Disposed

Jitendra Nanwal v. State of Rajasthan and Ors.

Rajasthan HC16 Aug 2018CW/11013/2017

Case brief

AI extract

What is this about?

Petitioner sought bonus marks for experience and appointment. Court directed respondents to consider petitioner's representation in light of Manohar Singh precedent within 30 days, ensuring equal treatment for employees engaged via NGOs.

What did the court decide?

Petitioner's writ petition disposed of; respondents directed to consider and decide the petitioner's representation for bonus marks and appointment within 30 days in accordance with Manohar Singh judg

Jitendra Nanwal Vs State of Rajasthan and… — Pension and Retirement Benefits | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ No. 11013/2017

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Jitendra Nanwal S/o Shri Dayachand Nanwal , Resident Of - Behind Sharda School, Ward No. 11, Naya Bass, Churu.

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----Petitioner

¶5

Versus

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The State Of Rajasthan Through The Principal Secretary , Medical And Health Services Department, Government Of Rajasthan, Jaipur.

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The Director, Medical And Health Services , Tilak Marg, Swasthya Bhawan, Rajasthan, Jaipur.

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The Additional Director Administration , Medical And Health Services, Tilak Marg, Swasthya Bhawan, Rajasthan, Jaipur.

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The Principal Medical Officer-Cum-Member Secretary , Rajasthan Medicare Relief Society, Govt. Dedraj Bhartiya Hospital, Churu.

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Sh. Mukesh Kumar Jat S/o Chhitar Lal Jat , C/o Respondent No. 2 The Director, Medical And Health Services, Tilak Marg, Swasthya Bhawan, Rajasthan, Jaipur.

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----Respondents

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For Petitioner(s) : Ms.Archana Joshi. For Respondent(s) : Mr.Rishabh Tayal for Mr.KL Thakur, AAG.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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16/08/2018

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The petitioner has preferred this writ petition with the following relief :-

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“It is, therefore, humbly and respectfully prayed that this writ petition of the Petitioner may kindly be allowed and by appropriate writ, order and direction:-

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(2 of 8)

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[CW-11013/2017]

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(i) The respondents may kindly be directed to consider petitioner for appointment on the post of Pharmacist on and from the date person less meritorious than him, has been so appointed.

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(ii) That if, petitioner is not being granted bonus marks for any reasons, then the respondents may kindly be directed to provide petitioner bonus marks for more than three years of working and by adding the same to his marks of academic qualification, he may be considered for appointment as Pharmacist.”

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2.1 Counsel for the petitioner states that the present controversy is covered by the judgment passed by this Court in the matter of Manohar Singh & Ors, Vs. State of Rajasthan

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(S.B. Civil Writ Petition No.3622/2013, decided on 29.04.2013, relevant portion of which reads as under:-

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“After hearing learned counsel for the parties, first of all, I have perused the amendment (Annexure-4) made by the State Government on 6.2.2013 in the Rules of 1965, which reads as under :-

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“In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Rajasthan Medical & Health Subordinate Rules, 1965 namely :-

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Short title and commencement.- (1) These rules may be called the Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2013.

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(2) They shall come into force on the date of their publication in the Official Gazette.

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Amendment of rule 19.- The existing provisos to rule 19 of the said rules, shall be substituted by following new provisos, namely:-

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“Provided that in case of appointment to the post of Pharmacist, merit shall be prepared by the Appointing Authority on the basis of

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(3 of 8)

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[CW-11013/2017]

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marks obtained in qualifying as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, Chief Minister BPL, Jeevan Raksha Kosh, National Rural Health Mission and Medi Care Relief Society, AIDS Control Society, Institutes under Cooperative Department or Sahakari Upbhokta Bhandar.

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Provided that in case of appointment to the posts other than Pharmacist, which are not in the purview of the Commission, merit shall be prepared by the Appointing Authority on the basis of marks obtained in such qualifying academic examination or professional examination or both as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, National Rural Health Mission and Medi Care Relief Society.

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Provided further that the decision of the Commission or Appointing Authority, as the case may be, as to the eligibility or otherwise of a candidate, shall be final.”

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Upon simple reading of aforesaid amendment made in Rule 19 of the Rules of 1965, it is abundantly clear that in the amendment, it is nowhere provided that what will be the mode of appointment of the employees to whom the bonus marks are to be given, more so, it is specifically provided that such bonus marks as may be specified by the State Government having regard to the length of experience on similar workunder the Government, National Rural Health Mission and Medi Care Relief Society, will be provided. Meaning thereby, once the legislature, with open eyes, did not prescribe mode of appointment to get benefit of experience for the purpose of granting bonus marks then obviously, the petitioners who were appointed through NGO/placement agencies cannot be denied the benefit of bonus marks.

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In the condition No.7 of order dated 11.3.2013, restriction has been imposed for denial of bonus marks to the employees who were provided appointment through NGO/Placement Agency. In the opinion of this Court, the State Government cannot be permitted to make class of employees in a class for which specific bonus marks are provided for experience. The experience is to be acquired by the employees irrespective of the mode of

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(4 of 8)

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[CW-11013/2017]

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appointment. Therefore, the plea of respondents for granting bonus marks only to the employees who were appointed by the Government other than mode of appointment is not sustainable in law because it is totally discriminatory and violative of Article 14 of the Constitution of India. On one hand, the State Government is providing bonus marks for experience to those employees who were appointed by the Government in National Rural Health Mission and Medi Care Relief Society irrespective of mode of appointment and on the other hand, a complete denial is provided vide clause-7 of the order dated 11.3.2013 to the employees who were engaged other than NGO or placement agency. It is nowhere disputed by the respondents that the petitioners are performing the same duties but prayer made in this writ petition is vehemently opposed on the ground that appointment was not made by the State Government as per policy, therefore, those employees who were engaged through placement agency are not entitled for bonus marks. In the opinion of this Court, the argument of Dy. Govt. Counsel runs contrary to the amendment itself because in the amendment, the words 'similar work' is used and not mode of appointment, therefore, bonus marks cannot be denied to the petitioners, who were appointed through NGO or placement agency and are performing the similar work, which is performed by the employees appointed by the Government.

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It is also required to be observed that welfare State is under constitutional obligation to grant equal opportunities to get bonus marks for experience while leaving the unnecessary hurdles for granting bonus marks in recruitment, if they were otherwise eligible.

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With regard to contention of learned counsel for the respondents that controversy is pending before the Division Bench, it is required to be observed that in these writ petitions, the petitioners are challenging the order dated 11.3.2013 (Annex.6) in which condition No.7 is incorporated, which is totally contrary to the amendment made in the Rules vide notification dated 6.2.2013, therefore, this Court is having jurisdiction to examine the validity of the said condition which obviously runs contrary to the amendment made in Rule 19 of the Rules of 1965 for providing bonus marks for experience.

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In view of above Condition No.7 of the order dated 11.3.2013 (Annex.6) is hereby quashed and set aside. The respondent - State is directed to treat the experience of the petitioners at par with those employees who were appointed by the Government in National Rural Health Mission and Medi Care Relief Society and consider their case for appointment while taking into account the eligibility for the post of Nurse

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(5 of 8) [CW-11013/2017]

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Grade-II.

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All above writ petitions are allowed in above terms.” ”

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2.2 The judgment of learned Single Judge in Manohar Singh’s case (supra) was upheld in the judgment rendered by the Division Bench of this Hon’ble Court in State of Rajasthan & Anr. Vs. Manohar Singh & Ors. (D.B. Civil Special Appeal (Writ) No.281/2013, which reads as under:

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““The controversy involved in these matters is common, therefore, the same is decided by this common order.

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The common question involved in these cases is whether the persons engaged through the NGO/Placement Agencies and are working under different schemes run by the State Government for providing medical aid to the public at large, are entitled for bonus marks in lieu of their experience while considering their candidatures for the post of Nurse GradeII advertised by the respondent department on 26.2.2013?

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A coordinate Bench of this Court, in D.B. Civil Writ Petition No.1723/2013 (Mitendra Singh Rathore & Ors. Vs. State of Rajasthan & Ors.) along with 121 connected writ petitions decided on 30.07.2013 while determining the question regarding entitlement of the persons, who are engaged through the placement agencies and working under Mahatama Gandhi National Rural Employment Guarantee Scheme (MGNREGA), for bonus marks in lieu of their experience for appointment on various posts in the Rajasthan Panchayat Samiti and Zila Parishad Services under Rajasthan Panchayati Raj Rules, 1996, has held as under:-

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“The distinction sought to be made with the persons employed through the placement agencies is that those were under the control of the placement agencies and, as such, necessary details pertaining to their experience were with the placement agencies only. Much emphasis is given by the respondents that the State Government or the Panchayati Raj Institutions, as the case may be, entered into agreement with the placement agencies leaving it open for the placement agencies to accomplish the task given through the persons employed by that agency without definite identification of the person concern by the Panchayati Raj Institution. The stand taken by

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(6 of 8)

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[CW-11013/2017]

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the respondents is not at all acceptable at its face. It is not in dispute that the placement agencies are nothing but contractor to supply labour force. The roll of the labour force supplied through contractor is available with the principal employer i.e. the State Government and different Panchayati Raj Institution who availed services of such persons through placement agencies. The State Government, as such, is having all necessary details with regard to the work done by the persons employed through the placement agencies. On having these details, measurement of the experience acquired by the persons rendering service in MGNREGA or under different schemes relating to Department of Rural Development and Panchayati Raj can very well be assessed by the respondents. In any case, this procedural problem can not be a reason valid to make an unreasonable classification. At this stage it is also pertinent to note that the Panchayat Raj Institutions have already issued experience certificates to the persons employed through placement agencies.

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The writ petitions, in view of the discussion made, deserve acceptance, thus, are allowed. The distinction made for grant of weightage against experience earned by the persons employed on the posts of Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Date Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Coordinator IEC, Coordinator Training and Coordinator Supervision through placement agencies in MGNREGA or any other scheme of Department of Rural Development and Panchayati Raj on basis of the mode of their engagement under proviso 2 nd to Rule 273 of the Rules of 1996 is declared illegal.”

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Taking a clue from the above referred decision, we find that the action of the State Government of not granting bonus marks to the employees, who are engaged through NGO/Placement Agencies and working under the various schemes of the State Government for providing medical aid to the public at large, is not tenable and is set aside, and it is declared that at the time of consideration of their candidature for the post of Nurse Grade-II, in pursuance to the advertisement dated 26.2.2013, the persons, who are engaged through NGO/Placement Agencies and are working under the various schemes of the State Government for providing medical aid to the public at large, are also entitled for bonus marks in lieu of their experience at par with the employees, who are appointed through the

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(7 of 8)

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[CW-11013/2017]

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Government agency and working under such schemes.

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We have been informed that the matter regarding grant of bonus marks to all categories of persons is pending consideration before the Hon'ble Apex Court in a Special Leave to Appeal preferred on behalf of the State Government. In such circumstances, we make it clear that above directions will be subject to the decision of above special leave to appeal pending before the Hon'ble Supreme Court in the matter of grant of bonus marks to all categories of persons.

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With these observation/directions, the special appeal and writ petitions are

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disposed of.”

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2.3 The aforequoted judgment of the Division Bench of this Hon’ble Court has been affirmed by the Hon'ble Apex Court and the order passed by the Hon'ble Apex Court reads as follows :-

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“Delay condoned.

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We find no reason to interfere with the order(s) passed by the High Court.

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The special leave petitions filed by the state of Rajasthan are dismissed.

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Of course, the State is entitled to verify the experience and credentials of the candidates.

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Applications for intervention/impleadment are dismissed.”

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2.4 Counsel for the petitioner states that the certificate has been issued by the Principal Medical Officer from the office of D.B. General (District) Hospital, Churu which is undisputedly a Government hospital and the petitioner be given appropriate bonus marks in accordance with the aforesaid judgment.

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2.5 Counsel for the petitioner states that the petitioner would be satisfied if her representation is considered and decided

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(8 of 8)

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[CW-11013/2017]

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by the respondents while keeping into consideration the afore quoted judgment passed in the matter of Manohar Singh (supra).

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Counsel for the respondents is not in a position to refute the applicability of the judgment.

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In view of the above, the present writ petition is disposed of with a direction to the respondents to consider and decide the representation of the petitioner while keeping into consideration the afore quoted judgment passed in the matter of Manohar Singh (supra) and pass a speaking order after due verification within a period of 30 days from today. If any person lower in merit than the petitioner has been given appointment or is being considered, the petitioner shall be given appointment, if otherwise found eligible and meritorious subject to the decision on representation in aforesaid terms.

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(DR.PUSHPENDRA SINGH BHATI)J.

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S.Phophaliya/-

Jitendra Nanwal v. State of Rajasthan and Ors.

Case brief

What is this about?

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Jitendra Nanwal v. State of Rajasthan and Ors.

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