Rajasthan High Court - Jodhpur

Manish Rajpurohit vs State Of Rajasthan (2024:Rj-Jd:43536) on 23 October, 2024

Author: Vinit Kumar Mathur

Bench: Vinit Kumar Mathur

[2024:RJ-JD:43536]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       AT JODHPUR
                S.B. Civil Writ Petition No. 13844/2023

Manish Rajpurohit S/o Shri Inder Singh Rajpurohit, Aged About
31 Years, Resident Of H.no. 117, Rajiv Gandhi Colony, Near Bhati
Circle, Ratanada, Jodhpur.
                                                                     ----Petitioner
                                     Versus
1.       State Of Rajasthan, Through Its Secretary, Medical And
         Health Services, Government Of Rajasthan, Secretariat,
         Jaipur.
2.       Director (Non-Gazetted), Medical, Health And Family
         Welfare     Department,         Swasthya          Bhawan,     Rajasthan,
         Jaipur.
3.       Director (Public Health), Medical, Health And Family
         Welfare     Department,         Swasthya          Bhawan,     Rajasthan,
         Jaipur.
4.       The Principal And Controller, Dr. S.n. Medical College And
         Associate Group Of Hospitals, Jodhpur (Raj.).
5.       The Superintendent, Ummed Hospital, Jodhpur (Raj.).
                                                                  ----Respondents


For Petitioner(s)          :     Mr. Khet Singh.
For Respondent(s)          :     Mr. N.S.Rajpurohit, AAG assisted by
                                 Ms Anita Rajpurohit & Mr. Sher Singh.



         HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

23/10/2024

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.13), 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

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has not provided any evidence whether he worked as a Lab Assistant or Lab Technician.

2. Relevant facts first. The petitioner, serving as a Lab Technician on a contractual basis since 15.07.2024, 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 3 years, 4 months, and 17 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 dated31.07.2023, 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.5694/2021decided 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

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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 Recruitment Notification dated 12.06.2020. Alongwith the application form, the petitioner claimed 10 bonus marks for having worked for 392days as Lab Technician under 'Mukhyamantri Nishulk Janch Yojna'. In support of his claim, he furnished two certificates Nos. 8019 and 8020 dated13.07.2020.

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,

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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. 339as per two experience certificates (Annexure-

3), the petitioner's total number of working days comes to392 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

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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.

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."

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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 experience is on the post of Lab Technician or Lab Assistant(सह यक), 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.13), 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

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post, which was directed to be not filled up vide an interim order dated 21.09.2023 passed by this Court.

10. Pending applications, if any, stand disposed of.

(VINIT KUMAR MATHUR),J 160-AnilSingh/-