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2015 DIGILAW 169 (RAJ)

Anjna Garg v. State of Rajasthan

2015-01-20

BELA M.TRIVEDI

body2015
JUDGMENT 1. - The present petition has been filed by the petitioner under Article 226 of the Constitution of India seeking direction against the respondents to the effect that the inaction/omission on the part of the respondents in not considering the candidature of the petitioner in the category of divorcee be held to be arbitrary and illegal, and further directing the respondents to issue order of appointment considering her case under the category of divorcee. 2. It appears that the petitioner had applied for the post of Teacher Grade-II pursuant to the advertisement published by the respondent-RPSC on 01.06.2011. According to the petitioner, her case for divorce was pending in the Court, and therefore she had applied in the general category, however soon after getting the decree of divorce, she had made an application on 16.12.2011 to the respondent-RPSC to consider her candidature in the category of divorcee. It is further case of the petitioner that the petitioner was informed that her matter with regard to general category was kept pending with the respondent-Commission, however the case was not considered under the category of divorcee, when the result was declared by the RPSC. It is also further case of the petitioner that she had secured 292.37 marks in the competitive examination conducted by the RPSC, whereas the cut off marks for general divorcee category for the post of Teacher Grade-II (Science) was 256.4, and therefore if she was given benefit of divorcee category, she would have got the appointment. 3. The petition has been resisted by the respondent-RPSC filing the reply, contending interalia that the petitioner had submitted her application on 10.08.2011, whereas she had obtained decree of divorce on 05.09.2011, and therefore on the date of submission of application form, she was not divorcee. It is also contended that as per the settled legal position, the petitioner could not be allowed to change the category more particularly when she was not entitled to get the benefit of divorcee category, she being not the divorcee on the date of submission of application form. The Commission has also contended that the petitioner had submitted the application under the general category, for which the cut off marks fixed was 315.50 in the result declared by the RPSC, whereas the petitioner had secured only 292.37 marks, and therefore she could not claim for the appointment on the post in question. 4. The Commission has also contended that the petitioner had submitted the application under the general category, for which the cut off marks fixed was 315.50 in the result declared by the RPSC, whereas the petitioner had secured only 292.37 marks, and therefore she could not claim for the appointment on the post in question. 4. It is submitted by the learned counsel Mr. Shiv Charan Gupta, for the petitioner that the Rule for reservation for divorcee being benevolent legislation, the respondent should have permitted the petitioner to change the category if on the date of declaration of the result, the petitioner was divorcee, taking lenient view in the matter. He also submitted that the respondent should see the status of the petitioner on the date of the declaration of the result and not on the date of submission of the application. Mr. Gupta has relied upon the decision of this Court in case of Reetu Kalasua v. State of Rajasthan & Ors., (S.B. Civil Writ Petition No. 867/2012) decided on 26.02.2014 and of Delhi High Court in case of Ms. Sunita v. Govt. of Nct of Delhi & Ors., reported in 119 (2005) DLT 368 and of Jammu High Court in case of Jammu and Kashmir SSRB & Anr. v. Narinder Paul Chaudhary & Ors., decided on 12.07.2011 , to submit that pending the selection process, the petitioner should be allowed to change the category. 5. However, the learned counsel Mr. Dilip Singh Shekhawat for the respondent No.2-RPSC, relying upon the various decisions of Supreme Court and this Court, submitted that eligibility of the candidate should be considered on the date of submission of application or at the most on the last date fixed for submission of the application. He also submitted that the entire process of selection in respect of the examination held in 2011 has already been over, and that the petitioner had also applied and has been selected on the said post of Teacher Grade-II (Science) in the examination held in the year 2013. According to him, the present petition as such does not survive. 6. Having regard to the submissions made by the learned counsel for the parties, and to the documents on record, it appears that admittedly the petitioner had applied in the general category for the post in question. According to him, the present petition as such does not survive. 6. Having regard to the submissions made by the learned counsel for the parties, and to the documents on record, it appears that admittedly the petitioner had applied in the general category for the post in question. The only contention raised by the learned counsel for the petitioner is that the petitioner should have been permitted to change the category considering the subsequent decree of divorce obtained by her. In the opinion of the Court, the issue is no more res-integra. This Court while dealing with the similar issue in case of Subita Fageria v. RPSC, decided on 23.11.2012 , had dismissed the petition relying upon the various decisions of the Hon'ble Supreme Court, and held as under:- ".....The law on the issue is well settled inasmuch as the controversy came up for consideration before the Hon'ble Apex Court as to what would be the crucial date for adjudging eligibility of a candidate. The Hon'ble Apex Court held that one should possess eligibility on or before the date if it is given in the rules. If the rules are silent then the date given in the advertisement. If both are silent then the last date of submission of the application form. Relevant part of the judgment of Hon'ble Apex Court in the case of Shankar K. Mandal & Ors. v. State of Bihar & Ors. reported in (2003) 9 SCC 519 is quoted hereunder for ready reference: "The principles culled out from the decisions of this Court (See Ashok Kumar Sharma and Ors. v. Chander Shekhar and Anr. ( 1997 (4) SCC 18 , Bhupinderpal Singh v. State of Punjab ( 2000 (5) SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr. v. Chander Shekhar and Anr. ( 1997 (4) SCC 18 , Bhupinderpal Singh v. State of Punjab ( 2000 (5) SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr. ( 2002 (1) SCC 124 ) are as follows: (1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules; (2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications; and (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority." If the ratio propounded by Hon'ble Supreme Court is applied in the instant case then crucial date to find out the status of a candidate is last date of submission of the application form. On the date of submission of the application form, the petitioner was not having status of divorcee, therefore, she should go with the status she was having on the date of application form and not with the status which took place much subsequent to it." 7. It is also pertinent to note that the Apex Court in case of Dolly Chhanda v. Chariman, Jee & Ors., (2005) 9 SCC 779 , has also held in para 7 as under:- "7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage, etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit of reservation........" 8. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage, etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit of reservation........" 8. In view of the above-stated legal position, the Court does not find any merit in the present petition, more particularly when the petitioner has already got the appointment in the examination held for the said post in the year 2013. In that view of the matter, the petition being devoid of merits, is dismissed. By this order, the stay application also stands dismissed. *******