Rajasthan High Court - Jodhpur

Vipin Kumar vs State Of Rajasthan ... on 27 September, 2023

Bench: Augustine George Masih, Vinit Kumar Mathur

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 771/2023

Vipin Kumar S/o Sh. Krishan Lal, Aged About 30 Years, R/o Bolawali, Tehsil Sangariya, District Hanumangarh (Raj.).

----Appellant Versus

1. State Of Rajasthan, Through The Principal Secretary, Medical And Health Services, Government Of Rajasthan, Secretariat, Jaipur.

2. The Director (Non-Gazetted), Directorate Of Medical And Health Services, Rajasthan Jaipur.

3. The Chief Medical And Health Officer, Hanumangarh, District Hanumangarh.

                                                                    ----Respondents


For Appellant(s)              :    Mr. H.S. Sidhu
For Respondent(s)             :    ----

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

27/09/2023

(Oral)

1. The present appeal has been filed against the order dated

27.07.2023 passed by the learned Single Judge in S.B. Civil Writ

Petition No.13986/2021, whereby the writ petition preferred by

the appellant-petitioner was dismissed.

2. Briefly, the facts noted for deciding the present appeal are

that the appellant vied for the post of Nurse Grade-II notified for

Non-TSP area pursuant to advertisement dated 30.05.2018. The

appellant claimed bonus marks on the basis of experience he had

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gained during his stint as a Nurse under NRHM scheme in the

State of Punjab.

3. In pursuance of an interim order in appellant's earlier writ

petition (being S.B. Civil Writ Petition No.12678/2018), an

experience certificate dated 29.06.2018 indicating experience of

three years eight months and ten days was issued to the appellant

by the respondent No.3.

4. On the basis of experience certificate so issued, the appellant

applied for the post and was selected, whereafter an appointment

order dated 28.04.2020 came to be issued in his favour.

5. A few days after the appellant had joined, his appointment

was cancelled by order dated 19.05.2020 passed by Additional

Director, Medical and Health Services, Jaipur for the reason that

the appellant has gained experience in a State other than the

State of Rajasthan.

6. Aggrieved by the order dated 19.05.2020, the appellant

preferred a writ petition being S.B. Civil Writ Petition

No.4660/2020, wherein by an order dated 18.08.2021, the order

dated 19.05.2020 passed by the respondents was quashed and

the respondents were directed to issue 15 days' notice to the

appellant and pass a fresh speaking order in accordance with law.

7. In furtherance of the order dated 18.08.2021, the Director-

respondent No.2 issued a notice to the appellant on 19.08.2021

making a reference of the order dated 18.08.2021 passed in

appellant's writ petition, to which the appellant furnished a

reply/representation on 02.09.2021.

8. The appellant's appointment yet again came to be cancelled

by impugned order dated 09.09.2021, indicating therein that in

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writ petitions involving similar issues, the Court has refused to

grant benefit of bonus marks on the basis of experience gained

while working under schemes in States other than the State of

Rajasthan. And that if such bonus marks are excluded, the

appellant's marks fall short of the cut-off for his category.

9. On 06.10.2021, an interim order was passed by this Court

staying the operation of order dated 09.09.2021, while observing

that the appellant's case is dependent upon final outcome of his

writ petition (being S.B. Civil Writ Petition No.12678/2018).

10. Aggrieved of the order dated 09.09.2021, the appellant

preferred another writ petition (being S.B. Civil Writ Petition

No.13986/2021) which was dismissed by the learned Single Judge

vide order dated 27.07.2023. Hence, the present appeal has been

filed.

11. Heard.

12. Learned counsel for the appellant vehemently submits that

the appellant was entitled for the bonus marks as per the proviso

to Rule 19 of the Rajasthan Medical and Health Subordinate

Service Rules, 1965 (hereinafter referred to as the 'Rules of

1965') as he had discharged similar nature of work to the work of

Nurse Grade-II under the NRHM Scheme in the State of Punjab

and since the NRHM Scheme is a nationwide scheme, therefore,

he was entitled to get the bonus marks.

13. Learned counsel relies upon a judgment rendered by the

Division Bench of this Court in Jagdish Prasad & Ors. Vs. State

of Rajasthan & Ors. : D.B. Civil Writ Petition

No.12492/2015 decided on 09.02.2016, wherein it was held

that all the persons working in the NRHM Scheme anywhere in the

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country and had discharged the similar nature of work to the work

of Nurse Grade-II are entitled for the grant of bonus marks. He

further argued that the learned Single Judge has wrongly rejected

the writ petition while relying upon the judgment of Hon'ble the

Supreme Court in the case of Satyadev Bhagaur Vs. State of

Rajasthan reported in (2022) 5 SCC 314.

14. Learned counsel further argued that since the appellant was

already appointed, therefore, his services could have been

discharged in accordance with the Rajasthan Civil Services

(Classification, Control & Appeal) Rules, 1958 and since the Rules

have not been followed while terminating the services of the

appellant-petitioner, the learned Single Judge has committed an

error while rejecting the writ petition of the appellant-petitioner.

15. Learned counsel further submits that the notice issued by the

respondent-authorities did not disclose the subject matter and,

therefore, no proper opportunity was provided to the appellant

before terminating his services. He, therefore, prays that the

present appeal may be allowed and the impugned orders dated

27.07.2023 & 09.09.2021 may be quashed and set aside.

16. We have considered the submissions made by the counsel for

the appellant and have gone through the relevant record of the

case including the orders impugned dated 27.07.2023 &

09.09.2021.

17. The fact that the appellant-petitioner had discharged the

same nature of duties to the Nurse Grade-II in the State of

Punjab and on the basis of the same, the appellant is claiming

bonus marks in the State of Rajasthan for selection to the post of

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Nurse Grade-II in pursuance of the Advertisement dated

30.05.2018, is not in dispute.

18. The Hon'ble Supreme Court in the case of Satyadev Bhagaur

(supra) had categorically held that it is exclusively the domain of

the State Government whether to extend a particular weightage to

a particular class serving in the State of Rajasthan only and the

same cannot be held discriminatory or arbitrary. Thus, the

argument of the learned counsel that the appellant-petitioner is

entitled to get the bonus marks on the ground that he had

discharged similar nature of work to the work of Nurse Grade-II in

the State of Punjab under the NRHM Scheme is not sustainable

and the appellant is not entitled for bonus marks in the State of

Rajasthan.

19. Hon'ble the Supreme Court considered the judgment of

Jagdish Prasad (supra) in Satyadev Bhagaur (supra) and has held

as under:-

"20. Though the impugned order does not consider this aspect in detail, it will be apposite to refer to the obser- vation made by the Division Bench of the High Court of Rajasthan in the case of Jagdish Prasad and Others vs. State of Rajasthan and Ors. (Civil Writ Petition No.12942/ 2015, dated 09.02.2016):-

"From perusal of the record made available, the Government of Rajasthan has conducted several training programmes for the persons working even on contractual basis and under different schemes controlled by the Government of Rajasthan and Medicare Relief Society. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. It is also pertinent to note that the participation in such trainings is mandat-

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ory and nonjoining of the same may result into nonrenewal of service contract. The persons work- ing with Government of Rajasthan and Medicare Relief Society with experience similar to the work of Nurse Grade-II are posted at different hospitals and other institutions affiliated with the health pro- jects and as such these persons are having a spe- cial knowledge of working in the State. A person having such knowledge certainly forms a class dif- ferent than the persons not having such experi- ence of working in the State. It is also pertinent to note that the benefit extended is only a little weightage on basis of the length of service with experience of working in Rajasthan and not the eli- gibility. A person having qualification eligibility is entitled to face the process of recruitment irre- spective of having any experience or not. The ex- perience gained in other States cannot be com- pared with the working in the State of Rajasthan as every State is having its own problems and is- sues and the persons trained to meet such circum- stances stand on different pedestal."

21. It could thus clearly be seen that the Division Bench in the case of Jagdish Prasad (Supra) after considering the record, has come to the finding that the Government of Rajasthan has conducted several training programmes for the persons working with it on contractual basis, as well as under different schemes. The training pro- grammes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tri- bal and arid zones. The Division Bench has further come to a finding that participation in such a training is man- datory and nonjoining of the same would result in non- renewal of service contracts. It has been held that per- sons having special knowledge in working in the State of Rajasthan form a class different than the persons not having such experience of working in the State. It was found that the benefit extended by the State policy was only that of giving a little more weightage on the basis of experience and all the candidates were required to un-

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dergo the rigor of selection process. The Division Bench has clearly held that the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.

22. We are in complete agreement with the aforesaid ob- servations of the Division Bench. We find that the policy of the State of Rajasthan to restrict the benefit of bonus marks only to such employees who have worked under different organizations in the State of Rajasthan and to employees working under the NHM/NRHM schemes in the State of Rajasthan, cannot be said to be arbitrary."

20. Thus, in the opinion of this Court, the appellant-petitioner

cannot get any benefit in accordance with the judgment of Jagdish

Prasad (supra).

21. The arguments of the learned counsel that proper

opportunity was not granted to the appellant-petitioner is noted to

be rejected only on the ground that in pursuance of the directions

issued by this Court on 18.08.2021, a notice was issued to the

appellant-petitioner on 19.08.2021 and the appellant-petitioner

filed a detailed representation on 02.09.2021 (Annex.15 to the

writ petition) which clearly demonstrates that the appellant-

petitioner was aware of the fact with respect to which the notice

was issued. The respondents, after dealing with the representation