Mukesh Kumar Kumawat vs State Of Rajasthan
2022 Latest Caselaw 10848 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10249/2022

Mukesh Kumar Kumawat S/o Shri Jay Prakash Kumawat, Aged About 32 Years, Village Dhani Nagan, Jobner, Jaipur (Raj.), Presently Posted As Medical Officer At Primary Health Centre Kathoti, Block Jayal, District Nagaur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Its Principal Secretary, Medical Education Department (Group-1St), Government Of Rajasthan, Secretariat, Jaipur.

2. The Deputy Secretary To The Government, Medical Health (Group-2) Department, Secretariat, Jaipur.

3. The Director (Public Health), Department Of Medical And Health, Swasthya Bhawan, Jaipur.

4. The Chief Medical And Health Officer, Banswara.

5. The Chief Medical And Health Officer, Nagaur.

6. Medical Officer Incharge, Primary Health Centre Kathoti, Block Jayal, District Nagaur.

----Respondents

For Petitioner(s) : Mr. Yash Pal Khileree For Respondent(s) : Mr. Kailash Choudhary for Mr. Manish Vyas, AAG

HON'BLE MS. JUSTICE REKHA BORANA

Order

25/08/2022

The present writ petition has been filed with a prayer for

grant of bonus/incentive marks to the petitioner including the

period from 21.05.2020 to 06.01.2021 (231 days) as the period of

service in the rural area.

The case of the petitioner is that he was first appointed on

"Urgent Temporary Basis" as a Medical Officer on 29.04.2020 and

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was posted at Khajuri, District Bhilwara which is a rural area.

Subsequently vide order dated 18.05.2020, he was selected and

appointed after the regular process of selection and was posted at

CHC, Banswara. The said posting was made on temporary basis in

terms of the directions issued by the State Government at the

relevant point of time. It was the specific direction of the State

Government that the new appointees be posted at the places of

requirement in terms of the COVID-19 pandemic situation. In

terms of those directions, the service of the petitioner was

extended at Banswara only from time to time and it was

specifically stated that regular posting would be given as and

when directed by the State Government. Ultimately vide order

dated 08.01.2021, the regular posting was granted to the

petitioner at Delwara, District Banswara and further he was

transferred to PHC Kathoti, District Nagaur vide order dated

30.07.2021.

Learned counsel for the petitioner submitted that the period

of 21.05.2020 to 06.01.2021 during which the petitioner served at

Banswara was totally because of the directions issued by the State

Government and because of the COVID-19 pandemic situation. He

submitted that therefore the said period deserves to be deemed to

be spent in rural area and consequently, the bonus/incentive

marks deserves to be granted to the petitioner. He relied upon the

judgment passed by a Coordinate Bench of this Court in S.B. Civil

Writ Petition No.14283/2021; Dr. Jitendra Kumar Sharma

v. State of Rajasthan & Ors. wherein it was held as under:

"The facts are not in dispute, wherein the petitioner was accorded posting at Primary Health Centre, Ramgarh-Chang, Block-Raipur, District Pali, wehrein joined on 27.03.2020. By order dated

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24.09.2020 passed by the Principal Secretary, services of as many as 30 Medical Officers from various places from District -Jodhpur, Pali, Sirohi and Jalore were handed over to the District Collector, Jodhpur for proper management and treatment of Covid-19.

The petitioner was relieved based on the said order from Primary Health Centre, Ramgarh- Chang, Block-Raipur on 25.09.2020 and was required to report to District Collector Jodhpur, which instruction the petitioner followed and on 28.09.2020, the CM&HO required the petitioner to give his presence at Dr. S.N. Medical College, Jodhpur, where the petitioner is still working.

From none of the orders as produced, it is reflected that the petitioner has worked at Jodhpur on his own request/as per his choice. The petitioner has simply followed the dictates of the Principal Secretary of the Department/Chief Medical & Health Officer.

The very fact that the petitioner has followed the instructions and did not work at Jodhpur as per his choice/on request, is also fortified from submissions made by learned AAG.

Once, it is found that the petitioner, while working at Primary Health Centre, Ramgarh- Chang, Block-Raipur, on account of 'administrative exigency of the State', was make to work at Jodhpur and as stated by learned counsel for the petitioner continued to get his salary from Primary Health Centre, Ramgarh-Chang, Block-Raipur only, it cannot be said that merely on account of following the directions issued to him as part of his duty, the same would work to his prejudice, inasmuch as, the petitioner would be deprived of 10% of the marks obtained by him at NEET PG.

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The submissions made by learned counsel for the petitioner also gains credence that few Medical Officers, who did not follow the directions of the State, have been rewarded with requisite certificate, resulting in their getting the bonus marks and, therefore, person like the petitioner, who has followed the instructions and that also for managing and treating Covid-19 situation as required by the District Collector, cannot be put to a disadvantageous position so as to ruin his career. As per the documents produced, the petitioner has obtained substantial marks in NEET PG and in case he is deprived of the bonus marks on account of his having work at remote or difficult areas, in which category his posting at Primary Health Centre, Ramgarh-Chang, Block-Raipur falls, the same cannot be justified on any count.

The reliance placed by the respondents on the stipulation in the guidelines, in the present circumstances of the case, wherein the petitioner has been sent to work at Jodhpur without his asking for the same, cannot be made to work to his disadvantage."

Per contra, learned counsel for the respondents submitted

that the present matter would not be governed by the ratio as laid

down in Dr. Jitendra Kumar Sharma's case (supra) as the

petitioner never served in rural area after his regular selection. In

Dr. Jitendra Kumar Sharma's case (supra) the petitioner

therein was working in the rural area and only because of the

directions of the State Government he was transferred to the

district area. Herein, the petitioner's first posting itself was at

District Headquarter only and therefore, cannot be granted benefit

of rural area.

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Heard learned counsel for the parties and perused the

material available on record.

It is clear on record that although the petitioner's first

temporary posting was at District Headquarter but the same was

specifically in view of the COVID-19 pandemic situation and in

view of the specific directions issued by the State Government

which laid down that the fresh appointees be posted at the places

where required and till further directions of the State Government,

no regular posting would be granted to them. Therefore, the

petitioner was posted at District Headquarter at Banswara on

temporary basis. It is clear that had the COVID-19 pandemic

situation been not there, the petitioner would have mandatorily

been posted at same rural area and would have gained the

experience as required in the rural area. Just because of the

urgent medical situation prevalent at the relevant point of time, he

was posted at a District Headquarter. It cannot be imagined that

the Doctors and the paramedical staff who served day in and day

out in those challenging circumstances, putting their own lives in

peril, would now, instead of being rewarded, be penalized and that

too by the State Department. The intention of the legislature in

providing for grant of bonus marks is to encourage the doctors to

work in a rural area but it cannot be concluded that the same

would be detrimental to the doctors who served untiringly in the

challenging situation of COVID-19 at District Headquarters and

that too, because of the directions of the State Government. The

reasoning as considered in Dr. Jitendra Kumar Sharma's case

(supra) that it was not the choice of the candidates that they were

appointed at District Headquarters, applies to the present matter

also. Further, the finding therein that the candidates who have

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followed the instructions of the Government for the purpose of

managing and treating COVID-19 situation cannot be put to

disadvantageous position would also definitely apply to the

present matter.

In view of the above observations and in view of the ratio as

laid down in Dr. Jitendra Kumar Sharma's case (supra), the

present writ petition deserves to be and is hereby allowed.

The petitioner would be entitled for counting of the period of

his service from 21.05.2020 to 06.01.2021 for the purposes of

granting bonus/incentive marks to him.

Consequently, the respondents are directed to issue a fresh

certificate to the petitioner for the period from 01.05.2020 to

30.04.2022 by treating the period from 21.05.2020 to 06.01.2021

(spent at CHC Banswara) to be spent at rural area and

consequently, grant the petitioner the bonus marks in accordance

with law.

The requisite be done by the respondents within a period of

one week from the receipt of the copy of the present order.

Stay petition also stands disposed of.

(REKHA BORANA),J

138-Dharmendra/-

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