Rajasthan High Court - Jodhpur
Radheshyam vs State Of Rajasthan (2024:Rj-Jd:24353) on 28 May, 2024
[2024:RJ-JD:24353]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8289/2024
Radheshyam S/o Shri Ramura, Aged About 28 Years, Resident
Of Lodi Badi Baipass Road Ward No. 23, Pipar City, Jodhpur
(Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Department Of Medical And Family Welfare, Govt. Of Raj.
Secretariat, Jaipur (Raj.).
2. The Director (Non-Gazetted), Medical And Health
Services, Raj., Jaipur.
3. Additional Director (Administration), Directorate Of
Medical And Health Services, Raj., Jaipur.
4. The Principal And Controller, Dr. S.n. Medical College,
Residency Road, Jodhpur.
5. The Superintendent, Umaid Hospital, Siwanchi Gate,
Jodhpur (Raj.).
----Respondents
For Petitioner(s) : Mr. Mahipal Singh Deora
For Respondent(s) :
HON'BLE MR. JUSTICE ARUN MONGA
Judgment (Oral)
28/05/2024
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.17), have rejected the petitioner's
representation for giving her the requisite bonus marks as per
actual length of his work experience. Sundays and Holidays have
been excluded from the period he had worked. It is also stated
[2024:RJ-JD:24353] (2 of 4) [CW-8289/2024]
that he has not provided any evidence whether he worked as a
Lab Assistant or Lab Technician.
2. Relevant facts first. The petitioner worked as a Lab
Technician on a contractual basis from 15.09.2013 to 14.01.2014
and 15.01.2014 to 14.07.2014. He applied for the post of Lab
Assistant following an advertisement issued on May 29, 2018. The
advertisement specified bonus marks for experience. The
petitioner, with 4 years and 17 days of experience, also applied.
Despite multiple representations highlighting the petitioner's
eligibility and correct bonus marks qua length of work experience,
no heed was paid. Finally, by impugned order dated 31.07.2023,
the respondents 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 about excluding Sundays and
Holidays from the period of contractual service 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, relevant portion of which
reads as follows:-
"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
[2024:RJ-JD:24353] (3 of 4) [CW-8289/2024]
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 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."
5. Having seen the facts of the instant case, it turns out that
the petitioner herein is similarly situated.
6. Accordingly, I see no reason, why the benefit of the
aforesaid judgment be also not accorded to the petitioner for
giving him the requisite bonus marks as per actual length of work
experience without excluding therefrom Sundays and Holidays for
the period he had worked.
7. Whether petitioner worked as a Lab Assistant or Lab
Technician is also 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. From the import of the
judgment, it is clear that whether the work 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. Having
perused the aforesaid judgment, I am in respectful agreement
[2024:RJ-JD:24353] (4 of 4) [CW-8289/2024]
with the views expressed therein by my learned Brother Arun
Bhansali J., (as he then was in this Court).
8. In my opinion, the instant writ petition deserves being
allowed in same terms as judgments ibid with consequences to
follow.
9. As an upshot, the impugned order dated 31.07.2023
(Annexure-17), 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 entitlement and reassess his performance.
10. In the parting, I may hasten to add here that the relief
granted to the petitioner is subject to the verification by the
respondents qua the period of his work experience as well as his
claim that he worked as Lab Technician. In case, it is found that
he was not working as Lab Technician, he shall not be entitled to
the benefit of the judgment rendered in Narendra Barwal Vs.
State of Rajasthan & Ors.: S.B. Civil Writ Petition No.
1669/2022 decided on 05.05.2022.
11. Needful exercise be carried within 30 days from the
petitioner approaching the respondents with a web print of the
instant order.
12. Pending application(s), if any, shall also stand disposed of.
(ARUN MONGA),J
8-AK Chouhan/-
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