Rajasthan High Court - Jodhpur
Arjun Lal Charpota vs State Of Rajasthan (2024:Rj-Jd:39165) on 20 September, 2024
[2024:RJ-JD:39165]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18096/2023
Arjun Lal Charpota S/o Nand Lal Charpota, Aged About 39 Years,
Village And Post Kherdipada, Khairwa, Tehsil Ghatol And District
Banswara (Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Medical And Health, Government Of
Rajasthan, Jaipur.
2. The Director, Department Of Medical And Health,
Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur.
3. Addl. Director (Admn.), Department Of Medical And
Health, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur.
4. Joint Director, Department Of Medical And Health
Services, Zone Udaipur (Raj.).
5. The Chief Medical And Health Officer, Pratapgarh,
Rajasthan
----Respondents
For Petitioner(s) : Mr. O.P. Sangwa
For Respondent(s) : Mr. N.S. Rajpurohit, AAG
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
20/09/2024
1. The present writ petition is filed by the petitioner challenging
the order dated 01.08.2023, whereby the request for grant of
three years' experience to enable the petitioner to participate in
the recruitment process and to get bonus marks, was denied on
the ground that after excluding Sundays and public holidays while
fixing the number of days for calculating the experience for the
[2024:RJ-JD:39165] (2 of 6) [CW-18096/2023]
purpose of granting bonus marks, the requisite number of days
required could not be fulfilled.
2. Mr. O.P. Sangwa, learned counsel representing the petitioner
submitted that a similar issue has already been dealt with by this
Court in the case of Suresh Choudhary Vs. State of Rajasthan &
Ors. : S.B. Civil Writ Petitio No.5694/2021 and the same was
challenged by the Government in D.B. Special Appeal Writ
No.862/2024 (State of Rajasthan & Ors. Vs. Bharti). The Division
Bench of this Court vide order dated 09.09.2024 has dismissed
such appeal preferred by the State.
3. Mr. N.S. Rajpurohit, learned Additional Advocate General is
not in a position to refute these orders.
4. The order dated 09.09.2024, passed by the Division Bench in
D.B. Special Appeal Writ No.862/2024 reads as follows:-
"This Special Appeal has been preferred to question
the order dated 22.03.2024 passed in S.B. Civil Writ
Petition No.4101/2024.
2. Before the writ Court, a challenge was made to
the order dated 03.07.2023 rejecting the claim of the
writ petitioner to provide her bonus marks as per
actual length of her work experience, without
excluding Sundays and holidays.
3. The writ Court referred to a decision in "Suresh
Choudhary Vs. State of Rajasthan & Ors. (S.B. Civil
Writ Petition No.5694/2021)" and formed an opinion
of rejection of the representation filed by the writ
petitioner was illegal.
4. In Suresh Choudhary, the learned Single Judge
of this Court held as under:-
"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 Holiday etc. can be excluded while
calculating experience for the purpose of
bonus marks?
[2024:RJ-JD:39165] (3 of 6) [CW-18096/2023]
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 observed
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."
5. While deciding S.B. Civil Writ Petition
No.4101/2024, the writ Court also referred to a
decision in "Narendra Barwal v. State of Rajasthan &
Ors. (S.B. Civil Writ Petition No.1669/2022)". The
writ Court having regard to the previous decisions of
this Court held that the work experience on the post
of Lab Technician or Lab Assistant was similar in
nature as long as they perform their duty in the
Laboratory. The writ Court therefore held as under:-
"9. As an upshot, the impugned order
dated 03.07.2023 (Annex.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 her bonus marks as
per entitlement and reassess her
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 her work
experience as well as her claim that she
worked as Lab Technician. In case, it is
found that she was not working as Lab
Technician, she 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."
[2024:RJ-JD:39165] (4 of 6) [CW-18096/2023]
6. Under the General Clauses Act, month has
been defined under clause 35 to section 3 to mean a
month reckoned according to British calendar. This is
well settled that, while computing a month Sundays
and holidays are not excluded.
7. Still, Mr. Mahaveer Bishnoi, the learned
Additional Advocate General submits that there is
different requirement for the post of Lab Technician
and Lab Assistant under Rule 19 of the Rajasthan
Medical and Health Subordinate Services Rules, 1965
which is reproduced herein below:
"19. Scrutiny of application.- (1) The
applications received by the Commission, for
the post falling under the purview of the
Commission, which are found to be
incomplete shall be rejected by them. Before
appearing in the examination, it should be
ensured by the candidate himself/herself
that he/she fulfils the conditions in regard to
age, educational qualifications, experience, if
any, etc. as provided in these rules. Being
allowed to take the examination shall not
entitle the candidate to presumption of
eligibility. The candidates shall have to
appear in the written examination. The
Commission shall scrutinise later on the
applications of such candidates only as
qualify in the written examination.
(2) The Scheme and Syllabus of
written examination shall be such as may be
decided by the Commission, from time to
time.
(3) The applications received by the
Board or the Appointing Authority, as the
case may be, for the posts not falling under
the purview of the Commission, which are
found to be incomplete shall be rejected by
it. Before appearing in the examination, it
should be ensured by the candidate himself/
herself that he/she fulfills the conditions in
regard to age, educational qualifications,
experience, if any, etc. as provided in these
rules. Being allowed to take the examination
shall not entitle the candidate to
presumption of eligibility. The candidates
shall have to appear in the written
examination. The Board or the Appointing
Authority, as the case may be shall
scrutinize later on the applications of such
candidates only as qualify in the written
examination:
Provided that in case of appointment
to the post of Pharmacist, the written
[2024:RJ-JD:39165] (5 of 6) [CW-18096/2023]
examination shall be conducted by the
Board/Appointing Authority and the merit
shall be prepared on the basis of marks
obtained in such written examination and
such bonus marks as may be specified by
the State Government having regard to the
length of experience on similar work under
the Government of Rajasthan in Chief
Minister BPL Jeevan Raksha Kosh, National
Health Mission, Medicare Relief Society,
AIDS Control Society, Sahakari Upbhokta
Wholesale Bhandar, Sahakari Upbhokta
Bhandar and other Co-operative Institutes
under the Co-operative department.
However, as one time measure, after
commencement of the Rajasthan Medical &
Health Subordinate Service (II Amendment)
Rules, 2022, the recruitment to the post of
Pharmacist shall be done by preparing merit
list on the basis of marks obtained by the
applicant in such qualifying academic and
professional examinations as specified in the
schedule appended to these rules and such
bonus marks as may be specified by State
Government having regard to the length of
experience on similar work under the
Government of Rajasthan in Chief Minister
BPL Jeevan Raksha Kosh, National Health
Mission, Medicare Relief Society, AIDS
Control Society, Sahakari Upbhokta
Wholesale Bhandar, Sahakari Upbhokta
Bhandar and other Co-operative Institutes
under the Co-operative department.
Provided further that in case of
appointment to the posts other than
Pharmacist, which are not in the purview of
the Commission, merit shall be prepared by
the Appointing Authority on the basis of
marks obtained in such qualifying academic
examination or professional examination or
both as specified in the schedule appended
to these rules and such bonus marks as may
be specified by the State Government having
regard to the length of experience on similar
work under the Government, National Rural
Health Mission, Medi Care Relief Society,
Chief Minister BPL Jeevan Raksha Kosh,
AIDS Control Society, Revised National
Tuberculosis Control Programme (RNTCP),
Jhalawar Hospital and Medical College
Society, Integrated Disease Surveillance
Project or State Institute for Health and
Family Welfare.
Provided also that the decision of the
Commission/Board or Appointing Authority,
[2024:RJ-JD:39165] (6 of 6) [CW-18096/2023]
as the case may be, regarding the eligibility
or otherwise of a candidate shall be final."
8. There is no denial by the respondent that under
the Rules of 1965 the qualification for the post of Lab
Assistant is (i) Senior Secondary with Science or its
equivalent and (ii) any Diploma in Medical Laboratory
Technology from an institute recognized by the State
Government. The respondent pleaded that after the
commencement of the Rajasthan Medical & Health
Subordinate Service (Amendment) Rules, 2018, the
persons having 3 years experience of working as
Laboratory Assistant/Laboratory Technician in the
State Government hospitals are also eligible; the
respondent was working on contractual basis as
Laboratory Technician. We accord our concurrence to
the view expressed by the writ Court to the extent
that Lab Technician or Lab Assistant as long as they
work in the Laboratory, the experience obtained by
them must be counted.
9. In that view of the matter, we are not inclined
to entertain this Special Appeal which is accordingly
dismissed."
5. In view of the aforesaid, the present writ petition is disposed
of in terms as in the case of Suresh Choudhary (supra) and
Narendra Barwal (cited supra) which is confirmed in D.B. Special
Appeal Writ No.862/2024.
(MUNNURI LAXMAN),J
344-Ramesh/-
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