JUDGMENT :

(Kuldeep Mathur, J.)

1. The instant intra court appeals involve common question of law and hence, the same are heard and decided together by this order.

2. The question to be adjudicated upon is whether an applicant who has taken customary divorce is entitled to apply in the category of ‘Divorcee Female’, without presenting decree of divorce granted by competent civil court before the cutoff date, as stipulated in the terms and conditions governing the recruitment process.

3. It is pleaded that respondent Nos.1 in the appeals belong to Scheduled Tribe/Tribal Sub Plan Area and had applied against advertised posts indicating their categories as ‘Divorcee’. The respondents however, at the time of document verification were disqualified on the count that they did not possess a decree of divorce as on the last date of filing application forms. Being aggrieved by the non-inclusion of the names in the final select list, the respondents approached the learned Single Bench seeking a direction upon the appellants for appointment under ‘Divorcee’ category.

4. Learned Single Bench allowed the writ petitions holding that the respondents belong to Scheduled Tribe community and therefore, the provisions of Hindu Marriage Act, 1955 are not applicable upon them in light of Section 2(2) of Hindu Marriage Act, 1955 thus, the condition of submitting divorce decree, issued by a competent court cannot be fastened upon them. The appellant-respondents were directed to include the name of the respondents in the select list on the basis of customary dissolution of marriage and provide them appointment from the date candidates lower in merit were granted appointment, if they are otherwise eligible.

5. Learned counsel for the appellants submitted that a candidate who applies for a particular post under ‘Divorcee’ category must be possessed of a decree of divorcee on the last date of submission of application form so as to make the candidate eligible for consideration against the post reserved for candidate belonging to said category. Learned counsel submitted that the customary practices for divorce may be prevalent in tribal communities but that would be confined to social purposes only. However, in order to claim appointment under questioned selection process, a candidate would be governed by the terms and conditions set out for the selection process. Learned counsel further submitted that the general instructions issued to the candidates clearly stipulate a condition that a decree of divorce is essential for consideration of candidature for appointment against quota of divorcees. To fortify the aforesaid contention, reliance was placed on the judgment rendered by co-ordinate Bench of this Court in the case of Rajasthan State Public Service Commission & Anr. vs. Reetu Kalasua & Anr.: D.B. S.A.W. No.1193/2014 decided on 22.01.2016.

6. Per contra, learned counsel for the respondents submitted that the respondent-writ petitioners belong to Scheduled Tribe/Tribal Sub Plan Area where customary divorce is prevalent since time immemorial which is accepted as a valid process of marriage dissolution in Hindu Laws. Learned counsel further submitted that Section 2(2) of Hindu Marriage Act, 1955 makes it evident that the said Act does not apply to Scheduled Tribes who are governed by the customs prevalent in their respective communities. Therefore, once it is established that divorce has been obtained as per customs, the denial of appointment for want of decree of divorce by a competent court is not sustainable in the eyes of law. Reliance was placed on the judgments rendered by this Court in the cases of Sunita Meena vs. State of Rajsthan & Ors: S.B. C.W. No.3991/2015 and Rajasthan Public Service Commission vs. Sunita Meena & Ors.: D.B. S.A.W. No.829/2017.

7. Heard submissions advanced at Bar and perused the material available on record.

8. Hon’ble the Supreme Court of India in the case of Ashok Kumar Sonkar vs. Union of India, reported in (2007) 4 SCC