The possession of a valid divorce decree at the time of application is essential for claiming eligibility as a divorcee for a specific position, and shifting stands on the validity of a separation document are impermissible in law.

JUDGMENT

Brief facts of the matter are as under : -

1. The present petitioner applied for the Teacher Grade III Direct Recruitment Competition Examination, 2013 (Level I General Teacher). While applying online, she applied in the category of divorcee. After declaration of the result, the petitioner stood in merit and therefore was called for the document verification vide order dated 02.06.2018. On the date of document verification she was not in possession of any divorce decree as was required in terms of Sub-Clause (ix) and (x) of Clause 11.2 of the advertisement and therefore, she was not afforded appointment. Aggrieved against the same, the present writ petition has been filed.

2. A perusal of the record shows that an application under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as "Act of 1955") was moved on behalf of the petitioner and her husband on 04.06.2018, that is, after the date of the issuance of the order for document verification.

3. Counsel for the petitioner submitted that vide customary rituals, "chhutpalla" had already taken place between the parties on 23.10.2015 and therefore the petitioner had effectively been judicially separated since that date. Counsel further submitted that keeping in view the said document dated 28.10.2015 only, the decree for divorce on the basis of mutual consent had been granted by the competent Court on 08.08.2018. Therefore, the earlier customary document ought to have been considered, the same being a valid document establishing her to be a divorcee. He further submitted that even vide interim order dated 19.06.2018, the petitioner's candidature was directed to be considered provisionally in the category of OBC (divorcee) and now, as the seats still remain vacant, she should be afforded appointment.

4. Per contra, counsel for the respondents submitted that as per the specific terms of Sub-Clause (ix) and (x) of Clause 11.2 of the advertisement, the petitioner ought to have had a decree of divorce on the date of filling of the application form which in the present case is admittedly not there. He further submitted that even the application under Section 13-B of the Act of 1955 had been filed on 04.06.2018 and therefore, the decree granted in pursuance to the same can even otherwise not fulfill the criteria as laid down in the advertisement.

5. Counsel relied upon the Division Bench judgment passed in D.B.C.W.P. No.1004/2004 (Parul Khurana v. High Court of Judicature for Rajasthan & Anr., decided on 27.01.2022).

6. Heard the learned counsel for the parties and perused the record.

7. A bare perusal of the reply as filed by the petitioner to the application under Section 13 of the Act of 1955 filed by her husband clarifies that she has specifically denied the execution of the so called "chhutpalla" in the said reply.

8. In the said reply, she had specifically averred that some blank papers were got signed by her by fraud and therefore, no such document of separation was valid.

9. Therefore, it is clear on record that the petitioner had been taking shifting stands and the same cannot be said to be permissible in terms of law. The petitioner cannot, deny the execution of a particular document before one forum and rely on the same before another forum.

10. Further it is clear on record that on the date of filing of the application form, that is, 30.04.2018, the petitioner did not possess a decree for divorce and therefore, she could not have applied under the category of divorcee. As laid down in Parul Khurana's case (supra), "There is nothing in law which can permit a candidate to apply in the said category in the expectancy that a decree would be granted." The Court further held as under : -

"As a matter of fact, she made a mis- statement of being divorced while applying against the seats reserved for Divorcee Female aspirants. Hence, the respondents were absolutely justified in rejecting the petitioner's candidature by the impugned notice dated 15.12.2021 which is pe