Shiv Shankar Upadhyay vs State Of Rajasthan (2025:Rj-Jd:12083)
2025 Latest Caselaw 8178 Raj

Rajasthan High Court - Jodhpur

Shiv Shankar Upadhyay vs State Of Rajasthan (2025:Rj-Jd:12083) on 4 March, 2025

[2025:RJ-JD:12083]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 16959/2023
Shiv Shankar Upadhyay S/o Shri Chhotu Ram Upadhyay, Aged
About 47 Years, Resident Of Durga Mandir, Khajuwala, District
Bikaner, Rajasthan.
                                                                           ----Petitioner
                                          Versus
1.       State       Of   Rajasthan,         Through        The       Secretary,   Rural
         Development               And       Panchayati           Raj      Department,
         Government Of Rajasthan, Secretariat, Jaipur (Raj.)
2.       Chief Executive Officer, Zila Parishad Bikaner, District
         Bikaner, Rajasthan.
                                                                        ----Respondents


For Petitioner(s)              :     Mr. JS Bhaleria.
For Respondent(s)              :     Mr. Kuldeep Vaishnav.


         HON'BLE MR. JUSTICE ARUN MONGA

Order (Oral) 04/03/2025

1. The petitioner herein, inter alia, seeks issuance of an

appropriate writ, order, and/or direction commanding the

respondents to issue him a fresh experience certificate from

13.04.2010 to 18.04.2013, taking into account the circular

(Annex.-11), according him the benefit of 30 bonus marks and for

appointment to the post of Lower Division Clerk (LDC) based on

his merit.

2. Briefly speaking, relevant facts as pleaded in the petition are

that the respondents issued an advertisement on 14.02.2013 for

direct recruitment to the post of Lower Division Clerk (LDC) under

the Rules of 1996, with district-wise vacancies. The selection

criteria allocated 70% weightage to Senior Secondary Examination

marks and bonus marks based on experience: 10 marks (1-2

years), 20 marks (2-3 years), and 30 marks (3+ years). The

[2025:RJ-JD:12083] (2 of 5) [CW-16959/2023]

petitioner sought an Experience Certificate, but the certificate

issued on 18.03.2013 incorrectly excluded his leave period of 39

days, which affected his eligibility for the grant of higher bonus

marks.

2.1. Following multiple legal disputes, the challenge to the

selection process reached the Apex Court. An SLP was decided on

29.11.2016, pursuant to which, the respondents resumed

recruitment on 18.01.2017 to fill-up LDC vacancies. Some

appointments were made, but further litigation led to a directive

from this Court on 07.09.2022, instructing the filling of remaining

vacancies.

2.2. The petitioner was appointed on the post of Data Entry

Operator on 13.04.2010 and was eligible for an Experience

Certificate for the period up to 18.04.2013. However, the

respondents incorrectly deducted 39 days, citing 'leave without

pay' without jurisdiction.

2.3. The petitioner secured 66.092% marks for academics, and if

the aforementioned 39 days had been included in his Experience

Certificate, he would have received 30 additional bonus marks,

which would have resulted in his selection and appointment as an

LDC.

2.4. The petitioner filed the writ petition and the same was

decided on 02.12.2022, directing the respondents to count the

petitioner's full service period for the Experience Certificate.

2.5. Due to non-compliance of Court's order, petitioner filed

Contempt Petition No. 54/2023. The Court summoned respondent

No.2 on 03.07.2023, but the contempt proceedings remain

pending. Petitioner subsequently filed an additional affidavit in the

[2025:RJ-JD:12083] (3 of 5) [CW-16959/2023]

contempt petition, asserting that the newly issued Experience

Certificate was incorrect and issued with malafide intent.

2.6. The Experience Certificate issued after Court's order was

incorrect and violated this Court's judgment as well as the circular

dated 23.02.2022, which mandated counting the 2012 strike

period as service. Hence the instant petition.

3. In the aforesaid backdrop, I have heard the rival contentions

and gone through the case record.

4. The only reason that seems to have been an impediment in

the way of the petitioner in getting the benefit of his past work

experience is the deduction from his Experience Certificate of the

number of days of leave he had taken (during the strike period in

year 2012) without pay, which resulted in his not making the cut

at par with those who had longer work experience taken.

5. The deduction of the leave period without pay was the

subject matter of adjudication in S.B. Civil Contempt Petition

No. 528/2013, titled Manakram & Ors. Vs. C.S. Rajan & Ors.,

decided on 17.04.2015, wherein the Single Bench dealing with

the matter observed/held as under:-

"A look at the experience certificates filed as Annex.-3 with the contempt petition reveals that the respondents have deducted the 'period of leave without pay' from the period of experience. The notification dated 23.2.2012 issued by the respondents dealing with the period of absence provided for adjustment of leave towards period of absence towards available casual leave and grant of leave without pay for the rest of the period.

This Court in the case of Smt. Vishnu Kanwar (supra) has categorically laid down that if the leave is sanctioned one, then during that period too the relationship of master and servant is maintained and the period of availing sanctioned leave, thus, cannot be excluded from the term of continuous service.

In view thereof, the exclusion of period by the respondents from grant of experience certificates appears to be contrary to the law laid down by this Court.

[2025:RJ-JD:12083] (4 of 5) [CW-16959/2023]

Reliance placed by the respondents on the circular dated 26.12.2012 providing for non-consideration of period of absence for the purpose of experience, reads as under:-

"8- lafonk dkfeZdksa dks vuqer vkdfLed vodk"k ds vykok vuqifLFkfr vof/k dks vuqHko dh vof/k esa "kkfey ugha fd;k tkosA"

The said instruction deals with 'period of absence' and not with a 'period of sanctioned leave' and therefore, the said circular also has no application to the present case.

In view of the discussion here-in-above, it is apparent that the certificates (Annex.3) issued by the respondents are not in accord with the direction dated 3.5.2013 and the law laid down by this Court."

6. The above view taken in Manakram, ibid was subsequently

followed by coordinate Bench of this Court in Tarun Songara Vs.

State of Rajasthan : S.B. Civil Writ Petition No.

15127/2022. An intra-Court appeal bearing D.B. Special

Appeal Writ No. 634/2024 : The State of Rajasthan & Anr.

Vs. Tarun Songara filed against the judgment/order passed in

Tarun Songara, ibid was dismissed. Thus, the judgment/order

passed in Tarun Songara has attained finality, and I see no

reason why the benefit of the same be not given to the petitioner

herein.

7. Accordingly, the respondents are directed to consider the

candidature of the petitioner afresh by counting the number of

days of leave taken by him without pay, in terms of the judgment

ibid, and after including the leave period as part of his work

experience, he be given the benefit thereof. In case he is found

meritorious thereafter, apart from being otherwise eligible in all

aspects, appropriate steps shall be taken to issue him an

appointment letter for the post in question, subject, of course, to

the availability of vacancy as on today, qua the same

advertisement pursuant to which his counterparts competed.

[2025:RJ-JD:12083] (5 of 5) [CW-16959/2023]

8. Necessary exercise shall be carried out within a period of 30

days from the date the petitioner approaches the respondents

with a web print of the instant order.

9. Needless to say, petitioner shall be accorded seniority and

notional benefits with effect from the same date when his

counterparts were appointed. However, he shall not entitled to any

financial benefits, on the principle of "no work, no pay."

10. Disposed of accordingly.

11. Pending application(s), if any, stand disposed of.

                                                                                                          (ARUN MONGA),J
                                    111-/Jitender/Sumit

                                    Whether fit for reporting :        Yes     /       No.









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