Mudita Solanki vs State Of Rajasthan
2021 Latest Caselaw 16143 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 550/2021

1. Mudita Solanki D/o Shri Ganpat Solanki, Aged About 29 Years, R/o 348, Indira Colony, District Nagaur, Rajasthan.

2. Indu Yadav D/o Shri Ravinder Yadav, Aged About 33 Years, R/o H. No. 112, Ward No. 07, Village Maheshra, Tehsil Tizara, District Alwar, Rajasthan.

3. Renu Kumari D/o Shri Ram Sukh Kaler, Aged About 30 Years, R/o D-19, Virat Nagar, Udasar Road, District Bikaner, Rajasthan.

4. Lovely Rathore D/o Shri Mahaveer Prasad Rathore, Aged About 27 Years, R/o House No. 1-J-13, Mahaveer Nagar Iii, District Kota, Rajasthan.

5. Priyanka Seoran D/o Shri Tarachand Seoran, Aged About 31 Years, R/o Plot No. 177-178, Riico, 2 Phase, District Jhunjhunu, Rajasthan.

6. Gayatri Kalyanwat D/o Shri Narendra Singh, Aged About 29 Years, R/o E-49, Nandpuri, Hawa Road, Opposite Shani Temple, Sodala, Shyam Nagar, Jaipur, Rajasthan.

----Appellants Versus

1. State Of Rajasthan, Through Secretary, Ayurved And Indian Medicine Department, Jaipur, Rajasthan.

2. The Director, Department Of Ayurved, Ajmer, Rajasthan.

3. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Through Its Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

4. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur, Rajasthan.

                                                                 ----Respondents


For Appellant(s)          :     Mr. Prithvi Raj Singh.
                                Mr. Bhuvneshwar Singh Rathore.
For Respondent(s)         :     Mr.   Anil Gaur, AAG.
                                Mr.   Shreyansh Bhandawat.
                                Mr.   Sourabh Suthar on behalf of
                                Mr.   Sandeep Bhandawat.




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HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SANDEEP MEHTA

Order

25/10/2021

This appeal is filed by the original petitioners to challenge the

judgment of the learned Single Judge dated 15.09.2021 in S.B.

Civil Writ Petition No. 11974/2021.

Briefly stated the facts are that the appellants-petitioners

had applied for the post of Ayurveda Medical Officer, for which the

Government first issued an advertisement dated 22 December,

2020. It appears that there was re-assessment of the vacancies,

which required the Government to issue a further advertisement

dated 21.06.2021 in continuation of the previous one. The

petitioners had applied in response to the first advertisement for

which the last date for applying was 30.01.2021. Though the

precise dates of applications filed by the petitioners are not on

record, it can be an accepted position that such applications were

made between 30th December, 2020 and 30th January, 2021.

As per the Government policy and the advertisement, the in-

house candidates would be given weightage of what is referred to

as "bonus marks" for up to the maximum of 3 years of service. All

the petitioners were already working as ad-hoc Ayurveda Medical

Officers in the Government Dispensaries and were thus entitled to

bonus marks. It may be noted that the Government of Rajasthan

vide notification dated 13.05.2013 had introduced a provision,

under which the appointing authority, while preparing the select

list on the basis of marks obtained in the qualifying examination,

would grant bonus marks on the basis of length of experience of

similar work under the Government, Chief Minister BPL Jeevan

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Raksha Kosh and National Rural Health Mission. The advertisement

dated 22nd December, 2020 itself, while highlighting this aspect of

granting bonus marks for the past experience, also provided that

such bonus marks would carry maximum 30 percent weightage

and for each completed year of experience, 10 percent marks

would be awarded. The advertisement provided that the candidate

must upload the experience certificate along with online

application for the post. In case such certificate is not uploaded,

the experience of the candidate shall not be taken into

consideration for grant of bonus marks. The note appended to the

advertisement prescribed that experience shall be counted as on

one day before opening of the online application form.

The case of the petitioners is that the experience of the past

service should be counted till the date when the document

verification was carried out by the appointing authority and the

action of the respondents in limiting the petitioners' experience till

the date of filing of the applications online was illegal. With this

grievance, the petitioners had approached the learned Single

Judge. The learned Single Judge relied on the decision of the Co-

ordinate Bench in the case of Anil Bishnoi & Ors. Vs. State of

Rajasthan & Ors. (SB Civil Writ Petition NO. 796/2016

decided on 05.10.2017) and dismissed the petition, whereupon,

this appeal has been filed.

Learned counsel for the appellants(original petitioners)

contended that the decision in case of Anil Bishnoi(supra) was not

applicable in the facts of the present case. In any case, it was the

judgment of the Single Bench and this Court may re-examine the

Rule position in the present appeal. Counsel further submitted that

the Government of Rajasthan itself had amended the recruitment

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Rules vide Rajasthan Various Service (Amendment) Rules 1999,

by virtue of which, the following proviso has been added:-

"Provided that the person who has appeared or is appearing in the final year examination of the course which is the requisite educational qualification for the post as mentioned in the rules or schedule for direct recruitment, shall be eligible to apply for the post but he/she shall have to submit proof of having acquired the requisite educational qualification to the appropriate selection agency:-

(i) before appearing in the main examination, where selection is made through two stages of written examination and interview;

(ii) before appearing in interview where selection is made through written examination and interview;

(iii) before appearing in the written examination or interview where selection is made through only written examination or only interview, as the case may be."

According to the learned counsel for the appellants-

petitioners, as per this proviso, necessary educational

qualifications of a candidate would be tested as on the date for

appearing in the relevant written examination or oral interviews,

as provided in the said proviso. If that being the position,

according to the learned counsel, the experience should also be

counted as on such date. In the present case, the counsel would

argue that the experience of the petitioners should be seen as on

the date on which the exercise of document verification was

carried out by the appointing authority, which happened between

1st and 8th September, 2021. If this is done, the petitioners would

get the benefit of weightage of one more year of completed

service resulting into corresponding greater weightage of bonus

marks.

On the other hand, the case of the respondents is that the

advertisement clearly prescribes that the experience certificate

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should be uploaded along with the application form. This cut-off

date cannot be stretched to the date of document verification

which would lead to great amount of uncertainty and in any case

was contrary to what is prescribed in the advertisement.

Learned counsel for the petitioners may be correct in

pointing out that by virtue of the Rajasthan Various Service

(Amendment) Rules, 1999, the last date for acquiring educational

qualifications prescribed for different posts may be the date for

appearing in the written examination or oral interviews as

prescribed in the said proviso. However, in the present case,

admittedly, neither written examination nor oral interviews were

to be conducted. The selection had to be made on the basis of the

marks scored by the candidates in the qualifying examination. This

would require neither conducting the written examination nor

holding oral interviews. It is doubtful if the proviso added by virtue

of the said amendment Rules would have any applicability.

The relevant date counting experience would therefore have

to be as prescribed in the advertisement. In this context, we may

recall that the advertisement clearly provided that the candidate

must upload the experience certificate at the time of filing of the

online application and if no such certificate is uploaded, the

experience of the candidate shall not be taken into account for the

purpose of grant of bonus marks. This condition couched in

positive as well as negative language, leaves no manner of doubt

that the experience of the candidate for the purpose of awarding

bonus marks has to be reckoned as provided in the advertisement

which was the day before opening the online applications. Under

the circumstances, we do not find that the cut-off date for such

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consideration can be extended to the date on which the document

verification took place.

In the result, the appeal is dismissed.

                                   (SANDEEP MEHTA),J                                        (AKIL KURESHI),CJ


                                   43-jayesh/-









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