Rajasthan High Court - Jodhpur
Rakesh Patel vs State Of Rajasthan (2024:Rj-Jd:40812) on 7 October, 2024
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2024:RJ-JD:40812]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 10272/2024
Rakesh Patel S/o Shri Durga Ram, Aged About 29 Years, R/o
Near Diwan Ji Pyau, Bera Ganga Sagar, Bilara, District Jodhpur,
Presently Posted As Lab Technician, At Umaid Hospital, Siwanchi
Gate Road, Jodhpur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Its Additional Chief
Secretary, Medical And Health Services, Government
Secretariat, Jaipur.
2. Director (Public Health), Mukhyamantri Nishulk Janch
Yojana, Medical And Health Department, Swasthya
Bhawan, Tilak Marg, C-Scheme, Jaipur.
3. Director (Non-Gazetted), Medical, Health And Family
Welfare Department, Swasthya Bhawan, Rajasthan,
Jaipur.
4. The Director, State Institute Of Health And Family Welfare
(Sihfw), Jhalana Doongri Colony, Ghat Ki Guni, Jaipur.
5. The Principal And Controller, Dr. S.n. Medical College,
Shastri Nagar, Jodhpur.
6. The Superintendent, Umaid Hospital, Siwanchi Gate Road,
Jodhpur.
----Respondents
For Petitioner(s) : Mr. Yash Pal Khileree.
For Respondent(s) : Mr. N.S.Rajpurohit, AAG assisted by
Ms Anita Rajpurohit.
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
07/10/2024
1. Heard learned counsel for the parties.
2. The present writ petition has been filed with the prayer that
the petitioner may be granted 30 bonus marks on account of the
[2024:RJ-JD:40812] (2 of 8) [CW-10272/2024]
work experience certificates produced by him for consideration of
his candidature on the post of Lab Technician.
3. Briefly noted the facts in the present writ petition are that
the petitioner is holding the qualification of Senior Secondary
along with two years' Diploma Course in Medical Laboratory
Technology. The petitioner, being fully eligible for the post of Lab
Technician, applied in pursuance of the notification/advertisement
issued by the State Government on 31.05.2023 for appointment
to the post of Lab Technician. In pursuance of the application
preferred by the petitioner, the respondents called him for
document verification and after undergoing the process of
verification of the documents, the name of the petitioner was
reflected in the provisional list prepared by them on 04.10.2023
(Annex.12). Thereafter, a final list of the selected candidates was
declared by the respondents on 11.06.2024 (Annex.13) in which
the name of the petitioner was not included. Hence, the present
writ petition has been filed.
4. Learned counsel for the petitioner vehemently submits that
the petitioner has secured 73.683 marks and the cut-off marks
declared by the respondents for General Category and OBC
category are 59.318 marks and 52.526 marks respectively.
Learned counsel further submits that as per the marks secured by
the petitioner, he should have been selected in both the categories
i.e. General Category as well as the OBC Category. He, therefore,
submits that the action of the respondents in denying the
appointment to the petitioner on the post of Lab Technician is
arbitrary and unreasonable.
[2024:RJ-JD:40812] (3 of 8) [CW-10272/2024]
5. Learned counsel for the petitioner also submits that the
petitioner performed the work of Lab Technician from 01.08.2019
to 15.04.2022 and certificates to that effect were also issued by
the competent authorities, which are placed on record as Annex.-
8. Learned counsel submits that another experience certificate of
performing the work of Lab Technician from the period of
01.07.2022 to 30.05.2023, issued by the competent authorities,
was submitted to the respondents which is also placed on record.
He further submits that the petitioner has been registered with the
Rajasthan Para-Medical Council on 06.06.2022. Learned counsel
submits that despite the petitioner being eligible and holding all
the requisite qualifications for appointment on the post of Lab
Technician, the same is being denied to him. He, therefore, prays
that the writ petition may be allowed.
6. Mr. N.S. Rajpurohit, learned Additional Advocate General
assisted by Ms. Anita Rajpurohit and Mr. Sher Singh Rathore,
Advocates, vehemently opposed the submissions made by counsel
for the petitioner. He submits that the bonus marks for performing
the duties of Lab Technician by the petitioner cannot be granted to
him on the ground that while the petitioner was discharging his
duties of Lab Technician at that relevant point of time, he was not
holding the certificate of registration issued by the Rajasthan Para-
Medical Council. Learned Additional Advocate General further
submits that the work done by the petitioner is covered under the
Definition 2 (c) of the Rajasthan Para-Medical Council Act, 2008
(hereinafter referred to as the Act of 2008) wherein, it has been
clearly mentioned that a "Para-medical professional" means a
person who holds the recognized Para-medical qualification and is
[2024:RJ-JD:40812] (4 of 8) [CW-10272/2024]
registered as such in the Register of Para-medical professionals
maintained under this Act. Since the petitioner was not holding
the registration under the Rajasthan Para-Medical Council while
discharging the duties of Lab Technician, therefore, as per the
rules, the certificate issued by the competent authorities cannot
be considered a valid certificate as the work of Lab Technician
done by the petitioner was without holding the requisite
qualification. He further submits that the Act of 2008 also
prescribes a prohibition on practice to perform the duties of a
Para-medical professional if the conditions mentioned in the Act
are not fulfilled and since the petitioner was not holding the
requisite registration of Para-medical Council at that relevant point
of time, therefore, the work done by him as Lab Technician for the
period shown in the certificate cannot be considered for grant of
30 bonus marks.
7. Learned Additional Advocate General relied upon the
judgment rendered by a Co-ordinate Bench of this Court in the
case being S.B. Civil Writ Petition No.15214/2023 : Madhav
Singh vs. State of Rajasthan & Ors. decided on 21.11.2023. He
also relied upon another judgment rendered by the Hon'ble
Supreme Court in the case of Indian Airlines & Ors. vs. S.
Gopalakrishnan reported in (2001) 2 SCC 362. He, therefore,
prays that the writ petition filed by the petitioner may be
dismissed.
8. I have considered the submissions made at the Bar and have
gone through the relevant records of the case.
9. The respondents vide notification/advertisement dated
31.05.2023 advertised the posts of Lab Technician to be filled in
[2024:RJ-JD:40812] (5 of 8) [CW-10272/2024]
by the eligible candidates. The eligibility criteria and the requisite
qualifications were mentioned in detail in the
notification/advertisement dated 31.05.2023. For brevity, the
qualifications for holding the post of Lab Technician as mentioned
in the advertisement are reproduced as under:
"क) 1- लैब टेक्नीशशिय् पद हेतत नय््तम शिैक्ष्षणक्षणिक यिक योयोगयतो:
I. Senior Secondary in Science with either Biology
or Mathematics or its equivalent with Diploma in
Medical Lab Technician from an institute recognized
by the State Government, Central Government,
Rajasthan Para Medical Council.
and
II. Registered in Rajasthan Para Medical Council.
अधिमान्य ्ययोग्यताताः− द देवनागरगरी ल लिपिपि म हं हिनदगरी ी भाभाषा ा का ा जान एवञान एवं
राजस्ान ा ककी सञान एवंसा क्तत ा का ा जान।
नयोटताः- शैक्षणषणिा क ्ययोग्यता मााध्यलमा क लशक्षा ्षा बयोा बोरष, राजस्ान ा क दे अनअसार
समा कक्ष ं हियोनोनी चा हं हिए। राजस्ान िपिैराम देेडा बोरा क लि ा कल कौंलस लि, ज्यिपिरअ दवारा
जारगरी िपिञान एवंजोनी्यन क्रमाञान एवंा क ल लिखना अतनवा्यष ं हिै। िपिञान एवंजोनी्यन ा क दे अी भाव म
िपिञान एवंजोनी्यन सञान एवं्षा बञान एवंिोनी अन्य ा कयोई दसताव देज मान्य नं हिगरीञान एवं ं हियोगा। अ अभ्य्अभ्यर्थी ा का
ऑन लिाइन आव देदन ा ककी अननतम ततध् ता क राजस्ान िपिैराम देेडा बोरा क लि
ा कल कौंलस लि म िपिञान एवंजोनी्यन ं हियोना अतनवा्यष ं हिै।
उकत ा क दे अततररकत अ अभ्य्अभ्यर्थी ा क दे ल लि्य दे राजस्ान धचन चिका कचिकितसा एवञान एवं
सवास््य अिोनीनस् स देवा तन्यम 1965 (्य्ा सञान एवंशयोधित) म ्य्ा
पव हं हित समसत अन्य ्ययोग्यता्य िपियषणिष ा करना अतनवा्यष ं हिै। ्यं हि
आव दे हदत िपिद ा क दे ल लि्य दे इन तन्यमों ा क दे तं हित त तन्यअनकत ं हि देतअ अ्ययोग्य
नं हिगरीञान एवं ं हियोना चा हं हि्य दे।"
10. Besides this, in the advertisement it was also mentioned that
a candidate will be entitled to certain bonus marks in accordance
[2024:RJ-JD:40812] (6 of 8) [CW-10272/2024]
with the guidelines issued by the State Government vide their
order dated 25.04.2023. The order dated 25.04.2023 is produced
on record as Annex.-6. A bare perusal of the order dated
25.04.2023 shows that a candidate who has served the
respondent Department during the Covid-19 pandemic (starting
from 22.03.2020 to 13.02.2022) for a period of less than two
years will be entitled for 15 bonus marks, for a period of more
than 2 years to less than 3 years will be entitled for 20 marks and
for more than 3 years, he will be entitled for 30 bonus marks.
Admittedly, the petitioner has served the respondent-Department
as Lab technician during the Covid-19 period and to that effect,
the experience certificates have been issued by the competent
authorities of the respondent-Department to the petitioner. The
experience certificates issued by the competent authorities are
also not disputed by the respondents.
11. Since, the experience certificates of the petitioner clearly
show that he has performed the work of Lab Technician for more
than three years, therefore, in the opinion of this Court, the
petitioner is entitled for 30 bonus marks while considering his
candidature for the post of Lab Technician in pursuance of the
advertisement/notification dated 31.05.2023.
12. The argument of learned Additional Advocate General that
the petitioner is not entitled for grant of bonus marks on the
ground that, while discharging the duties as Lab Technician in the
respondent-Department at that relevant point of time, he was not
holding the certificate of registration by the Rajasthan Para-
Medical Council is noted to be rejected on the ground that the
notification/advertisement dated 31.05.2023 neither prescribes
[2024:RJ-JD:40812] (7 of 8) [CW-10272/2024]
nor mandates any condition that only those experience certificates
will be considered for grant of bonus marks which have been
issued by the respondent authorities for the work done by a
candidate after obtaining the certificate of Registration by the
Rajasthan Para-Medical Council. The advertisement/notification
also does not speak about a condition that only the work
experience of a candidate will be considered who has performed
the work of Lab Technician or Lab Assistant after obtaining the
certificate of registration of the Rajasthan Para-Medical Council.
The condition mentioned in the advertisement is that, as of the
date on which an application is filed, the candidate must hold
requisite qualifications as enumerated in the advertisement
including the certificate of registration with the Rajasthan Para-
Medical Council. Since the petitioner is meeting both the criteria
mentioned therein, therefore, there is no valid reason for the
respondents to deny the award of 30 bonus marks on the basis of
the certificates of experience produced by him.
13. The judgment rendered by the Hon'ble Supreme Court in the
case of Indian Airlines vs. S. Gopalakrishnan (supra), upon
which the learned Additional Advocate General relied, is clearly
distinguishable from the present case as in the judgment rendered
by the Hon'ble Supreme Court, it was held that in addition to the
qualification, if the experience is prescribed it would only mean
acquiring the experience after obtaining the necessary
qualification but not before obtaining such qualification. Whereas,
in the present case, there is no column mentioned in the
notification/advertisement for any experience viz-a-viz the
qualification required for the post of Lab Technician. Similarly, as
[2024:RJ-JD:40812] (8 of 8) [CW-10272/2024]
far as the judgment relied upon by the learned Additional
Advocate General rendered by the Co-ordinate Bench of this Court
in the case of Madhav Singh (supra) is concerned, the same is
also clearly distinguishable from the facts and circumstances of
the present case.
14. In view of the discussion made above, the writ petition
merits acceptance and the same is allowed. The respondents are
directed to grant 30 bonus marks to the petitioner on the basis of
the experience certificate produced by him and after grant of
those 30 marks, if the name of the petitioner comes in the merit,
he shall be given appointment on the post of Lab Technician
advertised vide advertisement dated 31.05.2023, if he is
otherwise eligible in all respects.
15. It is made clear that the petitioner will be entitled to all the
consequential benefits on notional basis with effect from the date
on which his juniors have been given appointment. The order
passed shall be complied with by the respondents within a period
of six weeks from the date of receipt of certified copy of this order.
16. Stay petition as well as other pending misc. applications, if
any, shall stand disposed of.
(VINIT KUMAR MATHUR),J
669-Anil Singh/-
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