Rajasthan High Court - Jodhpur
Kailash Singh Bhati vs State Of Rajasthan (2024:Rj-Jd:10084) on 27 February, 2024
[2024:RJ-JD:10084]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13124/2023
Kailash Singh Bhati S/o Shaitan Singh Bhati, Aged About 41
Years, R/o Gali No. 3, Jagdamba Colony, Behind Mahesh Hostel,
Bombay Motors, Jodhpur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Department Of Medical Health And Welfare, Government
Of Rajasthan, Secretariat, Jaipur, (Raj.).
2. Director (Non Gazetted), Directorate, Medical And Health
Services, Jaipur, Rajasthan.
3. Principal And Controller, Dr. S. N. Medical College,
Residency Road, Jodhpur.
4. Superintendent, Umaid Hospital, Siwanchi Gate, Jodhpur,
Rajasthan.
----Respondents
For Petitioner(s) : Mr. Narendra Singh Rajpurohit.
For Respondent(s) : Mr. Rajendra Singh a/w Mr. Mohan Lal
for Mr. B.L. Bhati, AAG
HON'BLE MR. JUSTICE ARUN MONGA
Order
27/02/2024
1. The petitioner's grievance herein inter alia arises from the
inaction and directive of the respondents, who vide impugned
order dated 31.07.2023 (Annex.21), have rejected the petitioner's
representation declining him the requisite bonus marks as per
actual length of his work experience by excluding Sundays and
Holidays from for the period he had worked and has not provided
any evidence whether he worked as a Lab Assistant or Lab
Technician.
[2024:RJ-JD:10084] (2of 5) [CW-13124/2023]
2. Relevant facts first. The petitioner, serving as a Lab
Technician on a contractual basis since December 1, 2011, applied
for the post of Lab Assistant following an advertisement issued on
May 29, 2018. The advertisement specified bonus marks for
experience, and the petitioner, with 6 years, 3 months, and 29
days of experience, also applied. Despite being listed for
document verification and meeting the eligibility criteria, an office
order dated September 5, 2019, forwarded incorrect work
experience details by the respondent's office by excluding
Sundays and Holidays while calculated the total period of work
experience. Despite multiple representations highlighting the
petitioner's eligibility and correct bonus qua length of work
experience, no heed was paid. Finally, by impugned order dated
31.07.2023, the respondent authorities have rejected the
representation of the petitioner. Hence, this writ petition.
3. In the aforesaid backdrop, I have heard the rival contentions
and perused the case file.
4. The controversy raised herein is no more res integra.
Reference may be had to judgment rendered by a Coordinate
Bench of this Court in the case of Suresh Choudhary Vs. State
of Rajasthan & Ors. : S.B. Civil Writ Petition No.5694/2021
decided on 14.07.2023, which reads as below:-
"1. By way of the present writ petition, the
petitioner has raised a grievance that while
considering his candidature, respondents have not
awarded him bonus marks regardless of the fact
that he has worked for more than 392 days.
2. The facts narrated briefly are that the petitioner
vied for the post of Lab Technician pursuant to the
[2024:RJ-JD:10084] (3of 5) [CW-13124/2023]
Recruitment Notification dated 12.06.2020.
Alongwith the application form, the petitioner
claimed 10 bonus marks for having worked for 392
days as Lab Technician under 'Mukhyamantri
Nishulk Janch Yojna'. In support of his claim, he
furnished two certificates Nos. 8019 and 8020 dated
13.07.2020.
3. On declaration of result, the petitioner was
accorded 47.792 marks, while cut off for OBC
category was 48.73.
4. The petitioner has approached this Court with the
grievance that the respondents have erred in not
giving him 10 bonus marks, on the pretext that his
actual working days after deducting 53 days weekly
offs were 339.
5. The fact that the petitioner has not been awarded
bonus marks is not in dispute. The only question,
which requires to be decided by this Court is, as to
whether the weekly holiday (Sunday) and National
Holidays etc. can be excluded while calculating
experience for the purpose of bonus marks?
6. The answer to this question does not require any
detailed deliberation. As per the Labour Laws, all
organizations/institutions/enterprises etc., whether
government owned or private are, required to
observe weekly offs or are bound to allow one
weekly off to each employee. If the petitioner was
allowed a weekly off by the respondent themselves,
his experience cannot be counted hyper-technically
by excluding such day offs. The State's action of
calculating petitioner's working days to be 339
(324+15) days and considering such period to be
the actual working days is clearly illegal and
violative of petitioner's fundamental rights.
7. If 53 days of weekly offs are added in the
petitioner's actual number of working days i.e. 339
as per two experience certificates (Annexure-3), the
petitioner's total number of working days comes to
392 days, which is obviously more than a year.
8. To provide or allow holiday of Sunday or weekly
off is a statutory duty of all the employers including
State Government. Section 13(1)(b) of The
Minimum Wages Act, 1948 and notifications issued
by the appropriate Government from time to time
enjoin upon the State Government/employer to give
one paid holiday to the employee every week. The
weekly off cannot be equated with a leave which an
employee takes after it being sanctioned. Such
weekly off is observed or required to be given by
the organizations itself, without the employee
demanding it. Hence, such days of weekly offs
cannot be deducted while calculating the experience
or counting the number of days a candidate has
[2024:RJ-JD:10084] (4of 5) [CW-13124/2023]
worked. The respondent's stand is both, contrary to
law and arbitrary, given that the experience is to be
counted on yearly basis as per Rule 19 of the
Rajasthan Medical & Health Subordinate Service
Rules, 1965.
9. Almost similar view has been taken by this Court
in the case of Mahipal Lakhera vs. State of
Rajasthan & Ors. : S.B. Civil Writ Petition No.
2577/2020 decided on 11.01.2021.
10. As a consequence of above deliberation, the
present writ petition is allowed.
11. The respondents are directed to give 10 bonus
marks to the petitioner and offer him an
appointment (if he is otherwise eligible), by
31.08.2023
12. It is to be noted that by way of interim order
dated 27.05.2021, one post of Lab Technician in
petitioner's category (OBC) was ordered to be kept
vacant. If the petitioner is found eligible, he be
given appointment against such post and if he is
ineligible, such post be filled up in accordance with
law.
13. Stay application also stands disposed of."
4. Having seen the facts of the instant case, it turns out that
the petitioner herein similarly situated.
5. Accordingly, I see no reason, why the benefit of the aforesaid
judgment be also not accorded to the petitioner.
6. It is so ordered
7. The instant writ petition is allowed in same terms as
judgment ibid with consequences to follow.
8. Before parting, I may also hasten to add here that whether
petitioner worked as a Lab Assistant or Lab Technician is
irrelevant, in view of another judgment rendered by this Court in
the case of Narendra Barwal Vs. State of Rajasthan & Ors. :
S.B. Civil Writ Petition No.1669/2022 decided on
05.05.2022. Having perused the aforesaid judgment, I am in
respectful agreement with the views expressed therein by my
learned Brother Arun Bhansali J., (as he then was in this Court).
From the import of the judgment, it is clear that whether the work
[2024:RJ-JD:10084] (5of 5) [CW-13124/2023]
experience is on the post of Lab Technician or Lab Assistant
(सहायक), it is insignificant as long as the candidate has worked in
the laboratory since duties of Lab Assistant and Lab Technician are
similar in nature.
9. As an upshot, the impugned order dated 31.07.2023
(Annex.21), vide which the representation of the petitioner was
rejected is quashed. The respondents are directed to consider the
candidature of the petitioner and award him bonus marks as per
his entitlement and reassess his performance. Resultantly, subject
to his being otherwise found meritorious, he be accorded the
benefit of the vacant post, which was directed to be not filled up
vide an interim order dated 15.01.2024 passed by this Court.
10. Pending applications, if any, stand disposed of.
(ARUN MONGA),J
11-/Jitender//-
Whether fit for reporting- Yes / No
Powered by TCPDF (www.tcpdf.org)
