1 DBSAW No.82/2013 With 3 connected appeals IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: :: JUDGMENT
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1. D.B. Civil Special Appeal No.82/2013 State of Rajasthan & Ors. Vs. Ms. Jamna Rajpurohit 2. D.B. Civil Special Appeal No.84/2013 State of Rajasthan Vs. Parwati Suthar & Anr.
3. D.B. Civil Special Appeal No.94/2013 State of Rajasthan Vs. Smt. Meena Purohit & Anr.
4. D.B. Civil Special Appeal No.127/2013 State of Rajasthan & Ors. Vs. Bharti & Anr. DATE OF JUDGMENT
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30. h August 2013 PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE ARUN BHANSALI Mr.G.R. Punia, Sr. Advocate & AAG with Mr. Jamwant Gujar and Ms. Shweta Bora for Dr.G.R. Kalla, for the appellants. <><><> Reportable BY THE COURT: (Per Dinesh Maheshwari,J.) These four intra-court appeals, involving an identical question on similar nature facts and arising out of similar nature orders passed in the respective writ petitions, have been considered together; and are taken up for disposal by this common order. Each of these appeals is reportedly time-barred by a few days and some of them carry other defects too. However, looking to the subject-matter, while ignoring delay and other defects, we have heard the learned counsel for the appellants on merits. The relevant common features of these appeals are that the respondents herein filled up the respective application forms offering their candidature in different recruitments processes taken up by the appellants for the posts of Teacher Grade-III and Teacher Grade-II. 2 DBSAW No.82/2013 With 3 connected appeals Each of the respondents was a married woman at the time of filling up the application form; and offered her candidature accordingly. However, unfortunately, the husband of each of the respondents expired after her filling up the form but before completion of the recruitment process. The appellants having provided special reservation for widow, divorcee and destitute women, the respondents made the prayer for consideration of their candidature against widow category. The appellants declined such a prayer with reference to the stipulations in the respective advertisements that no alteration in the particulars stated in the application form was permissible after the last date for submission of the form. Aggrieved, the respondents preferred the respective writ petitions, which have been allowed by the orders sought to be questioned in these intra- court appeals. In fact, the writ petition filed by the respondent of SAW No. 82/2013, Ms. Jamna Rajpurohit, being CWP No. 8899/2012, came to be allowed by a learned Single Judge of this Court on 29.08.2012. Thereafter, the writ petitions filed by the respondents of other appeals, being CWP Nos.2480/2012, 2734/2012 and 4798/2012 respectively, were allowed by another learned Single Judge of this Court on 13.09.2012, essentially following the decision in the case of Ms. Jamna Rajpurohit. The relevant factual aspects could be noticed as follows: The respondent of SAW No.82/2013, Ms. Jamna Rajpurohit (hereafter referred to as the ‘writ-petitioner’) filed the writ petition (CWP No.8899/2012) with the submissions that pursuant to an advertisement dated 27.02.2012 (Annex.1) inviting applications for 3 DBSAW No.82/2013 With 3 connected appeals Direct Recruitment Competitive Examination-2012 for the post of Teacher Grade-III under Zila Parishad, Pali, she applied by filling up on-line application form on 24.03.2012. At the relevant time, she was falling in general category and filled up the form accordingly. The writ-petitioner was called for written examination on 02.06.2012 and appeared therein. However, unfortunately, the husband of the writ-petitioner expired on 18.06.2012. Thereafter, result of the examination taken by the writ-petitioner was declared on 24.08.2012. In the meanwhile, she had submitted a representation on 02.07.2012 for consideration of her candidature under widow category for her husband having expired. The District Examination Controller, Pali, of course, recommended her case for sympathetic consideration to the Secretary, Panchayati Raj Department, Government of Rajasthan. However, the claim of the writ-petitioner for consideration of her candidature in widow category came to be rejected on 08.08.2012 (Annex.9) with reference to clause 19 (1) of the advertisement, which provided that no alteration was permissible in the particulars stated in the on-line application form after the last date of submission of the application. Accordingly, the Chief Executive Officer, Zila Parishad, Pali informed the writ-petitioner about rejection of her representation under the communication dated 24.08.2012 (Annex.10). Assailing the aforesaid communication dated 24.08.2012 and seeking relief of consideration of her candidature in widow category, the writ-petitioner submitted before the learned Single Judge, inter alia, that out of total seats reserved for widow category, only 16 candidates had been made available and herself having secured 4 DBSAW No.82/2013 With 3 connected appeals 110.17 marks, would be standing at serial No.2 in the merit, if considered under widow category. The writ-petitioner submitted that the remaining seats were sought to be filled up by general category candidates while ignoring the peculiar facts and circumstances of her case. It was contended that the rigor of clause 19(1) of the advertisement could not have been applied to her case while ignoring the fact that at the time of her filling up the application form, her husband was very much alive; and that her husband unfortunately expired on 18.06.2012, much after filing of the application form. The learned Single Judge of this Court found justified the submissions of the writ-petitioner and proceeded to allow the writ petition by the order dated 29.08.2012, inter alia, with the following observations:- “It is not in dispute that the petitioner applied under the General category but it is also correct that before declaration of result her husband died on 18.06.2012 which is a natural calamity. Therefore, obviously the fact of death of petitioner’s husband was to be considered by the authorities of the welfare State in view of the fact that women fall under the weaker section of the society as per Article 16 of the Constitution of India. The petitioner is only asking for considering her candidature for appointment as Teacher Grade-III (Second Level) under the “Widow” category as per her merit in the written-examination. In my opinion, the decision has not been taken by the authority concerned objectively because the respondents themselves are changing category at their own for the candidates belonging to SC/ST/OBC to General category if they secure marks to compete as per their merit with General category and considering those reserve category candidates under the General category; meaning thereby, the candidates belonging to SC/ST/OBC category are getting benefit of change of category from reserve class to General if found meritorious, then, same analogy can be put into operation for young widows also. Further, it is important to take judicial note of the fact that unlike other reserve categories the status falling under the “Widow” category purely rests upon happening of an event in the course of life of a woman and no sooner husband of a woman dies she is rendered widow for all purposes including her consideration for employment purposes under the widow category and denial shall rather render the proceedings vitiated and violative of the Constitutional provision. Therefore, the concerned authority was under obligation to to exercise its power for granting relief to the petitioner. However, it has not been done in this case. In the facts and circumstances of this case, I deem it appropriate to direct the respondents to consider the candidature 5 DBSAW No.82/2013 With 3 connected appeals of the petitioner under the category of widow for the reason that before declaration of the result after appearing in the examination the husband of the petitioner died on 18.06.2012. In view of the above discussion, this writ petition is allowed. Impugned order Annex.-9 dated 08.08.2012 passed by the Principal Secretary, Panchayati Raj & Rural Department, Government of Rajasthan, Jaipur, so also, communication Annex.-10 dated 24.08.2012 passed by the Zila Parishad, Pali are quashed and set aside. The respondents are directed to consider the candidature of the petitioner for appointment on the post of Teacher Grade-III (Second Level) in Social Studies subject as per her merit under the “widow” category.” The respondents (writ-petitioners) of other appeals (SAW Nos.84/2013, 94/2013 and 127/2013) had been the candidates in response to an advertisement issued by the Rajasthan Public Service Commission on 31.05.2011/01.06.2011 for recruitment to the post of Teacher Grade-II. These writ-petitioners had also filled up their application forms within time. The husband of SAW No.84/2013 expired on 25.08.2011. Similarly, the respondent of SAW No.94/2013 lost her husband on 30.10.2011. The same unfortunate event befell the respondent of SAW No.127/2013 on 26.12.2011. The similar nature requests made by these respondents for consideration of their candidature against the vacancies earmarked for widows having been declined, they too preferred the writ petitions, which have been allowed by the common order dated 13.09.2012 while following the decision in Ms. Jamna Rajpuohit’s case (supra); and the appellants have been directed to consider their cases for the purpose of appointment as Teacher Grade-II under the widow category besides their own ordinary category and, to accord them appointment in accordance with law, if standing in merit. Seeking to question the orders so passed in the respective writ petitions, the submissions on the part of the appellants are that the 6 DBSAW No.82/2013 With 3 connected appeals candidature of the individual candidate has been and could be considered only on the basis of the application made by the candidate herself; and the selection is to be made category-wise. It is submitted that the process of selection being open, transparent, uniform, and fair, no candidate could be permitted to seek a change in the category at a belated stage; and that the status of a candidate existing at the time of filling up of the form cannot be permitting to be changed with reference to any subsequent event. It is further submitted that if the candidates like the writ-petitioners are permitted to change the category, the selection process would become uncertain and would cause prejudice to the other candidates; and it may also lead to the other candidates seeking a change-over. It is also submitted that the observations occurring in the order passed in Ms. Jamna Rajpurohit’s case are not in accord with law where the learned Single Judge has referred to the event of the candidate belonging to SC/ST/OBC category being given the benefit of change of category from reserved to general, if found in merit. It is submitted that legality of such an event is neither of analogy nor could be applied to the present cases. We have given anxious consideration to the submissions made on behalf of the appellants and having perused the material placed on record. We may, at once, observe that the contention as urged on behalf of the appellants, against a part of the observations occurring in the impugned order dated 29.08.2012, cannot be considered to be wholly without substance where the learned Single Judge has proceeded to draw an analogy to the event of SC/ST/OBC category 7 DBSAW No.82/2013 With 3 connected appeals candidates being switched over to general category on the basis of their merit. True it is that, ordinarily, if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved category candidate and is not deprived of the right to be considered as a general category candidate. However, this event is not that of change of category as such. Without much dilatation on this aspect, suffice would be to observe for the present purpose that the questioned observations occurring in the order impugned could be left out of consideration and need not be approved. However, we are clearly of the view that other observations and findings in the orders impugned cannot be said to be unjustified; and we are satisfied that the ultimate relief, as granted to the respondents (writ- petitioners), remain justified from every point of view and does not call for any interference. The appellants have repeatedly harped on the stipulations of the nature as contained in clause 19 (1) of the advertisement dated 27.02.2012 which reads as under:- “(1) आवदन पत पस करन क अन म ददन क 2.04.2012 र तत 12.00 बज क आनल ईन आव दन पत सव!क र ककय ज य $ग$ । तपशच त उक व बस ईट पर उपलब0 आनल ईन सससटम सव : ह4 ब द ह5 ज य ग । आनल ईन आव दन क समस पववव7य प र 8 : एव सह4 नह4 ह5न पर आवदन पत असव!क< कर ददय ज वग । आनल ईन आव दन पत म $ द4 गई ज नक र4 क सलए नजममद र4 आव दक क ह5ग!। आव दन पत म $ क गई पववव7य> म $ अन म ददन क क ब द ककस! भ! पक र क पररव न : क अन मत नह4 द4 ज य ग! और न ह4 इस ब ब पस ककस! प र न : पत पर ववच र ककय ज यग ।" Such a stipulation appears to be logical to some extent and the appellants appear to be right in their assertion that in an ordinary case, the particulars stated in the application cannot be permitted to 8 DBSAW No.82/2013 With 3 connected appeals be altered, lest it becomes an unending process. However, the appellants, representing a welfare State, appear totally perfunctory in their approach when suggesting that even the categorization of a married woman to a widow upon happening of an unfortunate event, i.e., demise of her husband after filing of the application, could also be considered hit by the stipulation aforesaid. The stipulation as occurring in clause 19(1), obviously, operates in the case where the candidate has filled up the application form stating his/her category and after the last date, seeks change of the category or any other particular stated in the application. The said stipulation directly relates to an attempt by the candidate to seek alteration of the particulars in the application form on his/her own volition. The prayer for such nature alteration can, of course, be denied under the said stipulation but then, the same cannot be considered operating in the case of present nature where the woman candidate is neither seeking alteration of any particulars stated in the application nor seeking change of category of her own accord or on account of any of her mistake. The prayer herein had been for consideration of the case of the individual writ-petitioner in widow category because of an unfortunate event, and because of a peculiar reason, that she was rendered a widow after filling up the application form upon demise of her husband. It remains a matter of hard reality and of fact that each of the writ-petitioners was a married woman with her husband very much alive at the time of her filling up the application form. They had submitted the form and filled in the category as applicable. It had been an unfortunate aspect that after filling up of the forms, they lost 9 DBSAW No.82/2013 With 3 connected appeals their respective husbands. The cases of the writ-petitioners could not have been considered as that of seeking any ‘permission’ to change the category. In fact, their category got changed for vis major over which, they had no control; rather they would have never wished it to happen. Vis major i.e., act of God, refers to an occurrence taking place exclusively due to natural causes, and being of external nature, and further being the one which cannot be anticipated or provided against. Sudden demise of a person remains essentially a matter beyond the control and anticipation of human beings. Such an unfortunate event could nevertheless happen, as has happened in the present cases. The appellants cannot be considered justified in suggesting that such an unfortunate event can also be ignored by them with a perfunctory reference to the stipulation like the one referred above. It remains trite that the law does not envisage nor countenance an absurdity or impossibility. The propositions of the appellants, running against the very fundamentals of law, are required to be rejected. We are further of the view that when the appellants have provided for a special reservation to a category of persons requiring help and support of the State i.e., the women suffering widowhood, any provision in that relation ought to be applied with a practical approach and with due respect to the ground realities. The very object behind reservation for widow category would be defeated, if not rendered illusory, if the peculiar facts and circumstances of the case of a woman suffering widowhood after filling up of the application form but before completion of recruitment process, are 10 DBSAW No.82/2013 With 3 connected appeals ignored and she is not considered for appointment in widow category. We are at one that the observations in the orders impugned that in these cases, the concerned authorities were rather under an obligation to consider the candidature of the writ-petitioners in widow category. In view of the above, these appeals stand dismissed summarily, subject, of course, to the observations foregoing. mk (ARUN BHANSALI),J.
(DINESH MAHESHWARI),J.