Manish Kumar Yadav And Ors vs State Of Raj And Ors
2022 Latest Caselaw 3699 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 13040/2018

1.    Manish Kumar Yadav S/o Shri Ram Chandra Yadav,
      Resident Of Holi Ka Teeba, Alwar Road Bansur, District
      Alwar Raj.
2.    Vinod Swami S/o Shri Ramniwas Swami, Resident Of
      Village Buteri, Post Buteri, Tehsil Bansur, District Alwar
      Raj.
3.    Babulal Saini S/o Shri Lal Chand Saini, Resident Of Vpo
      Patan, Tehsil Neem Ka Thana, Sikar Raj.
4.    Mrs. Mamta Yadav W/o Shri Subhash Chand Mehta,
      Resident Of V.p. Dhani Bhom Singh Wali, Post Mohanpura,
      Tehsil Kotputli, Jaipur Raj.
5.    Sumer Singh S/o Shri Rameshwar, Resident Of Naya
      Kuwa, Village Mothuka, Post Dolatpura, Tehsil Neem Ka
      Thana, District Sikar Raj.
6.    Kamlesh Yadav S/o Shri Ram Sharan Yadav, Dhani
      Bhakriya, Vpo Kujota, Tehsil Kotputli, District Jaipur Raj.
7.    Anita Yadav D/o Shri Chetram Yadav, Resident Of Village
      Kalyanpura, Post Kankra, Tehsil Behror, District Alwar Raj.
8.    Ram Kishore Kasana S/o Shri Jagmal Singh Kasana,
      Resident Of Dhani Saimala, Village Amai, Tehsil Kotputli,
      District Jaipur Raj.
9.    Bablu Gurjar S/o Shri Madan Lal Gurjar, Resident Of
      Sardarpura,     Post     Nangal       Panditpura,        Tehsil   Kotputli,
      District Jaipur Raj.
10.   Manju Gurjar W/o Shri Bablu Gurjar, Resident Of Village
      Sardarpura,     Post     Nangal       Panditpura,        Tehsil   Kotputli,
      District Jaipur Raj.
11.   Dilip Singh Sorela S/o Shri Babu Lal Sorela, Resident Of
      Vpo Jodhpura, Mohanpura, Tehsil Kotputli, Jaipur Raj.
12.   Sunil   Mahalawat        D/o     Shri     Ram       Prasad   Mahalawat,
      Resident Of 50, Bhartendu Nagar, Khatipura, Jaipur Raj.
13.   Khamosh Bai Jat D/o Shri Umrav Lal Jat, Resident Of Veer
      Tejaji Nagar Dhani Chhani, Village Bad Nagar, Tehsil
      Kotputli District Jaipur Raj.
14.   Bhagwati Bunkar D/o Shri Ganesh Narayan Bunkar,
      Resident Of Vpo Dhand, Tehsil Amer, District Jaipur Raj.

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                                                                       ----Petitioners
                                      Versus
1.     State Of Rajasthan Through Principal Secretary, Medical
       And Health Services, Govt. Secretariat, Jaipur
2.     The Director, Medical And Health Service, Swasthya
       Bhawan,      Swasthya          Bhawan,         Tilak        Marg,    C-Scheme,
       Jaipur.
3.     The Addl. Director Admn., Medical And Health Services,
       Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur
4.     The Joint Director, Zone-Jaipur Swasthya Bhawan, Tilak
       Marg, C-Scheme, Jaipur Raj.
5.     The Chief Medical And Health Officer, Jaipur-1St, Jaipur
       Raj.
6.     The Chief Medical And Health Officer, Jaipur-2Nd, Jaipur
       Raj.
7.     The     Principal      Medical       Officer,      Govt.       B.d.m.hospital,
       Kotputli, District Jaipur Raj.
                                                                     ----Respondents

For Petitioner(s) : Mr. Tanveer Ahamad, Adv. For Respondent(s) : Dr. V.B. Sharma, AAG Mr. Vivek Tyagi, Dy. G.C.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

11/05/2022

Counsel for the petitioners submitted that the issue involved

in this writ petition has already been considered and decided by

the Co-ordinate Bench of this court in the matter of Sunita Vs.

The State of Rajasthan and others (S.B. Civil Writ Petition

No.838/2020 and other connected petitions) wherein on

19.02.2020 following order has been passed:-

"1. The present bunch of writ petitions comprises of the petitioners who have applied for the posts of GNM, ANM, Female Health Worker, Pharmacist, Lab Assistant and

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Radiographer under the Rajasthan Medical and Health Subordinate Service Rules, 1965 pursuant to advertisement issued by the respondent-department with regard to the recruitment on the aforesaid posts on different dates.

2. All the petitioners have claimed bonus marks on the basis of the experience certificates issued to them for working on the post similar to those for which they have applied namely; Nurse GradeII, Female Health Worker, ANM, Lab Assistant, Pharmacist, Radiographer and Assistant Radiographer.

3. Certificates have been issued to the petitioners by the concerned institutions or hospitals or authorities or placement agencies who have asked them to work in the establishments which are on Public Private Partnership Mode (PPP Mode) as well as on the basis of the MOUs entered with the State Government for providing health care or ancillary services to the public in the State of Rajasthan.

4. The grievance of the petitioners are that these certificates have not been considered for grant of bonus marks as provided under Rule 19 of the Rules of 1965 as the State Government does not recognize the experience gained in establishments under PPP Mode or under MOUs.

5. The issue is no more res-integra and stands decided by the coordinate Bench of this Court at Principal seat Jodhpur in bunch of writ petitions with leading case Savita Solanki Vs. State of Raj. & ors. (SB Civil Writ Petition No.10030/2018), decided on 10/08/2018 whereby, while relying on the judgment passed by the Division Bench of this Court at Principal Seat Jodhpur in State of Raj. & Anr. Vs. Manohar Singh & Ors. [D.B. Civil Special Appeal (Writ) No.281/2013] and connected appeals, decided on 27/01/2014, it was held as under:-

"43. The judgment of the Manohar Singh (supra) is directly applicable in the present facts, as the main argument of the State of Rajasthan is that under the Public Private Partnership Mode, the petitioners are rendering their services through the private agencies in the Government PHCs and Sub Centres. Thus, the same argument, which was rendered in Manohar Singh (supra) by the State before this Hon'ble Court, while trying to make a classification between the

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persons directly appointed by the State and the persons appointed through private agency, was turned down by this Hon'ble Court. The Hon'ble Apex Court, while observing that such classification, reflecting the fact that there was similarity between the nature of work and direct control of the State was established, was not reasonable, and hence, bonus marks under Rule 19 of the Rules of 1965 were directed to be given to such candidate(s).

44. This Court also takes note of the language of the aforementioned MoU, which has already been reproduced hereinabove, and finds that Manohar Singh's case clearly reflects the absolute dominance and control of the Government of Rajasthan in running its public health centers and sub/centers, whereby the schemes of the Government are sought to be implemented with the help of certain private agencies. It is not in dispute that the aforesaid MoU prescribes for complete control by the Government of Rajasthan, who would continue to own and have absolute rights over title and interest and ownership of the Centre in question.

45. This Court has also seen that the complete financial control also lies with the State along with the infrastructural control, which goes to the extent of giving the details of the staff and infrastructure. This Court has also seen that the staff is supposed to provide antenatal care. The relevant portion of the MoU in this regard is quoted below for ready reference:-

"Antenatal care (Urine and blood testing, TT immunization, IFA supplements, nutrition counseling, early registration, weighing, blood pressure, position of the baby, check against danger signs and identification of high-risk pregnancies, Referral for Institutional deliveries) Postnatal care, Referral for institutional deliveries, Child Health Services including Immunization, Services under national programmes like DOTS, NVBDCP etc, Family planning including IUD, NSV & referral for terminal methods Lab services Treatment of minor ailments including RTI/STI depot holder services for contraceptive and ORS, Promoters / education and help ANMs for outreach services through social community/link voulnteers. Referrals to be undertaken at the nearest public sector health facility."

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46. This Court has also seen that the complete financial control of the Centres lies with the State of Rajasthan including the complete funding thereof, and the norms and rules laid down by the Government of Rajasthan are also applicable, and the Health Programmes have to be implemented through such Centres.

52. In light of the aforesaid observations, the present writ petitions are allowed and the respondents are directed to issue appropriate experience certificate to the petitioners and also to grant appropriate bonus marks to the petitioners, while treating them to be entitled for such bonus marks under Rule 19 of the Rules of 1965. However, it is made clear that this judgment shall entitle only those candidates for grant of bonus marks, who have already filled their forms of ANM off-line or on-line within the stipulated period i.e. before the last date of the advertisement dated 18.06.2018. It is further made clear that thereafter, appropriate appointment on the post in question shall be given to the petitioners, if they are otherwise eligible and falling in merit. However, in the spirit of the law laid down by the Hon'ble Apex Court in the matter of Manohar Singh (supra), this Court makes it clear that the State Government shall be entitled to verify the experience and credentials of the candidates, before granting them the bonus marks. The competent authority, on finding anything illegal, would be entitled to pass appropriate speaking order for disqualifying the petitioner(s)/candidate(s) for bonus marks, only if the experience, upon verification, is not found to be correct. However, no petitioner shall be disqualified for the bonus marks on account of the experience certificate having not been issued until now, and the same shall be appropriately considered by the respondents, as per the directions given hereinabove."

6. In view of the judgement as rendered by the coordinate Bench of this Court at Principal Seat, Jodhpur, the petitioners in the present bunch of writ petitions are held entitled to be given the benefit of bonus marks on the basis of their experience certificates for the respective posts. The petitioners shall submit a copy of this judgement alongwith an application before the respondents mentioning the posts for which they have applied and the respondents shall consider

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the experience certificate and if the same is found to be in order, shall accordingly allot marks to the petitioners by adding bonus marks. The inclusion of the petitioners in the select list on the basis of addition of the aforesaid bonus marks would, however, be always subject to scrutiny of their experience certificate and even after appointment, if later on, it is found that the experience certificate submitted by them is in any manner having any mistake or is forged, the concerned incumbent would be given a show cause notice and thereafter his services can be dispensed with after examining reply.

7. All these writ petitions are allowed in the aforesaid terms."

Counsels for the respondents have not disputed the

submissions made by counsel for the petitioners.

In that view of the matter, this writ petition is disposed of in

view of the judgment passed by the Co-ordinate Bench of this

court in the matter of Sunita (supra).

(INDERJEET SINGH),J

JYOTI /32

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