Akila Banu vs State Of Rajasthan ...
2023 Latest Caselaw 6442 Raj

[2023:RJ-JD:27162]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3167/2020

Akila Banu D/o Aashik Mohammad, Aged About 28 Years, Shiv Mandir, Fatenagar Road, Railmagra, Tehsil Railmagra, District Rajsamand, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Special Secretary, Medical And Health Department And Mission Director, Government Of Rajasthan, Jaipur, Rajasthan.

2. Director, State Health And Family Welfare Department, Jhalana Shansthanik Setra, Jaipur, Rajasthan.

                                                 ----Respondents


For Petitioner(s)           :   Mr. Manoj Kumar
For Respondent(s)           :   Mr. K.S. Rajpurohit, AAG


                     JUSTICE DINESH MEHTA
                                     Order
28/08/2023

1. Feeling aggrieved with the rejection of her candidature as a

'divorcee' woman, the petitioner has invoked writ jurisdiction of

this Court.

2. The facts in a nutshell are that the petitioner applied for the

post of Nurse Grade II pursuant to the recruitment notification

dated 30.05.2018 and staked her claim towards the seats

earmarked for the category 'divorcee' women. The petitioner

submitted talaknama executed on 25.04.2017 in order to establish

that she is a 'divorcee'.

3. The respondents rejected petitioner's candidature as a

'divorcee' woman as she did not file or have a decree of divorce

given by the competent Court.

4. Learned counsel for the petitioner argued that a 'talaknama'

is a valid document as per the customs prevailing in petitioner's

community and the respondents were duty bound to consider the

[2023:RJ-JD:27162] (2 of 6) [CW-3167/2020]

same and offer her appointment under 'divorcee' category,

because she has secured more marks than the marks obtained by

last candidate of her category selected for appointment.

5. Mr. K.S. Rajpurohit, learned Additional Advocate General, on

the other hand, submitted that the condition of the advertisement,

particularly condition No.IV appended with clause 3 clearly

required that in order to claim reservation as a 'divorcee', a

candidate has to produce divorce decree or decree/order of

competent Court and since the petitioner has failed to furnish such

decree, her candidature has rightly been rejected.

6. While arguing that the petitioner is required to adhere to

such condition, learned counsel relied upon a Division Bench's

judgment dated 10.11.2022 of this Court rendered in the case of

The Secretary, Rajasthan Public Service Commission & Anr.

Vs. Sangeeta Varhat & Ors. : D.B.Special Appeal (Writ)

No.72/2022.

7. In rejoinder, learned counsel for the petitioner argued that

the 'talaknama' or agreement is valid as per the customary law

and in a series of judgment of this Court including the judgment

rendered in the case of Tarannum Khan Vs. State of

Rajasthan & Ors. (S.B.Civil Writ Petition No.16853/2015

decided at Jaipur Bench on 21.04.2017) and Seema Nasib

Vs. State of Rajasthan & Ors., reported in 2008(4) RLW

3477, it has been repeatedly held that a candidate is entitled to

establish her claim as a 'divorcee' woman on the strength of

'talaknama'.

8. Learned counsel submitted that identical view was taken by a

co-ordinate Bench of this Court in order dated 04.07.2019 passed

[2023:RJ-JD:27162] (3 of 6) [CW-3167/2020]

in S.B. Civil Writ Petition No.8678/2018 : Madina Bano Vs. State

of Rajasthan & Ors. and such order of the Single Bench has

been affirmed by the Division Bench of this Court per viam order

dated 07.01.2020 passed in D. B. Spl. Appl. Writ No.1542/2019 :

State of Rajasthan & Ors. Vs. Madina Bano.

9. He submitted that in light of the law laid down in Madina

Bano's case (supra), the petition deserves to be allowed.

10. Heard learned counsel for the parties and perused the

material available on record.

11. Before dilating upon the submissions made by rival parties, it

would be apt to reproduce relevant condition No.IV of the

advertisement, which reads as under:-

"foKkfir inksa esa fu;ekuqlkj 8 izfr'kr in fo/kok ,oa 2 izfr'kr in ifjR;Drk ¼fookg fofNUu½ efgyk vH;fFkZ;ksa ds fy;s vkjf{kr gSaA ;fn i;kZIr fo/kok efgyk vH;FkhZ miyC/k ugha gksrh gS rks fo/kok efgyk vH;fFkZ;ksa ds fy;s vkjf{kr in dks ml oxZ dh ifjR;Drk ¼fookg fofNUu½ efgyk vH;fFkZ;ksa ls Hkjk tkosxkA blh izdkj Ik;kZIr ifjR;Drk efgyk vH;FkhZ miyC/k ugh gksrh gS rks buds fy;s vkjf{kr in dks mlh oxZ dh fo/kok efgyk vH;fFkZ;ksa ls Hkjk tkosxkA ;fn fo/kok ,oa ifjR;Drk oxZ dh efgyk vH;FkhZ nksuksa gh Ik;kZIr la[;k esa miyC/k ugh gksrh gS rks buds fy;s vkjf{kr in dks mlh oxZ dh efgyk vH;fFkZ;ksa ls Hkjk tkosxkA fo/kok oxZ dh efgyk vH;FkhZ vkosnd gksus dh fLFkfr es l{ke izkf/kdkjh }kjk tkjh ifr dk e`R;q izek.k i= ,oa e`rd ls vH;fFkZ;k dk fookg gksus laca/kh izek.k i= izLrqr djuk gksxk rFkk ifjR;Drk efgyk ¼fookg fofNUu½ dks Hkh fookg foPNsn dk izek.k vFkkZr~ l{ke U;k;ky; }kjk tkjh fMdzh izLrqr djuh gksxh ¼dkfeZd foHkkx ds ifji= la[;k ,Q- 7¼2½Mhvksih@,s&II@88 ikVZ&1 fnukad 22-12-2015½A"

12. A simple reading of the aforementioned condition makes it

abundantly clear that while claiming reservation under the

category of 'divorcee' women, a candidate is required to furnish a

decree of divorce or order granted by competent Court, which the

petitioner has admittedly failed to do.

[2023:RJ-JD:27162] (4 of 6) [CW-3167/2020]

13. In view of the aforesaid and in view of the adjudication made

by Division Bench in the recent case of Sangeeta Varhat (supra)

this Court hardly finds any merit and substance in petitioner's

case.

14. In the case of Sangeeta Varhat (supra), the Division Bench

has held thus:-

"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

[2023:RJ-JD:27162] (5 of 6) [CW-3167/2020]

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 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."

15. So far as the reliance placed by learned counsel for the

petitioner in Division Bench's judgment dated 07.01.2020 in the

case of State of Rajasthan & Ors. Vs. Madina Bano is

concerned, a careful reading of the facts involved therein shows

that the co-ordinate Bench has relied upon judgment in the case

of Tarannum Khan (supra) and Seema Nasib (supra). A perusal of

the judgment of Tarannum Khan (supra) dated 21.04.2017

passed by co-ordinate Bench of this Court reveals that the

[2023:RJ-JD:27162] (6 of 6) [CW-3167/2020]

condition under consideration in that case was that the candidate

was required to furnish proof of dissolution of marriage and in

light of such stipulation in the advertisement, the Court

proceeded to hold that a 'talaknama' is a valid proof of factum of

divorce in the case of customary divorce that is not governed by

Hindu Marriage Act, 1955.

16. It will not be out of place to reproduce relevant condition of

the advertisement in the case of Tarannum Khan (supra) which

reads thus:-

"fo/kokvksa ,oa fofNUu fookg efgykvksa ds ekeysa esa dksbZ vk;q lhek ugha gksxh] fdUrq jkT; ljdkj }kjk fuf"pr dh xbZ lsokfuo`fRr vk;q ls mldh vk;q de gksA Li'Vhdj.k& fo/kok efgyk ds ekeysa esa mls l{ke izkf/kdkjh ls vius ifr dh e`R;q dk izek.k i= izLrqr djuk gksxk vkSj fofNUu fookg efgyk ds ekeys esa mls fookg fofNUu dk l{ke izek.k i= izLrqr djuk gksxkA "

17. In view of the above noted significant difference between

the terms of the advertisement in the case of Tarannum Khan

(supra), Madina Bano (supra) and the condition of the

advertisement under consideration, this Court is of the view that

the petition lacks substance and merit because, the candidates

were required to furnish a decree of divorce issued by a

competent Court.

18. An an upshot of the discussion foregoing, the writ petition

fails.

19. The stay application also stands disposed of accordingly.

(DINESH MEHTA),J 40-AbhishekS/-

Powered by TCPDF (www.tcpdf.org)