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Judgment
Amrita Sinha, J
Affidavit-of-service filed in Court today be taken on record.
None appears on behalf of the private respondents in spite of service.
Affidavit-in-reply filed on behalf of the petitioner is taken on record.
An advertisement was published by the District Magistrate, Kharagpur Sadar, Jhargram for appointment of "ASHA" Karmi in the Kharagpur-II Block. Female candidates who were married /divorced /widow were eligible to apply in terms of the said advertisement. The advertisement mentioned that in case of divorce/separation the same should be supported by Government documents. ASHA Karmi has to be a resident of the village from where she applies.
The petitioner applied in response to the said advertisement. The name of the petitioner appeared in the second position of the panel of selected candidates. The name of the private respondent appeared in the first position.
The petitioner is aggrieved by the appointment of the private respondent in the post in question.
It is the specific allegation of the petitioner that the private respondent is ineligible as she is neither a widow nor a divorcee. The document relied upon by the private respondent in support of her marital status cannot be relied upon as the same has not been issued by the competent authority.
The petitioner prays for setting aside the appointment of the private respondent with a direction upon the said authority to issue appointment letter in her favour as she is the second empanelled candidate.
The Deputy Magistrate & Deputy Collector has affirmed an affidavit wherein it has been specifically mentioned that the private respondent declared herself to be a divorcee. She submitted a certificate issued by the Karmadhyaksha, Janaswasthya -O- Paribesh Sthayee Samity, Kharagpur-II Panchayat Samity and the President Kharagpur-II Panchayat Samity. The certificate was in the nature of a declaration that the lady was deserted by her husband for the last ten years and has been residing at her father's home since then.
The affidavit specifically mentioned that the private respondent failed to produce any court document in support of her divorce/separation from her husband.
Heard submissions made on behalf of both the parties.
Admittedly, the eligibility criteria clearly mention that the candidate should be a resident of the village from where she seeks appointment and in case of divorce/separation there should be government document in support of the same.
The private respondent has relied upon a certificate issued by the Panchayat Samity declaring that she was residing at her parent's place as her husband has deserted her.
What falls for consideration is whether the certificate issued by the Panchayat Samity can be relied upon for the purpose of deciding the marital status of a candidate?
The marital status of a candidate is an absolute private information between the husband and the wife. An outsider, far less a member of the Panchayat Samity, can vouch for the marital status or the mutual understanding in between the husband and the wife. According to law, a marriage can be dissolved only by a decree passed by the competent court and not otherwise. Living separately from the spouse does not mean that a party has been deserted by the other party. Parties to a marriage may reside separately for various reasons. Even in case of prolonged separation between the parties the marital tie is not severed and the same remains intact till a pronouncement is made by the competent court. Until and unless the said separation is backed up by law it cannot be said that the marriage has come to an end. Neither can it be said that the parties are separated/divorced.
The Panchayat Samity does not have the authority and jurisdiction to comment upon the marital status of a party. The Panchayat Samity lacks the power and authority to issue certificate declaring that a candidate is separated from or divorced by his/her spouse. The certificate issued by the Panchayat Samity does not qualify as a government document in support of the marital status of a candidate. Such certificates cannot be relied upon for the purpose of providing public employment.
Any other interpretation shall inevitably lead to an anomalous situation as in these hard days of unemployment, candidates may adopt an unhealthy practice to procure certificates declaring marital status from various authorities and lay their claim for employment relying upon the same. The authorities will then exercise their discretion either to accept or not to accept such certificates according to their whims and fancies. When law provides for a specific forum for annulment of marriage, certificate or document issued by any other forum or organization cannot be relied upon for deciding the marital status of a party. The order and decree from the competent court is the only document in support of the marital status of a party.
Accordingly the decision of the respondent authority to issue appointment letter in favour of the private respondent relying upon the certificate issued by the Panchayat Samity, in support of her marital status, is contrary to the advertisement that has been published.
The appointment of the private respondent is liable to be set aside and the same is accordingly set aside.
The respondent authority is directed to take necessary consequential steps for appointment of the next empanelled candidate in the post of ASHA Karmi of the Kharagpur-II Block. Such steps shall be taken by the respondent authority within a period of four weeks from the date of communication of a copy of this order.
W.P. No. 17508 (W) of 2019 is disposed of.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.