The Secretary vs Sangeeta Varhat
2022 Latest Caselaw 13233 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR

              D.B. Special Appeal (Writ) No.72/2022

1.   The Secretary, Rajasthan               Public      Service    Commission,
Ajmer.
2.   The  Deputy    Secretary,               Rajasthan          Public   Service
Commission, Ajmer.

                                                                  ----Appellants
                                   Versus


1.   Sangeeta Varhat D/o Rooplal Ji Varhat, Aged About 35
Years, Ward No. 9, Sadiya Fala, Post Sanchiya, District
Dungarpur, Rajasthan.
2.   State Of Rajasthan, Through Secretary Department Of
Education, Government Of Rajasthan, Jaipur Rajasthan.
3.   Director, Department Secondary Education, Bikaner
Rajasthan.

                                                                ----Respondents
                             Connected With

                D.B. Spl. Appl. Writ No. 97/2021
1.   The State Of Rajasthan, Through The Secretary,
Department Of Education, Government Of Rajasthan, Jaipur,
Rajasthan.
2.   Director, Department Of Secondary Education, Bikaner,
Rajasthan.

                                                                  ----Appellants
                                   Versus

1.   Lalita Charpota D/o Meeru Charpota, R/o Rujiya, Post
Chidiyawas, District Banswara, Rajasthan.
2.   Secretary, Rajasthan Public Service Commission, Ajmer.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Pankaj Sharma, AAG
                               Mr. Rishi Soni
                               Mr. Dhairyaditya Rathore
                               Mr. Khet Singh, for RPSC
For Respondent(s)        :     Mr. Rituraj Singh



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                HON'BLE MR. JUSTICE SANDEEP MEHTA
                HON'BLE MR. JUSTICE KULDEEP MATHUR
                                JUDGMENT

    PRONOUNCED ON                          :::                      10/11/2022
     RESERVED ON                           :::                      11/10/2022
Reportable

    BY THE COURT: (PER HON'BLE KULDEEP MATHUR,J.)

The instant intra court appeals involve common question of

law and hence, the same are heard and decided together by this

order.

The question to be adjudicated upon is whether an applicant

who has taken customary divorce is entitled to apply in the

category of 'Divorcee Female', without presenting decree of

divorce granted by competent civil court before the cutoff date, as

stipulated in the terms and conditions governing the recruitment

process.

It is pleaded that respondent Nos.1 in the appeals belong to

Scheduled Tribe/Tribal Sub Plan Area and had applied against

advertised posts indicating their categories as 'Divorcee'. The

respondents however, at the time of document verification were

disqualified on the count that they did not possess a decree of

divorce as on the last date of filing application forms. Being

aggrieved by the non-inclusion of the names in the final select list,

the respondents approached the learned Single Bench seeking a

direction upon the appellants for appointment under 'Divorcee'

category.

Learned Single Bench allowed the writ petitions holding that

the respondents belong to Scheduled Tribe community and

(3 of 8) [SAW-72/2022]

therefore, the provisions of Hindu Marriage Act, 1955 are not

applicable upon them in light of Section 2(2) of Hindu Marriage

Act, 1955 thus, the condition of submitting divorce decree, issued

by a competent court cannot be fastened upon them. The

appellant-respondents were directed to include the name of the

respondents in the select list on the basis of customary dissolution

of marriage and provide them appointment from the date

candidates lower in merit were granted appointment, if they are

otherwise eligible.

Learned counsel for the appellants submitted that a

candidate who applies for a particular post under 'Divorcee'

category must be possessed of a decree of divorcee on the last

date of submission of application form so as to make the

candidate eligible for consideration against the post reserved for

candidate belonging to said category. Learned counsel submitted

that the customary practices for divorce may be prevalent in tribal

communities but that would be confined to social purposes only.

However, in order to claim appointment under questioned

selection process, a candidate would be governed by the terms

and conditions set out for the selection process. Learned counsel

further submitted that the general instructions issued to the

candidates clearly stipulate a condition that a decree of divorce is

essential for consideration of candidature for appointment against

quota of divorcees. To fortify the aforesaid contention, reliance

was placed on the judgment rendered by co-ordinate Bench of this

Court in the case of Rajasthan State Public Service Commission &

Anr. vs. Reetu Kalasua & Anr.: D.B. S.A.W. No.1193/2014 decided

on 22.01.2016.

(4 of 8) [SAW-72/2022]

Per contra, learned counsel for the respondents submitted

that the respondent-writ petitioners belong to Scheduled

Tribe/Tribal Sub Plan Area where customary divorce is prevalent

since time immemorial which is accepted as a valid process of

marriage dissolution in Hindu Laws. Learned counsel further

submitted that Section 2(2) of Hindu Marriage Act, 1955 makes it

evident that the said Act does not apply to Scheduled Tribes who

are governed by the customs prevalent in their respective

communities. Therefore, once it is established that divorce has

been obtained as per customs, the denial of appointment for want

of decree of divorce by a competent court is not sustainable in the

eyes of law. Reliance was placed on the judgments rendered by

this Court in the cases of Sunita Meena vs. State of Rajsthan &

Ors: S.B. C.W. No.3991/2015 and Rajasthan Public Service

Commission vs. Sunita Meena & Ors.: D.B. S.A.W. No.829/2017.

Heard submissions advanced at Bar and perused the material

available on record.

Hon'ble the Supreme Court of India in the case of Ashok

Kumar Sonkar vs. Union of India, reported in (2007) 4 SCC

54, held as under:

"Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut- off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application."

(5 of 8) [SAW-72/2022]

Hon'ble the Supreme Court of India in case of Dr. M.V. Nair

vs. Union of India & Ors. reported in (1993) 2 SCC 429,

observed as under:

"It is well settled that suitability and eligibility has to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date."

A co-ordinate Bench of this Court in the case of Rajasthan

State Public Service Commission & Anr. vs. Reetu Kalasua &

Anr.: D.B. S.A.W. No.1193/2014 while dealing with a similar

controversy held that a female candidate without having a decree

of divorce cannot represent herself as divorced woman. No

presumption could be drawn about grant of decree of divorce and

a candidate cannot be treated as divorced without there being a

declaration of dissolution of marriage by the competent court.

Similar view has been reiterated by co-ordinate Bench in the case

of State of Rajasthan & Ors. vs. Jagdish Prased & Anr: D.B.

S.A.W. No.611/2016 and Parul Khurana vs. High Court of

Judicature for Rajasthan at Jodhpur: D.B. C.W.

No.1004/2022.

A co-ordinate Bench of this Court in the case of Rajasthan

Public Service Commission vs. Sunita Meena & Ors.: D.B.

S.A.W. No.829/2017 keeping in view the peculiar facts and

circumstances of that case upheld the direction passed by learned

Single Judge in favour of the candidate-petitioner belonging to

Meena community (Scheduled Tribe) directing the recruiting

agency to consider the candidate a 'Divorcee' as per the

customary laws while affording the petitioner-candidate an

(6 of 8) [SAW-72/2022]

opportunity to obtain a declaration of dissolution of marriage from

competent court.

It would be apposite to note here that Family Courts

established under the Family Court Act, 1984 by virtue of Section

7 of the said Act have exclusive jurisdiction to deal with all issues

of marriage and divorce without exception irrespective of the

community, the parties belong to.

"7. Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor."

Emphasis supplied

(7 of 8) [SAW-72/2022]

Admittedly, the respondents submitted application seeking

appointment on advertised posts against the seats reserved for

divorcee candidates. The decree of divorce issued by competent

court was not possessed by the petitioners on the cut off date.

The appointment in the divorcee category has been claimed on the

ground of having obtained customary divorce and non application

of Hindu Marriage Act, 1955 upon marriages and divorce amongst

the members of Scheduled Tribe/Tribal Sub Plan communities.

We are of the considered opinion that the requirement of a

decree of divorce for a female candidate to claim reservation

against the reserved quota for divorcee women on the cut off

date/on the last date of submitting application form is sine qua

non and the candidature cannot be considered against said

category in the absence of decree of divorce issued by the

competent court. A custom cannot be allowed to supersede the

terms and conditions governing the recruitment process. The

terms and conditions of recruitment are framed to adhere to the

mandate enshrined under Articles 14 and 16 of the Constitution of

India which guarantee equal opportunities to all citizens for their

advancement in the matter of employment.

Candidates belonging to Scheduled Tribe/Tribal Sub Plan are

not precluded from obtaining decree of divorce from the

competent court having jurisdiction to decide the matrimonial

disputes. Exemption from presenting decree of divorce, issued by

competent court cannot be sought on the ground of customs

prevalent in their communities. The customs/practices prevailing

in a particular community cannot be allowed to supplement the

terms and conditions of a recruitment process involving large

(8 of 8) [SAW-72/2022]

number of candidates belonging to various caste, religion, faith

and communities.

In view of aforesaid discussion, the judgment passed in the

case of Sunita Meena (supra) is held per incuriam since, the

judgment was rendered in ignorance of previous decisions of

Hon'ble the Apex Court and co-ordinate Bench of this Court on the

controversy dealing with the cut off date by reference to which

eligibility requirements must be satisfied by a candidate seeking

public employment.

In the result, the intra court appeals succeed and are hereby

allowed. The order/judgment dated 12.09.2019 and 30.03.2021

under present appeals are set aside.

No order as to costs.

                                   (KULDEEP MATHUR),J                                   (SANDEEP MEHTA),J
                                    KshamaD/-









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