Rajasthan High Court

Santosh Pareek Daughter Of Shri ... vs State Of Rajasthan on 12 October, 2022

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 9041/2022

Santosh Pareek Daughter Of Shri Raghunath Prasad Pareek,
Aged About 43 Years, Resident Of Ramdev Mandir Ke Pichhe,
Ward No. 10, Nawalgarh, District Jhunjhunu (Raj.)
                                                                    ----Petitioner
                                    Versus
1.      State Of Rajasthan, Through Its Principal Secretary,
        Department Of Medical And Health, Secretariat, Jaipur
        (Raj.)
2.      Director (Non Gazzate) Medical And Health Department,
        Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur (Raj.)
3.      Additional Director (Administration), Medical And Health
        Department, Swasthya Bhawan, Tilak Marg, C-Scheme,
        Jaipur (Raj.)
                                                                 ----Respondents

For Petitioner(s) : Ms. Komal Giri Goswami. For Respondent(s) : Dr. V.B. Sharma, AAG.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

12/10/2022

Counsel for the petitioner submitted that the issue raised in

this writ petition has been considered and decided by the Co-

ordinate Bench of this Court at Principal Seat, Jodhpur in the

matters as detailed below:-

(1) In the matter of Bhawna Lohdar Vs. State of Rajasthan

& Ors. passed in S.B. Civil Writ Petition No.1535/2022,

decided on 24.05.2022, it has been held as under:-

"This petition along with a bunch of 20 writ petitions, enlisted in the appended Schedule give rise to same issue, which shall be treated to be part and parcel of

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the order instant, are decided by a common order.

These writ petitions have been filed by the petitioners, who are candidates at the recruitment to the post of Lab Assistant vide notification dated 29.5.2018. It is inter alia indicated in the writ petitions that the qualification inter alia provided that those having minimum 3 years' experience of working as Laboratory Assistant / Lab Technician in State Government Hospitals on contract basis or through Service Provider Agency, shall also be eligible.

The petitioners being eligible based on the said eligibility indicated after obtaining the requisites from the concerned officers, filed applications. The certificates were valid for eligibility as well as for award of bonus marks as provided in the advertisement. However, the respondents apparently based on material, which was collected by the respondents ex parte, have not accepted the certificates produced by the petitioners of having worked on the post of Lab Technician / Lab Assistant and treating them as having worked on post different from the said post i.e. as Lab Attendant / Ward-boy / Cleaner / Helper has held them ineligible and have not awarded bonus marks.

Various submissions have been made that in the petitions seeking to question the action of the respondents in rejecting the certificates produced by the petitioners and claiming that they are entitled to be treated as qualified and for award of bonus marks based on the said certificates. A response to the writ petition initially was filed by the respondents seeking to indicate that the respondents after looking to the nature of certificates produced by the petitioners, have sought specific inputs from the authorities, which have issued the certificates based on an Eleven Pointer issued to the said authorities and as the said authorities have disclosed facts in the Eleven Pointer, which indicates that the experience of the petitioners is not that of Lab Technician / Lab Assistant, they have been held as ineligible.

Today learned counsel appearing for the State has made an additional submission by referring to the Rajasthan Medical and Health Subordinate Service (Second

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Amendment) Rules, 2021, that in terms of the amendment made by notification dated 9.12.2021, which has came into effect from 23.5.2018 and essentially pertains to the advertisement dated 29.5.2018, the requirement for eligibility inter alia includes diploma in Medical Laboratory Technology even from the un-recognized institution besides the experience on the post of Laboratory Technician or Laboratory Assistant.

Further submissions have been made that the authorities which have issued the certificates were specifically required to indicate the nature of duties performed by the candidates based on the job responsibilities of various posts, which were supplied to them and then come to a conclusion as on what post, the experience was gained by the candidates and based on the said material, the decision has been taken, which cannot be faulted. However, it is not denied that the issue has been decided by the authorities holding the petitioners as not qualified without affording any opportunity of hearing to them and in teeth of the certificates issued by the very same authorities, who have responded to the Eleven Pointer. In the circumstances of the case, where admittedly the respondents have relied on certain material, which has been collected ex parte supplied by the same authorities, who have issued the certificates favouring the petitioners making them eligible for the appointment in terms of the advertisement dated 29.5.2018, which certificate is sought to be displaced based on such material, the said action could not have been taken by the respondents without affording an opportunity of hearing to the petitioners and/or at least calling upon them to respond to the proposed action on their part by disclosing the material / Eleven Pointer response received by them, therefore, the said action of the respondents is in gross violation of principles of natural justice. In view of the above fact situation, wherein, admittedly the petitioners have not been afforded any opportunity of hearing before the respondents have come to the conclusion based on the material received by them disqualifying the petitioners for the post of Laboratory

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Assistant, the action of the respondents in this regard cannot be approved. Consequently, the petitions filed by the petitioners are allowed. The action of the respondents in deciding the issue without affording any opportunity of hearing to the petitioners, is set aside. The respondents would now disclose the material to the petitioners and on the petitioners making a representation in this regard, they would decide the eligibility of the petitioners / the validity of the certificate issued to them and based on their decision, would proceed further in the matter.

The Director (Non-Gazetted) would disclose the material within a period of 15 days to the petitioners, response / representation, if any, be made by the petitioners within a period of two weeks thereafter to the Director (Non-Gazetted) and he would pass appropriate orders on the same within a period of four weeks thereafter. The petitioners would be free to take appropriate proceedings, in case, they have any grievance qua the decision taken by the respondents in this regard. The respondents shall not conclude the recruitment before passing of the final orders as indicated hereinbefore. Insofar as, the issue sought to be raised by the respondents based on the notification dated 9.12.2021 is concerned, the said issue is kept open."

(2) In the matter of Jagdish Prassad Nai Vs. State of

Rajasthan & Ors. passed in S.B. Civil Writ Petition

No.1507/2022, decided on 26.05.2022, it has been held as

under:-

"This petition along with a bunch of 12 writ petitions, enlisted in the appended Schedule give rise to same issue, which shall be treated to be part and parcel of the order instant, are decided by a common order.

These writ petitions have been filed by the petitioners aggrieved against the action of the respondents in counting the period of experience of the petitioners, which has resulted in either their becoming disqualified for applying to the post of

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Laboratory Assistant pursuant to the advertisement dated 29.5.2018 and/or to get less bonus marks than what they are actually entitled to.

Submissions have been made that though the petitioners have worked for the entire month, as the emoluments paid to the petitioners have been calculated based on 26 days emoluments, the respondents while calculating the period of experience, have not treated them to have worked for the entire month, which action of the respondents is contrary to the factual position as well as the provisions of the Minimum Wages Act, wherein, the minimum wages are required to be calculated in terms of the notifications issued, which provide that the daily wages are required to be calculated by dividing the monthly wages by 26 days and that in the rates fixed, weekly holidays are included in salary, therefore, the respondents could not have deducted the period based on the fact of payment of wages for particular number of days. Further reliance has been placed on judgment in Mahipal Lakhera v. State of Rajasthan & Ors.: S.B. Civil Writ Petition No.2577/2020, decided on 11.1.2021. Learned counsel for the respondents made submissions that wherever the petitioners have objections pertaining to the calculation made by the respondents pertaining to their period of experience, they may make representations to the respondents and the same shall be appropriately decided by the respondents. In view of the above submissions made, the petitioners may make representation to the Director (Non-Gazetted) with regard to the calculation of their experience and consequential fact about their eligibility / award of bonus marks within a period of 15 days from today.

The Director (Non-Gazetted) would pass appropriate orders on the representations to be made by the petitioners within a period of four weeks thereafter. The petitioners would be free to take appropriate proceedings, in case, they have any grievance qua the decision taken by the authority in this regard. The respondents shall not conclude the recruitment before passing of the final orders as indicated hereinbefore.

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It is expected of the respondents to conclude the entire exercise by 31st of July, 2022."

(3) In the matter of Narendra Barwal Vs. State of Rajasthan

& Ors. passed in S.B. Civil Writ Petition No.1669/2022,

decided on 05.05.2022, it has been held as under:-

"This writ petition has been filed by the petitioner aggrieved against non- consideration of his experience certificate dated 22.06.2018 (Annex.6) for recruitment to the post of Laboratory Assistant pursuant to the advertisement dated 29.05.2018 (Annex.3).

It is, inter-alia, indicated that in terms of the advertisement, the respondents have provided award of bonus marks based on the experience of the candidates. The experience certificate of the petitioner indicated the bonus marks as well as eligibility of the candidates based on their experience. The experience certificate of the petitioner indicated experience of 03 years, 05 months & 27 days. The petitioner applied in terms of the advertisement claiming his experience as Laboratory Assistant. The petitioner was called for document verification, however, in the provisional merit list issued by the respondents, the name of the petitioner was not included though the cut-off meant for petitioner's category is 23.800 and the petitioner had obtained 42% marks. Based on the said aspect, the present petition has been filed.

A reply to the petition has been filed, inter- alia, indicating that as the authority has issued certificate with the nomenclature of Lab Assistant, though the candidates were working on the post of Helper / Cleaner and Lab Attendant, the respondents required the authorities to respond to the 11 pointer. In response to the 11 pointer filed as Annex. R/1, it was indicated that the petitioner was engaged as a Helper and as he was engaged as a Helper, he is not entitled for the experience of Lab Assistant and as such, he is not qualified and therefore, his name has not been included in the provisional merit list.

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Learned counsel for the petitioner with reference to the certificate dated 22.06.2018 (Annex.6) pointed out that the experience of the petitioner has been indicated as Lab Sahayak, which can only be termed as Lab Assistant and once the experience of the petitioner is that of Lab Assistant, he is eligible for the post.

Further submissions were made with reference to Annex.-R/1 indicating that the petitioner had helped in the testing work in the Lab and was being paid for the post of Lab Assistant and as such, there is no reason for the respondents to claim otherwise and as such, the denial of eligibility to the petitioner cannot be justified.

Learned counsel appearing for the respondents vehemently opposed the submissions.

It was submitted that as the petitioner, who was engaged as a Helper and was being paid as a Helper only, he is not entitled for the eligibility based on the experience certificate issued to him.

Various submissions were made regarding the fact that when the petitioner was engaged in the year 2013, the post of Lab Assistant did not exist and it was only the post of Helper / Cleaner, which was existing at that time and the petitioner was indicated as Lab Assistant, which cannot be a reason to accept his status as a Lab Assistant for the purpose of eligibility and therefore, the petition deserves dismissal. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. The eligibility condition in terms of the advertisement, interalia, reads as under :- "1. Secondary or its equivalent; and

2. Any Diploma in Medical Laboratory Technology from an institute recognized by the State Government;

or having minimum three years experience of working as Laboratory Assistant / Laboratory Technician in State Government Hospitals on contract basis or through Service Provider Agency, shall also be eligible."

A perusal of the above would reveal that the experience required is of working as Laboratory Assistant / Laboratory

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Technician in the State Government Hospital on contract basis or through Service Provider Agency and said candidate has been held to be eligible. The certificate issued to the petitioner Annex.6, inter-alia, indicates that the petitioner has worked as Lab Sahayak. Even in the 11 pointer obtained by the respondents from CM & HO, Nagaur (Annex.R/1), it is indicated that the post of the petitioner was Lab Sahayak, the contract order indicated his post as Helper, the payment has been made of the post of Lab Sahayak and the work being performed by him has been indicated as 'ySc esa tkap dk;Z es a lg;ksx' and finally his post has been indicated as Helper.

As noticed herein-before, the eligibility condition, inter-alia, indicates experience of working as Laboratory Assistant. In terms of the 11 pointer relied on by the respondents also, the petitioner was working as 'Lab Sahayak', if it is translated, it means Lab Assistant and the work performed by him indicated as helping in the working of testing in the Lab. The submissions made that mere helping would not make him eligible, cannot be accepted, inasmuch as, the eligibility conditions indicated both, working as Laboratory Assistant / Laboratory Technician and therefore, even those assisting in the testing, as indicated in the 11 pointer, has to be held eligible for the purpose of recruitment in terms of the advertisement dated 29.05.2018.

The fact that the post for which the contract was granted indicated the petitioner as Helper, by itself cannot be a determining factor for the purpose of eligibility / grant of bonus marks. It is the work, which is performed by the person, which alone would determine the eligibility as the eligibility condition indicates 'experience of working as Lab Assistant/Lab Technician'. In view of the above, the writ petition filed by the petitioner is allowed. The respondents are directed to take into consideration the experience of the petitioner in terms of the experience certificate (Annex.6) and in case, he is otherwise eligible, consider the case for appointment in terms of the advertisement dated 29.05.2018."

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(4) In the matter of Mahipal Lakhera Vs. State of Rajasthan

& Ors. passed in S.B. Civil Writ Petition No.2577/2020,

decided on 11.01.2021, it has been held as under:-

"1. The petitioner vied for the post of Nurse Grade II pursuant to advertisement dated 30.05.2018.

2. The petitioner has an experience of working as a Nurse Grade II on a Mobile Medical Van with a trust called 'Shri Parmatama Chand Bhandari Charitable Trust, Jodhpur' on contract basis for a period of 3 years, 1 month and 27 days.

3. While submitting his application form, the petitioner claimed 30 bonus marks for such experience.

4. The petitioner did not find his name in the provisional select list and final select list and on enquiry, he was informed that he has been awarded 20 bonus marks in place of 30.

5. It is the case of the petitioner that if he is/was awarded 30 marks, he would fall in the merit list of his category, cut off whereof is 72.

6. Learned counsel for the petitioner argued that the petitioner had worked for more than 3 years and produced a certificate duly issued by competent authority, thus, respondents were not justified in reducing petitioner's bonus marks to 20.

7. Mr. Mehta, learned counsel appearing for the respondentState argued that petitioner had produced a certificate of having worked in Mobile Medical Van for 3 years and 1 month, but the duty chart for persons deployed in Mobile Van including petitioner, shows that they are required to work only for 20 days in a month. He argued that this being the position, petitioner's experience is liable to be calculated on the basis of actual number of working days, which were 20 in each month. Accordingly, petitioner has experience of 2 years and 1 month and thus, entitled for only 20 bonus marks, submitted Mr. Mehta.

8. Heard.

9. It is undisputed that the experience certificate duly verified by the competent authority shows that petitioner possesses experience of 3 years, 1 month and 27

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days. It is to be noted that petitioner's employer had made payment on monthly basis and his experience certificate has also been issued on such basis.

10. In considered opinion of this Court, once the salary is being paid on monthly basis, the petitioner and/or any other employee is required to be treated to have worked for all 30 days in a month, barring exceptional cases.

11. Looking to the nature of job responsibilities, if a person is required to work on lesser number of days in a month, it would be injustice and disrespect to his hard work or peculiarity of job on account of which he is given duties only for 20 days, despite payment being made for 30 days.

12. It can well be understood that since the petitioner's duty was to be attached with Mobile Medical Van, he was required to work only for 20 days, obviously looking to the onerous nature of the duties.

13. In response to Court's query, Mr. Mehta admitted that even if a person does not work on Sundays or National Holidays, such days are required to be considered in his experience. If a person despite being assigned duties for 20 days in a month, has been paid salary for the whole month, why would his experience be not of 30 days, particularly when he did not remain absent?

14. The respondents' action of calculating experience on the basis of duty chart or number of days the petitioner was required to work, is therefore, per-se arbitrary.

15. The writ petition is, therefore, allowed. Petitioner is held entitled for 30 bonus marks.

16. The respondents are directed to award 30 bonus marks to the petitioner and accord him appointment, if he falls in merit and is otherwise eligible.