- (1.) IN pursuance to the advertisement dated 01.06.2013 for recruitment inter alia to the post of Chikitsaadhikari (Homoeopathy) under the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathic Service Rule, 1973, the petitioner applied before the last date of 30.06.2013. At the relevant time, the petitioner sought consideration for appointment in the OBC (female) category. While recruitment process was underway and the application of the petitioner for appointment to the post of Chikitsaadhikari (Homoeopathy) was under consideration, the petitioner, married at the time of applying for the post in issue, moved a petition under Section 13B of the Hindu Marriage Act, 1955 (hereinafter "the Act of 1955") for divorce by mutual consent on 09.06.2014. The decree of divorce followed on 03.01.2015. The petitioner thereafter approached the respondents by way of an application on 06.04.2015 praying that her pending application be considered not in the category of OBC (female), but in that of OBC (female divorcee) in view of her divorce dated 03.01.2015. The respondents did not address the petitioner's request for change of her category for appointment to the post of Chikitsaadhikari (Homoeopathy). Aggrieved the petitioner has approached this Court seeking a direction that her application for appointment to the post of Chikitsaadhikari (Homoeopathy) made in pursuance to the advertisement dated 01.06.2013 in the category of OBC (female) be considered in the category of OBC (female divorcee).
(2.) MR . Ashok Bhargava, appearing for the petitioner has submitted that a divorce is a matter not the making of the petitioner alone. Owing to disharmony in her married life rather than go through a long debilitating divorce proceedings, the petitioner and her ex -husband decided to part ways by resorting to Section 13B of the Act of 1955. It was in the circumstances that the application was moved on 09.06.2014 whereby the decree of divorce by mutual consent was passed on 03.01.2015. It has been submitted that the status of the petitioner thereupon stood altered to that of a divorcee and as the appointment process is yet not complete, the petitioner's case should be considered in all justness in the category of OBC (woman -divorcee). He submitted that vide advertisement dated 01.04.2015 published in the Rajasthan Patrika, all prospective applicants for appointment as Chikitsaadhikari in Homoeopathy / Unani / Ayurveda were required to seek rectification/amendment in their applications, if so warranted, by 10.04.2015 before finalization of the select list. It has been further submitted that this Court in the case of Datar Singh Vs. State of Rajasthan and Anr., SBCWP No.9170/2012, decided on 11.09.2012 has held that minor defects in the application for appointment to the various posts should not be allowed to obstruct the fair consideration on an applicant to a post advertised. Counsel submitted that in the circumstances, a direction be issued to the respondents to treat the petitioner as a candidate seeking appointment pursuant to the notification dated 01.06.2013 to the post of Chikitsaadhikari (Homoeopathy) in the category of OBC (female divorcee).
(3.) MR . S.K. Gupta, AAG appearing for the respondents has submitted that it is well settled that eligibility of a candidate has to be determined on the last date of the applications were so provided as it was in the instant case. He submitted that if it were not so, changes in the status of the applicants subsequent to the last date of the application would entail an ongoing rectification process and delay recruitment process beyond control. Under the advertisement dated 01.06.2013 in issue the last date for submitting applications was 30.06.2013. Note 6.3 of the advertisement stated that a candidate applying for consideration for appointment as Chikitsaadhikari (Homoeopathy) amongst others as a divorcee was required to file a decree of divorcee along with the application evidencing the dissolution of her marriage. It has been submitted that admittedly on the last date of the application, the applicant was not a divorcee. In fact the application for divorce by mutual consent under Section 13B of the Act of 1955 was filed on 09.06.2014 (Case No.653/14) and the decree of divorce dissolving the petitioner's marriage passed on 03.01.2015. Counsel submitted that in these circumstances, the change of status of the petitioner from a married woman to divorcee subsequent to the last date of the application i.e. 30.06.2013, in fact over a year and half thereafter, cannot be taken into consideration and the petitioner cannot, in respect of the recruitment pursuant to the notification dated 01.06.2013, be considered as an OBC (female divorcee). She can be so considered only in future recruitments. Mr. Gupta has relied upon the judgment of the Hon'ble Supreme Court in the case of Bedanga Talukdar Vs. Saifudaullah Khan and Ors, 2011 12 SCC 85 wherein the Hon'ble Apex Court has held that the terms and conditions of a recruitment should be strictly complied with. Relaxation thereof can be warranted, if the advertisement itself so provides. It is submitted that in the instant case, there is no provision for relaxation of the conditions under which the recruitment was initiated on 01.06.2013. The status of the applicant has therefore as of necessity to be frozen as on 30.06.2013, the last date for submission of the application form. Mr. Gupta submitted that in the event the petitioner were allowed to change her category from OBC (female) to that of OBC (female divorcee), it would tantamount to the change of the selection procedure in as much as the petitioner would then be entitled to have a status as obtaining on 03.01.2015 when she obtained the decree of divorce and not on 30.06.2013 which was the last date for submission of application form for consideration for appointment to the post of Chikitsaadhikari (Homoeopathy). Mr. Gupta further submitted that the Hon'ble Supreme Court in the case of Union of India and Ors. Vs. Dalbir Singh and Anr., 2009 7 SCC 251, held that where a candidate applied in the OBC category but subsequently for reason of his OBC certificate not being accepted, he could not be considered for appointment as a General category candidate. Counsel submitted that it is thus apparent that a category in which an applicant applies, cannot be subsequently changed. Referring to the judgment in the case of Datar Singh as upheld by the Hon'ble Division Bench in the case of State of Rajasthan and Anr. Vs. Datar Singh, D.B. Civil Special Appeal (W) No.875/2012 and other connected matters decided on 11.02.2013, Mr. Gupta has submitted that the facts of the aforesaid case are wholly distinct from the facts of the present case. He has pointed out that in Datar Singh , the issue was with regard to the effect of an incomplete application form wherein the applicant Datar Singh could not indicate while applying to the post of Teacher Grade -III submitted online though E -Mitra Kiosk that he was a resident of tribal sub plan area even he was so on the date of the application. Consequently his case was not being considered in the quota reserved for such residents of tribal sub plan area. It is submitted that it was in this context that the learned Single Judge and the Hon'ble Division Bench held that the error in the form not being attributable to the petitioner and yet destructive of his legal rights was to be overlooked and the petitioner's status as a resident of tribal sub plan area as on the last date of the application was to be considered. Counsel submitted that the case at hand is not of a similar nature as the petitioner's case is not of an incomplete application form for reason not attributable to her yet occasioning her non -consideration. In the instant case, the petitioner in fact seeks to be taken on record not a fact obtaining on the last date of the submission of the application form but a subsequent event over a year and half after the last date of application to be taken on record. Learned AAG referring to the advertisement dated 01.04.2015 submitted that it also does not help the case of the petitioner. He submitted that the advertisement dated 01.04.2015 mere states that the data as submitted by the applicants with their application forms for appointment to the post of Chikitsaadhikari in Homoeopathy / Unani / Ayurveda had been uploaded and in the event there was any error in the data uploaded vis a vis infomration already supplied, it could be notified to the respondents such that necessary correction as per initial information supplied could be made in the said data. It is submitted that the advertisement dated 01.04.2015 cannot be construed, albeit the word "amendment" is also used in the said advertisement, to allow the petitioner to seek a change of her category from OBC (female) to OBC (female divorcee).;