Rajasthan High Court

Seema Khan Daughter Of Shri ... vs State Of Rajasthan on 9 May, 2022

Bench: Inderjeet Singh

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 14298/2019

Seema Khan Daughter Of Shri Mukhtar Ali, Aged About 32 Years,
Resident Of House No. 23, Near Majid, Shiv Nagar, Police Lines
(City), Baran Road, Kota (Raj.).
                                                                            ----Petitioner
                                        Versus
1.         State Of Rajasthan, Through The Principal Secretary To
           The    Government,              Information               And         Technology
           Department,       Government           Of     Rajasthan,         Government
           Secretariat, Jaipur (Raj.).
2.         Rajasthan Subordinate And Ministerial Service Selection
           Board, Durgapura, Jaipur Through Its Secretary.
                                                                      ----Respondents

For Petitioner(s) : Mr. Dinesh Yadav, Adv. For Respondent(s) : Mr. Nalin G. Narayan, Adv.

Mr. Harsh Sahu, Addl. G.C.

Mr. Swapnil Singh, Adv.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

09/05/2022

With the consent of both the parties, the matter is heard

finally.

Brief facts of the case are that in pursuance to the

advertisement dated 27.02.2018, the petitioner applied for the

post of Informatics Assistant and after being successful in the

selection process, the petitioner was called for document

verification by the respondents. However, the petitioner was

denied appointment on the ground mentioned in the press note

dated 02.08.2019 as "Not Eligible as Divorcee".

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Counsel for the petitioner submitted that the petitioner is a

muslim lady and prior to the date of submitting application form

the 'Talaqnama' was executed between the petitioner and her

husband on 27.10.2015, thereafter on the basis of said

'Talaqnama', the Family Court No.1, Kota has also passed the

decree of divorce in favour of the petitioner vide judgment and

decree dated 20.01.2020. Counsel further submits that the issue

involved in this writ petition has been considered and decided by

the Coordinate Bench of this court at Principal Seat, Jodhpur in the

matter of Anjum Banu Vs. State of Rajasthan & Ors. (S.B.

Civil Writ Petition No.1649/2019) decided on 30.10.2019

where in it has been held as under:-

"This writ petition has been filed by the petitioner aggrieved against the order dated 18.01.2019 (Annex.8) passed by the respondents, whereby the appointment accorded to the petitioner on the post of Teacher Gr.III (Level-II) subject Science & Maths has been cancelled.

Pursuant to the advertisement dated 31.07.2018 for the post of Teacher Gr.III (Level-II) subject Science & Maths in the category of 'divorcee', the petitioner was selected and accorded appointment vide Annex.-6, however, the petitioner was not permitted to join. Subsequent thereto, by order dated 18.01.2019, for lack of decree of divorce from the competent court, the petitioner's appointment was cancelled.

Learned counsel for the petitioner made submissions that the petitioner was divorced by executing a 'Talaknama' on 05.11.2014 and the said fact was certified by the Chief Quazi on 25.11.2017. Subsequent thereto, the petitioner also obtained a decree of divorcee from the competent court which passed the decree on 10.01.2019, wherein also specific reference was made to the divorce having been granted to the petitioner w.e.f. 05.11.2014 and therefore, the action of the respondents in this regard cannot be justified.

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Reliance was placed on judgment of this Court in Seema Nasib v. State of Rajasthan & Ors. : 2008(4) RLW 3477.

Learned counsel for the respondents made submissions that the stipulation in the advertisement required production of decree from the competent court and as the petitioner did not produce decree from the competent court granting divorce on or before the last date of application and the decree was subsequent thereto, the order was rightly passed, which does not call for any interference.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record. The stipulation in the advertisement (Annex.1), inter-alia, reads as under :-

"ix. fookg&fofPNUu efgyk ds vUrxZr ykHk rHkh ns; gksxk] ;fn mls l{ke U;k;ky; vFkok fof/k }kjk bl gsrq vknsf"kr fd;k tk pqdk gksA"

A perusal of the above condition would reveal that the divorcee was required to produce a decree from the competent court or any legal direction in this regard.

This Court in the case of Seema Nasib (supra) 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 AdvocateGeneral has also submitted that 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

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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

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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 v. State of Rajasthan & Ors. : S.B. Civil Writ Petition No.16853/2015, decided on 21.04.2017 at Jaipur Bench, 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 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 the case of Seema Nasib (supra) and Tarannum Khan (supra), the issue raised in the writ petition is squarely covered.

The fact that in the advertisement itself, recognition has been given to a legal direction with regard to the divorce and courts have consistently recognized the certificate issued by the Quazi in the case of a Muslim woman, it cannot be said that the petitioner was not a divorcee on the date of application as claimed by her.

In view of the above, the writ petition filed by the petitioner is allowed. The order dated 18.01.2019 (Annex.8) is quashed and set-aside. The respondents are directed to permit the petitioner to join pursuant to her order of appointment, if she is otherwise

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eligible, with all consequential benefits from the date appointment was accorded to the petitioner. However, the petitioner would be entitled to monetary benefits from the date she joins pursuant to the order passed by this Court.

Needful be done by the respondents within a period of three weeks."

Counsels for the respondents have opposed the writ petition.

Heard counsel for the parties and perused the record.

Admittedly, the petitioner is a muslim woman and at the time

of submitting the application form and document verification, she

has produced 'Talaqnama' and the said 'Talaqnama' is vaild as per

the muslim customs and thereafter a decree of divorce has also

been passed by the Family Court in her favour, therefore, in my

considered view, this writ petition deserves to be allowed in view

of the judgment passed by the Coordinate Bench of this court at

Principal Seat, Jodhpur in the matter of Anjum Banu (supra).

Accordingly, the writ petition is allowed. The order/press note