Yogesh Chand Sharma, S/O Shri ... vs State Of Rajasthan
2021 Latest Caselaw 6154 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         D.B. Civil Misc. Stay Application No. 7137/2021
                                       In
              D.B. Civil Writ Petition No. 7456/2021

Yogesh Chand Sharma & Anr.
                                                                  ----Petitioners
                                   Versus
State Of Rajasthan & Others
                                                                ----Respondents

Connected With

D.B. Civil Misc. Stay Application No. 7231/2021 In D.B. Civil Writ Petition No. 7552/2021 Ramavatar Meena

----Petitioner Versus State Of Rajasthan & Anr.

----Respondents

D.B. Civil Misc. Stay Application No. 7240/2021 In

D.B. Civil Writ Petition No. 7565/2021 Javed Khan & Ors.

----Petitioners Versus State Of Rajasthan & Anr.

----Respondent

For Petitioner(s) : Mr. Vigyan Shah, Advocate Mr. Tanveer Ahmad, Advocate For Respondent(s) : Mr. C.L. Saini, Additional Advocate General

HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Order

Date of Order :: 29/10/2021

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These writ petitions have been filed by the petitioners

under Article 226 of the Constitution of India challenging the

Notification dated 12.6.2021 and condition no. 7 of the

advertisement dated 17.6.2021.

Learned counsel for the petitioners submits that

Government of Rajasthan vide Notification dated 27.12.1966

introduced the Rajasthan Ayurvedic, Unani, Homeopathy and

Naturopathy Subordinate Service Rules, 1966 (for short, 'the

Rules of 1966'). Vide Notification dated 9.5.2013, amendment was

made in Rule 19 of the Rules of 1966 to the effect that in case of

appointment to the post of Nurse Compounder Junior Grade, the

merit shall be prepared by the appointing authority on the basis of

marks obtained in such qualifying examination specified in the

Schedule appended to the rules and 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, as the

case may be. He further submits that in the light of the amended

Notification dated 9.5.2013, the State Government issued

advertisement no. 1/2013 for appointment on the post of

Compounder / Nurse Junior Grade and introduced granting bonus

marks to the candidates, who acquired experience of similar posts

at various institutions. He further submits that thereafter vide

Notification dated 12.6.2021, amendment was made in Rule 10 &

19 of the Rules of 1966 and the existing expression "National

Rural Health Mission" was replaced with the expression "National

Health Mission, Dr. Sarvepali Radhakrishnan Rajasthan Ayurveda

University, Jodhpur or any Ayush Project run in the State of

Rajasthan by the Government. Thus, all the candidates who

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acquired their work experience previously from the afore-

mentioned institutions were made eligible for grant of bonus

marks and / or were granted age relaxation. On 17.6.2021, the

respondents issued an advertisement dated 17.6.2021 for the post

of Compounder / Nurse Junior Grade, whereby total 507

vacancies came to be advertised under non-TSP Areas and

condition no. 7 was incorporated therein.

Relevant part of the condition no. 7 of the

advertisement dated 17.6.2021 is as under :-

^^jktLFkku vk;qosZn] ;wukuh] gksE;ksiSfFkd ,oa izkd`frd fpfdRlk v/khuLFk lsok fu;e] 1966 ,oa la'kksf/kr fu;e 2013 o la'kksf/kr fu;e 2021 ds fu;e 19 ds izko/kkuksa ds rgr vH;fFkZ;ksa dks cksul vad ns; gS A 1- bu foKkfir inksa ds fy, jkT; ljdkj eq[;ea=h chih,y] thou j{kk dks"k] jk"Vªh; LokLF; fe'ku] MkW- loZiYyh jk/kkd`".ku jktLFkku vk;qosZn fo'ofo|ky;] tks/kiqj ;k ljdkj }kjk jktLFkku jkT; esa lapkfyr dksbZ vk;q"k ifj;kstuk ds vUrxZr foKkfir inksa ds leku dk;Z ¼Similar Work½ ij dk;Z djus dh vof/k ds vk/kkj ij vuqHko izkIr vH;fFkZ;ksa dks izR;sd iw.kZ o"kZ ds vuqHko ij 10 izfr'kr cksul vad ,oa vf/kdre 30 izfr'kr cksul vad ns; gksaxsA ,d o"kZ ls de vof/k ds fy;s dksbZ cksul vad ns; ugha gksxkA 2- [email protected] twfu;j xzsM inksa dh lh/kh HkrhZ ds fy, ofj;rk lwph mDr fu;eksa ds fu;e 19 ,oa rn~UrxZr tkjh vf/klwpuk Øekad Ik-10¼11½vk;[email protected] ikVZ k fnukad 4-10- 2018 esa of.kZr izko/kkuksa ds rgr~ rS;kj dh tkosxhA ftlds vuqlkj jktLFkku jkT; ljdkj] eq[;ea=h chih,y] thou j{kk dks"k] jk"Vªh;

LokLF; fe'ku] MkW] loZiYyh jk/kkd`".ku jktLFkku vk;qosZn fo'ofo|ky;] tks/kiqj ;k ljdkj }kjk jktLFkku jkT; esa lapkfyr dksbZ vk;q"k ifj;kstuk ds rgr~ dk;kZuqHko dh vof/k ds vk/kkj ij vf/kdre 30 izfr'kr osVst cksul vad fn;s tk;saxsA izR;sd ,d iw.kZ o"kZ ds vuqHko ij 10 izfr'kr cksul vad ,oa vf/kd vof/k ds dk;kZuqHko ds fy, vf/kdre 30 izfr'kr cksul vad fn;s tkosaxs

(4 of 6) [7137 Stay Application 2021 in CW-7456/2021]

¼365 fnol iw.kZ gksus ij ,d gh o"kZ ekuk tkosxk½ ,oa 70 izfr'kr osVst vH;FkhZ }kjk mDr fu;eksa ds layXu vuqlwph esa of.kZr vgZd ijh{kk esa vH;FkhZ }kjk izkIr vadks ds izfr'kr ds vkSlr izfr'kr dks fn;k tkosxkA ^^

He further submits that the petitioners have worked on

similar posts to the advertised posts through placement agency in

Homeopathy Dispensary, University of Rajasthan and / or in Tribal

Health Care Research Programme (THCRP) under Central Council

for Research in Ayurvedic Sciences (CCRAS), which is an

autonomous body of the Ministry of AYUSH (Ayurveda, Yoga &

Naturopathy, Unani, Siddha and Homeopathy), Government of

India, but they have not been considered eligible for bonus marks

on account of wrong interpretation of Rule 2(e) of the Rules of

1966, which deals with the word 'Government'. He further submits

that due to exclusion of the Central Government institutions and /

or an autonomous body, unreasonable discrimination has been

made between the employees.

He further submits that Hon'ble Apex Court in the case

of Dr. (Major) Meeta Sahai Versus State of Bihar & Ors. (Civil

Appeal No. 9482 of 2019) while dealing with the similar

controversy, vide its judgment dated 17.12.2019 allowed the

appeal and construed the relevant rules to include the experience

gained by a doctor in any hospital run by the Bihar Government or

its instrumentalities, as well as any other non-private hospital

(including those run by the Central Government,

Municipalities and Panchayati Raj Institutions; or other public

authorities) within the territory of Bihar.

On the other hand, learned AAG appearing for the State

has opposed the same and submits that a candidate appearing in

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the recruitment process conducted by the Ayurved Department for

filling up the vacant posts of Ayurved Compounder / Nurse Junior

Grade pursuant to the advertisement dated 17.6.2021 is entitled

to get the bonus marks as per his / her work experience in the

aforesaid schemes run by the State Government. He further

submits that the Coordinate Bench of this Court vide its judgment

dated 29.8.2019 passed in D.B. Civil Writ Petition No. 12838/2018

titled Sandeep Kumar Saini & Ors. Versus State of Rajasthan &

Ors. and other connected matters as also vide its judgment dated

30.7.2019 passed in D.B. Special Appeal (Writ) No. 673/2019

titled The State of Rajasthan & Ors. Versus Daulat Ram & others

and other connected matters has already settled the issue

involved in these matters, therefore, the petitioners are not

entitled to any interim relief and their stay applications are liable

to be rejected.

Heard. Considered.

The reliance placed by the learned counsel for

petitioners on the judgment rendered by the Hon'ble Supreme

Court in the case of Dr. (Major) Meeta Sahai (supra) is

misconceived. In Dr. (Major) Meeta Sahai (supra), the question

before the Hon'ble Supreme Court was whether or not the phrase

"Government Hospital" would include within its ambit other non

private hospitals set up in the State of Bihar so as to entitle the

appellant therein for marks based on her experience in an Army

Hospital. Considering the language used in Rule 5 of the Bihar

Health Service (Appointment and Service Conditions) Rules, 2013

more particularly the usage of the word "any", the Hon'ble

Supreme Court held that the term "Govt. Hospital" includes within

its ambit non private hospitals set up in the State. While holding

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so, the Court also took note of the fact that the legislature had

specifically used the word "any" in Rule 5 of the Rules of 2013 to

give it a broader and expansive definition and the condition

stipulated in clause 5(iii) of the advertisement in question was

contrary to Rule 5. Further, the Hon'ble Supreme Court in that

case also noted the absence of a specific definition of "Govt.

Hospital" in Rule 2 and, therefore, applied the Rules of purposive

interpretation. In the case at hand, for being entitled to bouns

marks, experience only in certain institutions / schemes has been

specifically mentioned in Rule 19, as amended by the Notification

dated 12.6.2021. The law with respect to grant of bonus marks

has already been settled by the Coordinate Benches of this Court

in the case of Sandeep Kumar Saini (supra) and Daulat Ram

Sharma (supra), wherein the Coordinate Bench considering the

scope of Rule 19 observed that if grant of bonus marks is a

benefit, the State is also entitled to choose whom to accord the

benefit. Considering the case laws and pleadings of the parties, we

are of the considered opinion that prima-facie Rule 19 and

condition no. 7 of the advertisement dated 17.6.2021 do not

appear to be arbitrary or unconstitutional.

Thus, there being no prima facie case in favour of the

petitioners, we are not inclined to permit the petitioners to

participate in the selection process provisionally. The stay

applications are accordingly dismissed.

We, however, make it clear that the selection would

remain subject to the outcome of the instant writ petitions.

(VINOD KUMAR BHARWANI),J (PRAKASH GUPTA),J

DK/44-46

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