervisor forthwith. The petitioner shall be notionally appointed from the day, person lower in merit list than the petitioner, had joined."
In view of the law laid down by this Court in Seema Nasib (supra) and Tarannum Khan (supra), the writ petition filed by the petitioner is allowed. The respondents are directed to accord appointment to the petitioner pursuant to the provisional select list dated 23/4/2018 (Annex.6), if she is otherwise eligible, with all consequential benefits from the date appointment was accorded to a person lower in merit to the petitioner. However, the petitioner would be entitled to monetary benefits from the date appointment is accorded to her.
Needful be done within a period of four weeks.
(ARUN BHANSALI),J 176-baweja/-
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