Rajasthan High Court
Mamta Yogi D/O Kailash Nath Yogi vs The State Of Rajasthan ... on 4 December, 2023
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2023:RJ-JP:37722]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 11295/2020
Mamta Yogi D/o Kailash Nath Yogi, Aged About 33 Years, R/o
Village Rustumganj, Post Chandlai, Tehsil And District Tonk,
Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Its Secretary, Medical
And Health Department, Govt. Of Rajasthan, Secretariat,
Jaipur.
2. The Additional Director (Administration), Medical And
Family Welfare Department, Rajasthan, Jaipur.
----Respondents
For Petitioner(s) : Mr. Ram Pratap Saini
For Respondent(s) :
HON'BLE MR. JUSTICE GANESH RAM MEENA
Judgment / Order
04/12/2023
1. The petitioner has filed this writ petition with the
following prayers:-
"I) By appropriate writ, order or direction,
Respondents may be directed to give appointment to
the petitioner on the post of Female Health Worker
(ANM) with all consequential benefits, as the petitioner
has secured more marks than the last cut off OBC Non
Creamy Layer Divorce Category, in pursuance of
advertisemetn dated 18.6..2018.
II) Issue an appropriate writ order or direction
in the nature thereof thereby, the respondents be
directed to consider the petitioner under OBC Non
[2023:RJ-JP:37722] (2 of 9) [CW-11295/2020]
Creamy Layer Divorcee Category by considering the
Decree of Divorce dated 12.03.2020.
III) By appropriate writ, order or direction in the
nature thereof, the impugned list of Not selected
candidates may kindly be quashed and set aside qua
the petitioner and issue fresh list by including the
petitioner for appointment on the post of ANM."
2. Counsel for the petitioner submits that the petitioner
belongs to divorcee category and she has been allowed decree
of divorce from the Competent Court on 12.3.2020 but she is not
being allowed selection/ appointment on the post of Health
Worker (Female) against the vacancies reserved for divorcee
women category, though she is having higher marks than the
many of the candidates who have been selected and given
appointment.
3. Considered the submissions made by the counsel for
the petitioner and also perused the material available on the
record.
4. As per the facts of the case, the advertisement was
issued by the respondents on 18.6.2018 inviting applications
from the eligible candidates for filling up the vacancies of Health
Worker (Female) under the Rajasthan Medical & Health
Subordinate Service Rules, 1965 (for short 'the Rules of 1965').
The last date for submitting the application forms was fixed as
23.7.2018.
5. The petitioner submitted the Online application form
on 23.7.2018 under the OBC- NCL category mentioning her
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martial status as 'married. The petitioner has also enclosed the
divorce decree passed on 12.3.2020 by the Family Court, Tonk.
6. The petitioner is claiming consideration of her
candidature against the vacancies reserved for divorce women
category on the basis of divorce decree dated 12.3.2020. In
clause 4 of the advertisement it has been specifically stated that
any candidate claiming consideration under the divorcee
category has to submit the divorce decree passed by the
Competent Court. It has also been specifically mentioned in the
advertisement that the eligibility consideration of the candidate
has to be made as on the last date of submitting the application
form if no other date has been given in the advertisement or in
the relevant rules.
7. This Court in the case of Rekha Sharma Vs.
State of Rajasthan & Anr. (SB Civil Writ Petition No.
18802/2023) decided on 28.11.2023 has observed as
under:-
"8. The Hon'ble Apex Court in the case of
J&K Public Service Commission vs. Israr
Ahmad, reported in (2005) 12 SCC 498, in
para 5 has observed as under:-
"5. We have considered the rival
contentions advanced by both the
parties. The contention of the first
Respondent cannot be accepted as he
has not applied for the selection as a
candidate entitled to get reservation. He
[2023:RJ-JP:37722] (4 of 9) [CW-11295/2020]
did not produce any certificate along
with his application. The fact that he has
not availed the benefit for the
preliminary examination itself is
sufficient to treat him as a candidate not
entitled to get reservation. He passed
the preliminary examination as a general
candidate and at the subsequent stage
of the main examination he cannot avail
the reservation on the ground that he
was successful in getting the required
certificate only at a later stage. The
nature and status of the candidate who
was applying for the selection could only
be treated alike and once a candidate
has chosen to opt for the category to
which he is entitled, he cannot later
change the status and make fresh claim.
The Division Bench was not correct in
holding that as a candidate he had also
had the qualification and the production
of the certificate at a later stage would
make him entitled to seek reservation.
Therefore, we set aside the judgment of
the Division Bench and allow the appeal.
No costs."
9. The Hon'ble Apex Court in the case of
Ankita Thakur & Ors. Vs. The H.P. Staff
Selection Commission & Ors., decided on
November 9, 2023 (Civil Appeal No.7602 of
2023 with four other connected matters)
apart from other issues framed an issue No.(i)
[2023:RJ-JP:37722] (5 of 9) [CW-11295/2020]
'Whether relaxation in the essential eligibility
qualifications could be made post the last date
fixed for receipt of application from the
candidates?'. The Hon'ble Apex Court decided the
aforesaid issue No.(i) as under:-
"Issue No.(i)
24. It is well settled that eligibility criteria /
conditions, unless provided otherwise in the
extant rules or the advertisement, must be
fulfilled by the candidate by the last date for
receipt of applications specified in the
advertisement [See: Rakesh Kumar Sharma
(supra)].
25. In Bedanga Talukdar (supra), this Court
observed:
"29. ............... In our opinion, it is too well
settled to need any further reiteration
that all appointments to public office
have to be made in conformity with
Article 14 of the Constitution of India. In
other words, there must be no
arbitrariness resulting from any undue
favour being shown to any candidate.
Therefore, the selection process has to be
conducted strictly in accordance with the
stipulated selection procedure.
Consequently, when a particular schedule
is mentioned in an advertisement, the
same has to be scrupulously maintained.
There cannot be any relaxation in the
terms and conditions of the
advertisement unless such a power is
specifically reserved. Such a power could
[2023:RJ-JP:37722] (6 of 9) [CW-11295/2020]
be reserved in the relevant statutory
rules. Even if power of relaxation is
provided in the rules, it must still be
mentioned in the advertisement. In the
absence of such power in the rules, it
could still be provided in the
advertisement. However, the power of
relaxation, if exercised, has to be given
due publicity. This would be necessary to
ensure that those candidates who
become eligible due to the relaxation, are
afforded an equal opportunity to apply
and compete. Relaxation of any condition
in advertisement without due publication
would be contrary to the mandate of
equality contained in Articles 14 and 16
of the Constitution of India.
30. A perusal of the advertisement in this
case will clearly show that there was no
power of relaxation. In our opinion, the
High Court committed an error in
directing that the condition with regard to
the submission of the disability certificate
either along with the application form or
before appearing in the preliminary
examination could be relaxed in the case
of Respondent 1. Such a course would
not be permissible as it would violate the
mandate of Articles 14 and 16 of the
Constitution of India.
32. .......... It is settled law that there can
be no relaxation in the terms and
conditions contained in the advertisement
[2023:RJ-JP:37722] (7 of 9) [CW-11295/2020]
unless the power of relaxation is duly
reserved in the relevant rules and/or in
the advertisement. Even if there is a
power of relaxation in the rules, the same
would still have to be specifically
indicated in the advertisement. .............."
26. The above decision has been followed in
Sanjay K. Dixit (supra). Thus, the law is settled
that if the extant Rules provide for the power to
relax the eligibility criteria, the same could be
exercised only if such power is reserved in the
advertisement. And when this power is exercised,
there must be wide publicity of its exercise so
that persons who are likely to benefit by exercise
of such power may get opportunity to apply and
compete.
27. In the instant case, it is not shown that the
advertisement reserved the power to relax the
essential eligibility qualifications specified in the
advertisement at any later stage. Rather, the
advertisement is specific that eligibility criteria
must be fulfilled by an aspiring candidate by the
last date fixed for receipt of the application. It is
not demonstrated that after the decision to relax
the eligibility criteria was taken, the same was
widely publicised, and the last date to apply
under the advertisement was extended to enable
persons benefited by such relaxation to apply and
compete. In these circumstances, in our view, the
power to relax the eligibility criteria, even if it
existed, was not exercised in consonance with the
settled legal principles and it violated the
constitutional mandate enshrined in Articles 14
[2023:RJ-JP:37722] (8 of 9) [CW-11295/2020]
and 16 of the Constitution. Issue No.(i) is decided
in the terms above. "
"10. There is a specific condition mentioned
in the advertisement itself that a candidate
claiming her consideration for recruitment under
the DV (divorcee) category is required to have a
divorce decree from the Competent Court on the
last date of submission of the application form. In
the instant case the last date for submission of the
application form under the advertisement dated
28.06.2023 is 31.07.2023 and the petitioner got
the decree of divorce on 20.10.2023 i.e. much
after the last date of submitting the application
form.
11. In view of the proposition in the above
judgments of the Hon'ble Apex Court, no
relaxation is permissible for diverting from the
terms and conditions of the advertisement."
8. This Court also in the case of Sonika Singh Vs. The
State of Rajasthan & Anr. (S.B. Civil Writ Petition
No.21997/2018) decided on 01.12.2023 has observed
in para 9 as under:-
"9. If the relaxation as prayed for by the
petitioner is allowed then there may be several other
candidates who may claim on similar facts the same
benefit. So also if any candidate gets a divorce
decree even during the recruitment process till the
interview or declaration of final result, he/she may
also claim the same benefit for consideration of his/
her candidature under the divorce decree which will
create hindrance in the smooth recruitment process
and may change the merit of the candidates at each
[2023:RJ-JP:37722] (9 of 9) [CW-11295/2020]
stage/ level of the recruitment process. The Courts
are to ensure the completion of the recruitment
process smoothly and earliest as per the schedule of
the recruitment and if any kind of relaxation is
allowed beyond the permissible limits then the whole
recruitment process will derail which can never be
the intention of the Court. The completion of
recruitment process smoothly is the demand of the
Society because of much unemployment in the
youths. A candidate who is aspirant of participating
in the recruitment process is required to go through
the terms and conditions of the advertisement and
the rules and has to apply according to his /her
qualification as required under the law and under the
category for which he /she is eligible. The terms and
conditions given in the advertisement on the basis of
the relevant recruitment rules are the sole basis for
proceeding with the recruitment process. Until and
unless there is a gross violation of any condition or
there is a claim of a candidate within the parameters
of the fundamental rights given under the
Constitution of India, no interference is required
from the Court."
9. In view of the above, this Court finds no merit in the writ
petition and accordingly the same is dismissed.
10. Since the main petition has been dismissed, the stay
application and pending application/s, if any also stand
dismissed.
(GANESH RAM MEENA),J
Sharma NK-Dy. Registrar /10
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