JUDGMENT 1. - The petitioner is possessing the qualification of M.A. (Drawing & Painting) from the University of Rajasthan. She also completed her Ph.D. on Kota's wall painting in the year 1991. She was appointed as Teacher Grade III in the year 1989 having been duly selected by the Selection Board. She was also selected for the post of Lecturer in Drawing and Painting. Names of nine candidates were recommended by the Rajasthan Public Service Commission. The position of the petitioner was 7th on the merit list, in response to the advertisement No. 3/KT Number 1-3/Re/94-95 as per Rajasthan Education Service (Collegiate Branch) Rules, 1986 (here-in-after referred to as the Rules). She resigned from the earlier post of Teacher Grade III on 25.3.1996. On having been so selected, she made a representation to the authorities to give appointment to her at Jaipur for the reason that her husband Shri S.H. Quazi is an Associate Professor in Fine Arts, University of Rajasthan, Jaipur. Her representation dated 4.7.1996 is attached as Annexure-2. 2. It is admitted case of the parties that all other candidates so selected, even the candidates appearing on the waiting list, have since been appointed to their respective posts, but the petitioner has not been given appointment. The petitioner made enquiries and it was revealed that she is being deprived of appointment on a complaint lodged by Ms. Meenakshi Bharti whereas she had made a complaint that the petitioner had married to a already married person. The petitioner took up the defence in her representation that her husband Shri S.H. Quazi had already divorced his earlier wife. The representation is attached as Annexure-5. 3. The facts as stated by the petitioner are that her husband Shri S.H. Quazi had married to one Meenakshi Bharti as per Arya Samaj rites on 6.8.1978 at Jaipur. Said Bharti converted herself to Islam and is said to have changed her name to Mst. Mehjabeen. A Islam 'Nikah' was also solemnized between them as per Muslim rites. The marriage certificate to that effect had been attached as Annexure-6 and 7. The so called Meenakshi now Mehjabeen had been living with Mr. Quazi as husband and wife. The relations between them got strained. Said Mehajabeen again reverted back to her original Hindu name as Meenakshi. A publication was also made to this effect in Rajasthan Patrika. It is stated that Mr. The so called Meenakshi now Mehjabeen had been living with Mr. Quazi as husband and wife. The relations between them got strained. Said Mehajabeen again reverted back to her original Hindu name as Meenakshi. A publication was also made to this effect in Rajasthan Patrika. It is stated that Mr. Quazi had given a divorce to his earlier wife on 20.10.1993 in the presence of two witnesses. It is stated that earlier wife of Quazi had been harassing her husband on number of counts. A criminal complaint was also lodged by said Meenakshi against her husband in the court at Jaipur City. Her husband has also challenged the criminal complaint for the purpose of quashing the same which matter is said to be pending in the High Court. It is the case of the petitioner that for the reason that there is no earlier living wife of his husband Shri Quazi and Meenakshi having been divorced, there is no question of the petitioner being second wife of said Shri Quazi. It is submitted that despite all these facts, the petitioner has not been given the appointment even though she has been regularly selected. 4. Rule 25(2) of the Rajasthan Civil Services (Conduct) Rules, 1971 provides that no female Government servant shall marry any person who has a wife living without first obtaining the permission of the Government. The petitioner had married Shri Quazi on 8.5.1994, when it is stated that he was already divorced vide registered divorce dated 25.10.1993 and thus submits that vires of Rule 25 of the Rules aforesaid are not attracted and submits that non-offering of the appointment to the petitioner violates the fundamental right of the petitioner under Article 14 and 16 of the Constitution. A prayer has been made for appointment to the petitioner on the post of Lecturer (Drawing & Painting), College Education, in pursuance of the selection made by the RPSC and as per the merit list prepared on 5.4.1996. 5. Reply has been filed by the respondents. It is stated that the so called husband of the petitioner Shri Quazi was having two daughters from his earlier wife Smt. Meenakshi and a complaint was made in this regard to the effect that the said husband had married to second wife i.e. the present petitioner. 5. Reply has been filed by the respondents. It is stated that the so called husband of the petitioner Shri Quazi was having two daughters from his earlier wife Smt. Meenakshi and a complaint was made in this regard to the effect that the said husband had married to second wife i.e. the present petitioner. On receipt of the complaint, verification was made and it was found that a criminal complaint was pending before the judicial court and, therefore, it was decided not to offer any letter of appointment to the petitioner. It is admitted that the petitioner had been selected and she was on merit No. 7. It is also admitted that the persons junior to the petitioner and even the persons on waiting list have been offered the appointment. The case of the respondents is that during the pendency of the private criminal complaint made by the earlier wife Meenakshi, which is pending before the Additional Chief Judicial Magistrate, no appointment can be offered to the petitioner. Annexure R/4 dated 1.7.1997 is a letter written by the Deputy Secretary (Admn.) to the effect that because of the reason that a criminal case of the petitioner is pending before the trial court in regard to marriage dispute of the earlier wife of Mr. Quazi, there is no question of offering any appointment to the petitioner. 6. It is submitted by the counsel for the petitioner that in no circumstance, she could have been punished by depriving her from the appointment as Lecturer, even assuming that any criminal complaint was pending. It is further submitted that the petitioner had resigned her earlier post of Teacher Grade III and, therefore, until and unless she joins the service and even assuming the facts to be true, she cannot be accused of any misconduct under the Conduct Rules belonging to the Government servant until and unless she is offered the appointment. It is also the case of the petitioner that only because of the reason that some private complaint has been filed because of the strained relations of Ex-wife of her husband, she cannot be deprived of right of livelihood. It is also the case of the petitioner that only because of the reason that some private complaint has been filed because of the strained relations of Ex-wife of her husband, she cannot be deprived of right of livelihood. She says that she has not voilated and Rule of law, she has not committed any bigamy and in case she has married a person who according to her has already divorced, there was hardly any authority with the respondents to have passed an order Annexure R-4 for depriving the petitioner of the employment and thus, the fundamental right of the petitioner under Article 14 and 16 of the Constitution of India is infringed. She prays that the action of the respondents be quashed to be discriminatory and arbitrary. 7. Reliance is placed on a judgment of this court in the case of Prakash Babu Bajpai Vs. Union of India & Ors. 1995(1) RLR 157 = 1995(3) WLC (Raj.) 307 wherein existence of second marriage was disputed. It was held that it was not proper on the departmental authority to take upon themselves such onerous task of deciding legal questions requiring specialised knowledge of law. It was said that the departmental authority ought to have left questions of such complicated nature for determination by general Courts of law and discharge from service made was held to be bad. The action was taken against the petitioner in Prakash Baru Bajpai's case on the alleged allegations of second marriage wherein the petitioner had been denied the same and it was held that such determination of question was left with the courts and departmental authority should not have taken on themselves such onerous task of deciding such legal questions. 8. Counsel for the respondents states that as per the instructions issued by the department before offering any appointment, verification of the antecedents of the candidate are to be verified and in the present case, the respondents had come to know about the facts as mentioned above and, therefore, was justified in not offering the appointment to the petitioner. 9. The petitioner had married one Quazi. Whether Quazi was already divorced or not was a question which does not fall within the powers of the respondents to adjudicate upon such matter. 9. The petitioner had married one Quazi. Whether Quazi was already divorced or not was a question which does not fall within the powers of the respondents to adjudicate upon such matter. If any dispute is pending between said Quaji and his earlier wife, it cannot be said that the petitioner has committed any misconduct in this regard in marrying Mr. Quazi. 10. Apart from above, the conduct rules are applicable to the candidates once they enter into service. Admittedly, the petitioner had not been appointed in the job as yet and, therefore, it cannot be said that she had violated any Government conduct rules. Even otherwise the petitioner has been selected on merits and is on merit list. The appointment to the petitioner cannot be denied to her on unproved allegations or on the unproved complaint made by any third party. 11. For the reasons mentioned above, the writ petition is allowed and the respondent non-petitioners are directed to offer the appointment letter of the post of Lecturer in Drawing and Painting in pursuance of the selection made by the Rajasthan Public Service Commission and give to her the seniority as per her position in the merit list dated 5.4.1996 prepared by the RPSC with all consequential benefits which might have accrued to the petitioner had she not been deprived of her legal right of appointment.Petition Allowed. *******