Giriraj Gujrati vs State Of Rajasthan
2022 Latest Caselaw 15067 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14644/2022

Giriraj Gujrati S/o Late Shri Ramchandra Gujrati, Aged About 38 Years, Shri Charbhuja Nikunj, Gali No. 2, Aadrash Nagar, Kota Road, Bhilwara, District Bhilwara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur.

2. Chief Executive Officer, Zila Parishad, Bhilwara, Rajasthan.

3. District Collector, Bhilwara, Rajasthan.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Sanjay Raj Paliwal
For Respondent(s)        :     Mr. Kunal Upadhyay                 assistant   to
                               Mr. Sunil Beniwal, AAG


                    JUSTICE DINESH MEHTA
                                    Order
22/12/2022

1. The petitioner vied for the post of Lower Division Clerk in

furtherance of the advertisement dated 16.02.2013, issued for

LDC Recruitment, 2013. While submitting the application form, the

petitioner claimed bonus marks for the experience, he had gained

while working as a Computer Operator through placement agency.

2. When the result was declared, the petitioner was not

awarded bonus marks by the respondents, because he had not

worked directly with the State Government and his services were

taken through placement agency.

3. Candidates working through placement agencies including

the petitioner moved the High Court by way of filing writ petitions

(petitioner's writ petition being D.B. C.W.P. No. 11064/2013

decided on 30.10.2013), which bunch of writ petitions led by

(2 of 9) [CW-14644/2022]

Mitendra Singh Rathore & Ors. vs. State of Rajasthan & Ors. (D.B.

C.W.P. No. 1723/2013) were allowed by the Division Bench of this

Court per viam order dated 30.07.2013 inter alia observing that

simply because a person has worked through placement agency,

he cannot be denied bonus marks. The said view of the Division

Bench was affirmed by Hon'ble the Supreme Court per viam order

dated 17.12.2017 in a bunch of Petitions to Special Appeal led by

State of Rajasthan & Anr. vs. Prakash Chandra Sharma & Anr. (SLP

(C) Nos. 33576 - 33584 of 2013).

4. The recruitment in question remained in hibernation for quite

some time and in September, 2022, the same was again set in

motion and candidates were called for documents verification.

5. When the petitioner's name was not mentioned in the list of

such candidates (called for documents verification), he submitted

a representation/objection dated 23.09.2022 inter alia stating that

he is entitled to bonus marks and accordingly, his marks come to

71.67 per cent, which are higher than the cut off in his category

(69.20 per cent) and prayed that his name be included in the

process of recruitment.

6. When the respondents did not call him for documents

verification, the petitioner preferred the present writ petition

seeking directions to the respondents to accord him bonus marks

and to give him appointment.

7. For claiming bonus marks, the petitioner has relied upon the

Experience Certificate dated 04.01.2013 (Annx.3) issued by the

Assistant Director, Social Justice and Empowerment Department,

Bhilwara, which certifies that, the petitioner had worked as

Computer Operator on contract basis through the placement

agency from 01.10.2009 till the date of issuance of certificate.

(3 of 9) [CW-14644/2022]

8. Mr. Paliwal, learned counsel for the petitioner submitted that

the petitioner has worked as Computer Operator through

placement agency and in light of the Division Bench judgment

dated 30.07.2013 rendered in the case of "Mitendra Singh

Rathore & Ors. vs. State of Rajasthan & Ors." (D.B. C.W.P.

No. 1723/2013), the petitioner is entitled for bonus marks and if

the same are given to him, his score falls much above the cut off

marks.

9. Mr. Upadhyay, learned counsel appearing for the respondent-

State submitted that for the same relief, the petitioner had earlier

also filed a writ petition being D.B. Civil Writ Petition No.

11064/2013, which has been allowed in terms of the judgment of

Mitendra Singh Rathore (supra) by a Division Bench of this Court

on 30.10.2013, whereafter, the petitioner's candidature was

considered but since, he did not work under the Panchayati Raj

Department or a scheme run by the Panchayati Raj Department,

bonus marks were not awarded to him.

10. Learned counsel also pointed out that feeling aggrieved of

such action of the State, the petitioner moved another writ

petition in the year 2017 being S.B. Civil Writ Petition No.

5340/2017 and by order dated 12.05.2017, a coordinate Bench of

this Court rejected the petitioner's writ petition inter alia observing

that second writ petition for the same cause was not maintainable.

11. While highlighting that not only the intra court appeal

against the order dated 12.05.2017, even review petition filed by

the petitioner has been rejected by the Division Bench vide its

orders dated 24.01.2018 and 24.01.2020 respectively, learned

counsel for the respondent-State argued that the present writ

petition being barred by res-judicata is not maintainable.

(4 of 9) [CW-14644/2022]

12. On merits, it was stated by Mr. Upadhyay that petitioner's

experience certificate shows that he had worked as Computer

Operator on contract basis in the Department of Social Justice and

Empowerment and hence, is not entitled for bonus marks.

13. In rejoinder, learned counsel for the petitioner argued that

the stand of the respondent-State is arbitrary and untenable. In

this regard, he invited Court's attention towards the Notification

dated 02.10.2010, whereby various activities of Social Justice and

Empowerment Department have been transferred to Panchayati

Raj Department. He argued that the petitioner had worked for

those schemes, which have been transferred to Panchayati Raj

Department and thus, it cannot be said that the petitioner has not

worked under the schemes of the Panchayati Raj Department.

14. Learned counsel invited Court's attention towards office

order dated 28.09.2009 and 31.03.2011 (Annx.25) and submitted

that the Deputy Director of the Social Justice and Empowerment

Department had requisitioned the petitioner's services for the

purpose of carrying out various schemes and in furtherance of

such requisition, the placement agency had deputed the petitioner.

15. With the help of these documents, learned counsel submitted

that the petitioner has worked as Computer Operator on the

schemes of the Panchayati Raj Department and therefore, he is

entitled for bonus marks.

16. In support of his cause, the petitioner relied upon the

judgment dated 31.05.2017 passed by the Jaipur Bench of this

Court in S.B. Civil Writ Petition No. 8707/2017 (Randhir

Singh & Anr. vs. State of Rajasthan & Ors.).

17. Heard learned counsel for the parties.

(5 of 9) [CW-14644/2022]

18. The preliminary objection raised by Mr. Upadhyay that the

instant petition is not maintainable as petitioner's earlier writ

petition being S.B. Civil Writ Petition No. 5340/2017 (for the same

relief) has been rejected, is not correct completely.

19. From perusal of the order dated 12.05.2017 passed by the

Single Bench so also order dated 24.01.2018 passed by the

Division Bench, an inference can be drawn that the petitioner had

approached this Court for the purpose of grant of bonus marks as

the respondents had denied him such benefit for having worked

on the schemes other than those of the Panchayati Raj

Department.

20. Technically, the present petition filed by the petitioner is

barred by res-judicata and/or the principles of Order II Rule 2 of

the Code of Civil Procedure, 1908.

21. But, since the basic issue as to whether the petitioner is

entitled for bonus marks on the basis of experience certificate he

possesses, has not been decided by the Court, instead of non-

suiting the petitioner on technical ground, this Court deems it

proper to decide the merit of the petitioner's contention.

22. So far as the basic issue as to whether a person having

worked through placement agency is entitled for bonus marks is

concerned, the same has been set at rest and even in petitioner's

own case, the same has been held in his favour. But the core

question in the present writ petition is, whether the petitioner has

worked in the Panchayati Raj Department or on the schemes of

Department of Rural Development and Panchayati Raj, which is a

condition precedent as per Rule 273 of the Rajasthan Panchayati

Raj Rules, 1996.

(6 of 9) [CW-14644/2022]

23. A proviso to Rule 273 was introduced by the State of

Rajasthan vide Notification dated 29.01.2013, which reads thus :-

"Provided also that in case of appointment to the post of Lower Division Clerk, merit shall be prepared by the Appointing Authority on the basis of such weightage as may be specified by the State Government for the marks obtained in Senior Secondary or its equivalent examination and such marks as may be specified by the State Government having regard to the length of experience exceeding one year acquired by persons engaged on the post of Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Co-ordinator IEC, Coordinator Training, Coordinator Supervision, other than through placement agency, in MGREGA or in any other scheme of the Department of Rural Development and Panchayati Raj in the State."

24. Interpreting the aforesaid proviso to Rule 273, the Division

Bench has held that the fact as to whether a person had worked

directly under the scheme or through placement agency, hardly

makes any difference.

25. Moving on to the moot question - whether the petitioner, has

worked in any scheme of the Department of Rural Development

and Panchayati Raj in the State? For this purpose, a perusal of

petitioner's experience certificate is imperative. The petitioner's

experience certificate dated 04.01.2013 (Annx.3) reads thus :-

(7 of 9) [CW-14644/2022]

26. A simple look at the above experience certificate shows that

the same has been issued by the Assistant Director, Department of

Social Justice and Empowerment and not by the Panchayati Raj

Department.

27. That apart, the experience certificate does not make any

reference to the scheme being run by the Social Justice and

Empowerment Department or by the Panchayati Raj Department.

The certificate is simply indicative of the fact that the petitioner

has worked as Computer Operator through placement agency in

the Department of Social Justice and Empowerment.

28. The petitioner has placed much reliance upon the

Government orders dated 02.10.2010 & 10.02.2011 to contend

that all the schemes and activities of the Social Justice and

Empowerment Department stood transferred to Panchayati Raj

Department and thus, for all practical purposes, the petitioner has

worked under the schemes of Panchayati Raj Department.

29. A perusal of the Government order dated 02.10.2010 shows

that activities/schemes mentioned in Annexure-1 stood

transferred to Panchayati Raj Department and as per Annexure-2,

various posts have also been transferred to Panchayati Raj

Department. The petitioner has worked as Computer Operator. It

is noteworthy that such post does not find mention in Annexure-2,

and therefore, it cannot be said that Computer Operators too were

given under the control of Panchayati Raj Department.

30. That apart a look at the experience certificate so also

Annexure-25 reveals that requisition for petitioner's services was

sent by the Deputy Director, Social Justice and Empowerment

Department and not by the Panchayati Raj Department. Had the

petitioner's services been transferred to Panchayati Raj

(8 of 9) [CW-14644/2022]

Department as claimed by the petitioner, then, naturally his

services would have been requisitioned by the Panchayati Raj

Department and not by the Social Justice and Empowerment

Department. The certificate too would have been issued by the

Panchayati Raj Department.

31. That apart, a perusal of Letter dated 28.09.2009 and

24.03.2011 written by the Deputy Director, Social Justice &

Empowerment Department (Page 186 & 187 of the paper book)

reveals that petitioner's services were requisitioned to carry out

"all departmental schemes of the district". It is, therefore, clear

that the petitioner's services were requisitioned and taken for

carrying out the schemes of the Social Justice & Empowerment

Department and not of Panchayati Raj Department.

32. The petitioner's reliance upon the judgment dated

31.05.2017 rendered in the case of Randhir Singh (supra) is ill-

founded and misplaced. The said judgment is clearly

distinguishable on facts - the petitioner therein (Randhir Singh)

was working as Lower Division Clerk in Chief Minister BPL Life

Saving Fund Scheme under the National Rural Health Mission and

this Court clearly recorded a finding that said National Rural

Health Mission has been transferred to Panchayati Raj Department

on 02.10.2010, whereas, the petitioner has neither worked in any

particular scheme of the department, which has been transferred

to Panchayati Raj Department nor has he been able to establish

the same.

33. The experience certificate and other documents relied upon

by the petitioner do not refer to any particular scheme that has

been transferred to Panchayati Raj Department.

(9 of 9) [CW-14644/2022]

34. In view of the discussion foregoing, this Court is of the

considered view that petitioner has not worked under MGNREGA

or any other scheme of Panchayati Raj Department, and therefore,

he is not entitled for bonus marks for the experience he has

gained.

35. The writ petition, therefore, fails.

36. The stay application also stands rejected.

(DINESH MEHTA),J 34-Inder/-

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