Gautam Chand vs State Rural Develp And Panchayati ...
2022 Latest Caselaw 4475 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                   S.B. Civil Writ Petition No. 14450/2017

Gautam Chand S/o Shri Ganpat Lal, Resident Of Shri Guru Kripa
Sadan, Mukam Post Edwa, Tehsil Degana, District Nagaur Raj.
                                                                                  ----Petitioner
                                             Versus
1.       State Of Rajasthan Through Principal Secretary, Rural
         Development              And       Panchayati           Raj     Department                Gov,
         Government Secretariat, Jaipur.
2.       Zila Parishad Nagaur Through Its Chief Executive Officer.
3.       Zila Parishad Pali Through Its Chief Executive Officer.
4.       District       Collector         And       District       Program          Coordinator
         Nagaur.
5.       District Collector And District Program Coordinator Pali.
6.       Chief Medical And Health Officer, Nagaur, Distt. Nagaur.
7.       Block Chief Medical Officer, Degana, District Nagaur.
                                                                             ----Respondents

For Petitioner(s) : Mr. Tanveer Ahamad For Respondent(s) : Ms. Sheetal Mirdha, AAG with Mr. Karan Mehla

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

05/07/2022

1. This writ petition has been filed by the petitioner with the

following prayers;

"It is, therefore humbly prayed that Your Lordship may graciously be pleased to accept and allow this writ petition and by an appropriate writ, order or direction:-

1. The impugned action / omission on the part of the respondents in not extending the benefit of experience acquired by the petitioner under NRHM despite of handling over the function of the same to the Panchayati Raj

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

(2 of 9) [CW-14450/2017]

Department by way of order dated 2 October 2010, may be declared arbitrary and illegal and accordingly be ordered to be set right by way of issuing directions to the respondents for considering the experience of the petitioner or by way of issuing experience certificate in requisite format and countersigned by C.E.O. to the humble petitioner for the purpose Of award of bonus marks to the petitioner for LDC recruitment in pursuant to the advertisement of LDC 2013 in the interest of justice.

2. The impugned order dated 14.6.2017 may kindly be declared arbitrary and discriminatory and accordingly be quashed and set aside.

3. Any other appropriate order, which may be found just and proper in the facts and circumstances of the case, be passed in favour of the petitioner.

4. Cost of the writ petition may also be awarded in favour of the petitioner."

2. Brief facts of the case are that in pursuance to the

advertisement issued by the respondent(s) in the year 2013, the

petitioner applied for the post of L.D.C.

3. The grievance of the petitioner is that respondent(s) have

not provided the bonus marks to the petitioner as mentioned in

Clause-11 of the advertisement. Clause-11 which provides for

requirement of educational qualifications and bonus marks is

reproduced as under;

(अ) शैक्षणषणिक य योगययत्यता एएव एवं अनग्रह अ एवंक - आएवेदक क्यता चयन सीननयर सेकेडररी पररीक्ष्यता मे प्यतापयत्यता एवंक पनयतशयत यतत तथ्यता पएव त ा पूर्व मे क्यताया पूर्वरयत क्यतायरत कारमा पूर्वक यो क यो प्यतापयत ह योने एव्यतााले अनग्रह अ एवंक यो के य योग के आे आध्यतार पर ककय्यता ज्यताएवेग्यता। र्यताजसत तथ्यतान प एवंच्यताययती र्यताज ननयम 1996 के स एवंस योधे आधयत प्यताएवे आध्यतानानों के अनस्यतार मनरेग्यता अत तथएव्यता ग्र्यतामीषणि वएवक्यतास और प एवंच्यताययती र्यताज वएवक्यतास की ककसी य योजन्यता मे क्यताया पूर्वक्रम अधे आधक्यताररी/ सह्यतायक क्यताया पूर्वक्रम अधे आधक्यताररी, एवररष्ठ यतकनीक सह्यतायक ,

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

(3 of 9) [CW-14450/2017]

प योग्र्यतामर , सह्यतायक ालेखा्यताधे आधक्यताररी, कननष्ठ यतकीनीकी सह्यतायक , कननष्ठ अयरत कारभिय एवंयत्यता , ग्र्यताम र योज़ग्यतार सह्यतायक, डेट्यता ए एवंटरी ऑपरेटर, ालेखा्यता सह्यतायक , कननष्ठ यरत कारालवपक , समनएवयक आई.इ.सी., समनएवयक पयरत कारशक्षषणि, क योऑरडा पूर्वनेटर सपरवएवशन यतत तथ्यता क एवंपयट त र ऑपरेटर वएवत तथ मशीन (ननय योजन अयरत कारभिकरषणि के म्यताधयम से ालगे हए के यरत कारसएव्यताय ) पद अत तथएव्यता समननएवयत जाल ग्रहषणि पप्रब एवंे आधन क्यताया पूर्वक्रम/ र्यताषष्ठ्रीय जाल ग्रहषणि वएवक्यतास क्यताया पूर्वक्रम /डी.डी .पी/ डी .पी .ए.पी. के अ एवंयतगा पूर्वयत जाल ग्रहषणि वएवक्यतास दाल के अयरत कारभिय्यता एवंत्रिकी , कषव पशप्यताालन य्यता सम्यताज वएवज्यतानी सदसय अत तथएव्यता ननमा पूर्वाल भि्यतारयत अयरत कारभिय्यतान ( सम्पतषणिा पूर्व सएवसवस्छयत्यता क्यताया पूर्वक्रम ) के अ एवंयतगा पूर्वयत नजाल्यता समनएवयक सएवचवस्छयत्यता / SWSHE, बाललॉक क योऑरडा पूर्वनेटर / ालेखा्यताक्यतार य्यता क एवंपयट त र /एम म. आई .

एस. अयरत कारससटे ट के पद पर अनग्रह अ एवंक पद्यतान ककये ज्यता सकेगे। उपर योकयत एवणषणिा पूर्वयत ककसी भिी क्यतायरत कारमा पूर्वक क यो एक एव ा पूर्व से कम अएवे आधी के अनभिएव पर ककसी पक्यतार क्यता अनग्रह अ एवंक अनज्यतायत नहरी एवं ह योग्यता। ननयम 273 र्यताजसत तथ्यतान र्यताज प एवंच्यताययती ननयम 1996 के प्यताएवे आध्यतानानों के अनस्यतार अभयत तथर्थी दएव्यतार्यता सीननयर सेकेडररी पररीक्ष्यता मे प्यतापयत्यता एवंक यो क यो 70 प्रततिशति ववेटवेज ददियया जयाववेगया। यतदनस्यतार प्यतापयत पनयतशयत (दशमालएव के यतीन अ एवंक यो सहिहयत ) मे ननम्न्यतानस्यतार अनग्रह अ एवंक ज योजोड़े ज्यताकर अयरत कारभियधत तथा पूर्वयानों के मेररट नने आध्यताा पूर्वररयत की ज्यताएवेग।

            क्र. स एवं                अएवधे आध                                                                        अनग्रह
            .                                                                                                    अ एवंक


                             अनभिएव ह योने पर


                             अनभिएव ह योने पर


                             (अधे आधकयतम )

4. Counsel for the petitioner submits that the action of the

respondent(s) in not awarding the bonus marks to the petitioner is

arbitrary and without application of mind as the petitioner is

having three years' experience of working on the post of ASHA

Supervisor, PHC as per the experience certificate issued by the

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

(4 of 9) [CW-14450/2017]

Chief Medical Officer, Division Degana, District Nagaur dated

02.06.2017. Counsel further submits that the respondent(s) have

initially issued the select list in the year 2013 itself, and thereafter

in the year 2017, the petitioner being aggrieved by the order

dated 14.06.2017 (Annexure-7) by which the respondent(s) have

issued guidelines to the appointing authorities that only the posts

which are included in the advertisement shall be considered for

giving the bonus marks has filed the present writ petition.

5. In support of his contentions, counsel for the petitioner relied

upon the judgment passed by the Division Bench of this Court in

the matter of Manohar Lal Jaga Vs. State of Rajasthan & Ors.

(D.B. Civil Writ Petition No. 5861/2013) decided on

18.04.2014 where at Page No. 10-13 it has been held as under;

"A comparison of the texts of these proviso, would bring out the following salient features:-

(i) For the words "more than one year", following the word "experience" in the earlier proviso, the words "exceeding one year acquired by persons engaged on the post", were substituted.

(ii) The words "any post under any" after the word "or" following the word "MGNREGA", were substituted by the words "in any other". Conspicuously, the word "post" appearing in the earlier proviso was deleted.

To reiterate, in clause-19 of the Guidelines dated 12.02.2013, following the amendment on 29.01.2013 pertaining to direct recruitment to the post of Lower Division Clerk, as per the Rules, the provision for grant of bonus marks on the basis of experience, was contemplated for employees engaged on contract basis in the State, discharging duties in the projects under MGNREGA, or integrated Water Shed Management Programme, or National Water Shed Development Programme, or Nirmal Bharat Abhiyan. Noticeably, no distinction or classification was made amongst the employees or incumbents qua these projects/programmes in the matter of grant of bonus marks based on service

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

(5 of 9) [CW-14450/2017]

experience. In clause-11 of the advertisement, stipulating the criteria for selection, apart from prescribing the academic qualifications required, it was mentioned that aside the incumbents in the posts, referred to in the amended proviso aforementioned, members of the Water Shed Development Team in the disciplines of engineering, agriculture, animal husbandry or social science under the integrated Water Shed Management Programme/ National Water Shed Development Programme/D.D.P./D.P.A.P. as well as those serving as District Coordinator Cleanliness/SWSHE, Block Coordinator/Accountant or Computer/ M.I.S. Assistant under the Nirmal Bharat Abhiyan, would be entitled to bonus marks. It was clarified however that if any of these incumbents was in possession of experience less than one year, he would not be entitled to such marks. In the Explanation appearing at the foot of the clause, it was clarified that such bonus marks would be granted to the incumbents engaged on contract basis in the State and serving under MGNREGA or integrated Water Shed Management Programme/ National Water Shed Development Programme/D.D.P./D.P.A.P. or Nirmal Bharat Abhiyan (Complete Cleanliness Mission). Here again, no distinction was made amongst the incumbents serving or discharging their duties under these projects/programmes. It cannot be gainsaid that correct interpretation of clause-11 of the advertisement, so far as it relates to grant of bonus marks, has to be on a combined reading of the parent context thereof and the explanation provided.

It is too trite to mention that the stipulations in the guidelines and the advertisement, having been consciously designed by the official respondents, the same, by no means, could have been contemplated in departure from or any repugnance to the amended proviso to Rule 273 of the Rules, effected by the Rajasthan Panchayati Raj(Amendment) Rules, 2013. It is, thus, apparent that the State-respondents interpreted the impugned proviso as not exclusionary of any post beyond those named therein, qua any other scheme of the department of Rural Development and Panchayati Raj for grant of bonus marks, if the incumbent thereof was otherwise eligible

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

(6 of 9) [CW-14450/2017]

therefor. A plain reading of the impugned proviso, in our view, also incontestably covey the same. In our comprehension, the words "engaged on the post of" do not limit entitlement of bonus marks only to the holders of the posts, named therein, in any scheme other than MGNREGA of the Department of Rural Development and Panchayati Raj of the State.

The above referred clauses of the guidelines and the advertisement also, in our estimate, unerringly endorse this exposition of ours. The challenge to the validity of the impugned proviso to Rule 273 of the Rules, in our discernment is, thus, mislaid. To reiterate, this proviso does not exclude as such, the incumbents of any post in any scheme other than MGNREGA of the Department of Rural Development and Panchayati Raj for grant of bonus marks and does not limit its application therefor, only to the posts specifically named therein. Axiomatically therefore, if the petitioners satisfy the description of employment on such post(s) in any other scheme of the department, aforenamed, they would be entitled for grant of bonus marks, as ordained by the above referred proviso to Rule 273 of the Rules, if otherwise eligible."

6. Counsel further relied on the judgment passed by the Co-

ordinate Bench of this Court in the matter of Ramniwas & Ors.

Vs. The State of Rajasthan & Anr. (S.B. Civil Writ Petition

No. 10519/2017) decided on 08.02.2018.

7. Counsel further relied on the judgment passed by the Co-

ordinate Bench of this Court in the matter of Neeraj Prasad

Sharma Vs. State of Rajasthan & Ors. (S.B. Civil Writ

Petition No. 6082/2017) decided on 04.05.2017.

8. Counsel further submits that in various judgments passed by

this Court, the candidates similar to the petitioner have been

considered for awarding of bonus marks. Counsel further submits

that the respondent(s) have given appointment to the persons

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

(7 of 9) [CW-14450/2017]

considering the experience certificate of the persons who are

working on the post of ASHA Supervisor.

9. Learned AAG appearing on behalf of the respondent(s)

opposed the writ petition and submitted that recruitment to the

post of L.D.C is governed by the Rajasthan Panchayati Raj Rules,

1996 amended vide notification dated 29.01.2013 wherein Rule-

273 was amended which is reproduced as under;

"2. Amendment of rule 273- The existing second proviso to rule 273 of the Rajasthan Panchayatui Raj Rules, 1996, shall be substituted by the following, namely-

" 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 MGNREGA or in any other scheme of the Department of Rural Development and panchayati Raj in the State."

10. Learned AAG submits that the case of the candidates for

awarding the bonus marks has been considered strictly in

accordance with the Rules of 1996 as well as the posts mentioned

in the advertisement issued in the year 2013 and circular dated

26.05.2017 (Annexure-6). Counsel further submits that the

validity of amended rule vide notification dated 29.01.2013 was

considered and upheld by the Division Bench of this Court in the

matter of Manohar Lal Jaga (supra). Counsel further submits that

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

(8 of 9) [CW-14450/2017]

in none of the judgments mentioned by the petitioner experience

on the post of ASHA Supervisor has been considered for awarding

of bonus marks. Counsel further submits that the respondent(s)

have terminated services of the persons who were not eligible for

awarding of bonus marks as per Rules of 1996 and the

advertisement. Counsel further submits that there is no concept of

negative equality in the Constitution and prayed for dismissal of

the writ petition. Learned AAG further submits that the petitioner

is having the experience of work on the post of ASHA Supervisor

in the Medical & Health Department and the order of appointment

has also been issued by the Medical and Health Department.

12. A bare perusal of the amendment in the Rules of 1996 vide

notification dated 29.01.2013 clearly shows that awarding of

bonus marks to various posts has been mentioned in the

notification as well as in the advertisement issued in the year

2013 for the post of L.D.C. wherein the post of ASHA Supervisor

has not been mentioned anywhere neither in the Rules nor in the

advertisement.

13. In the judgment passed by the Division Bench, the validity of

the notification dated 29.01.2013 has already been upheld and in

none of the judgments cited by the petitioner the experience

certificate for the post of ASHA Supervisor has been considered

for giving them appointment. The persons considered were either

working on the post mentioned in the advertisement or in other

schemes or they were directly appointed by the Gram Panchayats

whereas the present matter relates to working on the post of

ASHA Supervisor who was appointed by the Medical and Health

Department.

14. Heard counsel for the parties and perused the record.

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

(9 of 9) [CW-14450/2017]

15. This writ petition filed by the petitioner deserves to be

dismissed for the reasons; firstly, admittedly the petitioner has not

worked on the post which has been mentioned in the

advertisement for awarding the bonus marks based on the

experience certificate; secondly, in none of the judgments cited by

the petitioner before this Court, the post of ASHA Supervisor was

considered by the Courts for awarding the bonus marks; thirdly,

the petitioner cannot claim negative equality as there is no scope

of negative equality under Article 14 of the Constitution of India,

fourthly, Learned AAG has informed that the appointment wrongly

given to the persons considering the experience on the post of

ASHA Supervisor have already been cancelled; therefore, in the

facts and circumstances, I am not inclined to exercise the

jurisdiction of this Court under Article 226 of the Constitution of

India.

16. In that view of the matter, the present writ petition stands

dismissed.

(INDERJEET SINGH),J

Chetna/46

(D.B. SAW/589/2020 has been filed in this matter. Please refer the same for further orders)

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