BELA M.TRIVEDI, J. - (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. 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 and Ors., (S.B. Civil Writ Petition No.10867/2012) decided on 26.02.2014 and of Delhi High Court in case of Ms. Sunita V. Govt. of Nct of Delhi and Ors., 2005 119 DLT 368 and of Jammu High Court in case of Jammu and Kashmir SSRB and Anr. V. Narinder Paul Chaudhary and Ors., decided on 12.07.2011, to submit that pending the selection process, the petitioner should be allowed to change the category.;