Rajasthan High Court - Jaipur
Omveer vs State (Panchayati Raj Dep )Ors on 10 July, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.7753/2013 (Omveer Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.7206/2013 (Rajesh Kumar Bairagi Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.6386/2013 (Vijay Berman Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.6600/2013 (Satyanarain Meena Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.6813/2013 (Kamlesh Kumar Mewara Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.6648/2013 (Ravindra Pal Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6338/2013 (Satyendra Singh & Ors. Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6999/2013 (Mahesh Chand Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6517/2013 (Mangu Singh Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6647/2013 (Rakesh Kumar Gurjar Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6603/2013 (Subhash Chand Jatav Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6116/2013 (Piroji Khan Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6651/2013 (Akshya Kumar & Anr. Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6655/2013 (Dilip Kumar Maurya Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.7294/2013 (Neeraj Singh Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.7450/2013 (Mukesh Chand Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.7460/2013 (Mukesh Kumar Meena Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.3969/2013 (Manoj Kumar Sharma & Ors. Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.3970/2013 (Pappu Lal Jat & Ors. Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.4362/2013 (Maharaj Singh & Anr. Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.4390/2013 (Om Prakash Singh Faujdar Vs. State of Raj.& Anr.) AND S.B. CIVIL WRIT PETITION NO.5096/2013 (Rambharosi Parmar Vs. State of Raj.& Anr.) AND S.B. CIVIL WRIT PETITION NO.5260/2013 (Keshav Kumar Sharma Vs. State of Raj.) AND S.B. CIVIL WRIT PETITION NO.5654/2013 (Satyanarayan Yadav Vs District Collector & Ors.) AND S.B. CIVIL WRIT PETITION NO.5819/2013 (Govind Singh Vs.The Addl.Chief Secretory & Ors.) AND S.B. CIVIL WRIT PETITION NO.5991/2013 (Sumat Chand Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.5994/2013 (Ram Sahai Meena Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6079/2013 (Mahendra Kumar & Ors. Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6080/2013 (Alok Kumar Goyal Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6092/2013 (Mahendra Kumar Gurjar Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6208/2013 (Rajesh Kumar & Ors Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6304/2013 (Bheem Singh Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6260/2013 (Jitendra Sharma & Anr. Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6405/2013 (Ramdev Mali Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6509/2013 (Deepak Kumar Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6516/2013 (Madan Lal Gurjar Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6593/2013 (Mukesh Kumar Sharma Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.7490/2013 (Vijay Pal Singh Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.7783/2013 (Dev Dutt Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.7799/2013 (Maheep Kumar Sharma Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.6511/2013 (Phool Singh Jat Vs. State of Raj.& Ors.) S.B. CIVIL WRIT PETITION NO.7277/2013 (Arjun Lal BajiyaVs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.8087/2013 (Deepika Nawar Vs. State of Raj.& Ors.) AND S.B. CIVIL WRIT PETITION NO.7249/2013 (Kumwar Pal Singh Vs. State of Raj.& Ors.) Date of Order : 10th July, 2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.N.K.Singhal ] Mr.Ashok Yadav ] Mr.Tanveer Ahmed ] Mr.Sanjay Sharma ] Mr.Hanuman Choudhary ] Mr.Sanjay Mehla ] Mr.R.D.Meena ] Mr.A.R.Meena ] Mr.Ashish Jain ] Mr.Sunil Kumar Singodiya ] Mr.Raj Kumar Goyal ] Mr.Chain Singh Rathore ] Mr.Raj Kumar Kasana ] Mr.Neeraj Sharma ] Mr.Babu Lal Sharma ] Mr.Sandeep Saxena ] Mr.Dinesh Kumar Garg ] Mr.G.L.Sharma ] Mr.Manoj Bhardwaj ] Mr.Amit Singh Shekhawat ] Mr.K.N.Sharma ] Mr.Vikas Kabra ] Mr.Samay Singh ] Mr.Raj Kumar Sharma ] Dr.Y.C.Sharma ] Mr.Gajendra Sharma ], for the petitioner/s. Mr.S.N.Kumwat, Additional Advocate General. BY THE COURT:
These writ petitions pertains to selection to various posts for which advertisement has been issued by the respondents. Since common question of law is involved, thus all these writ petitions are decided by this common judgment.
The grievance of the petitioners is for denial of bonus marks towards experience or for non-issuance of experience certified.
Learned counsel for the petitioners submits that respondents State Government took a decision to provide bonus marks towards experience in the selection to the post so advertised by them. The Schemes and posts for which benefit of experience can be given are named therein. Ignoring the aforesaid, the respondents are denying benefit of bonus marks or the certificate of experience, despite entitlement. For illustration, certain petitioners were terminated from service, however, orders of termination have been set aside by the High Court yet they are denied benefit of experience of service rendered by them. Same way, the respondents came out with the Circular on 03.03.2013. It is to clarify those cases where recovery was effected due to preparation of job card for the period of more than 100 days in MNREGA. It was due to feeding in MIS prior to muster roll feeding, accordingly it was decided not to withheld experience certificate, if the amount has been deposited by the employee. There are even cases, where recovery has been effected or adverse orders were issued without an opportunity of hearing to the petitioners.
Learned counsel further contended that denial of experience certificate is even in those cases where criminal case is pending against the petitioners. In few cases, even adverse Final Report has already been given and aforesaid is not rejected by the Magistrate even after passing of reasonable time after submission of FR. In few cases, even investigation is pending. The denial of experience certificate for pending criminal case is nothing but prejudging the issue adverse to the petitioners.
In the same manner, experience certificate is denied even to those, who left or resigned from service. In fact, resignation from service does not wash away experience gained prior to resignation, thus respondents be directed to issue experience certificate or if it has been issued, then to grant benefit of bonus marks towards experience.
Learned counsel for the respondents, on the other hand submits that experience certificate has been issued in favour of all candidates, who were entitled for it. In few cases, if the experience certificate has not been issued despite their entitlement, it would be issued immediately on issuance of necessary directions by this Court. It may be in the cases where earlier termination order was set aside with the benefit of continuity or if case is covered by the Circular dated 03.03.2013. In those cases, where order of recovery is effected due to shortcomings without opportunity of hearing, for reasons other than covered by the Circular dated 03.03.2013, petitioners would be given opportunity of hearing and if justification is not found for recovery, experience certificate would be endorsed in their favour excluding those where justification is found for recovery. Therein, a speaking order would be passed. The experience certificate would be issued where after enquiry, any of the petitioners is found innocent. It is further contended that if any petitioner is facing criminal case then experience certificate would not be issued at this stage. The bonus marks towards experience is to be permitted to those, have not faced allegation during their service. In other words, whose record is unblemished. In few cases, if negative FR has been given by the police and matter is pending before the Court or if, the candidate has not worked on a particular post or department/project mentioned in the Rules, then it may be made clear that experience certificate so as the bonus marks would not be admissible to them.
I have considered rival submissions made by learned counsel for the parties and perused the record.
In this bunch of writ petitions, common controversy is regarding denial of bonus marks towards experience or non issuance of experience certificate. It is in the circumstance that for various posts for which selection is conducted by the respondents, ten bonus marks for each year's working is provided with the ceiling of thirty marks. Since the petitioners are denied either experience certificate or the bonus marks, they would be effected in preparation of merit list. Manifold issues have been raised for denial of experience certificate, however, in few cases, respondents have no objection to issue bonus marks, however, dispute is raised in few other cases.
To summarize the aforesaid, the dispute is not raised for issuance of experience certificate so as the bonus marks to those, who were earlier terminated from service but then their termination orders were set aside by this Court with continuity of service and same is the position for those, who are covered by the Circular dated 03.03.2013. The dispute remains for those candidates against whom recovery has been effected by the respondents without opportunity of hearing and even for those, against whom criminal case is pending.
In my opinion, if recovery has been effected without opportunity of hearing then denial of experience certificate can be justified only when a candidate is given opportunity of hearing and thereupon any recovery is found admissible. A direction could have been given by this Court to allow experience certificate in view of violation of principles of natural justice but it would be giving premium to those, who may really involve in corruption and recovery as a consequence of it. To do the complete justice, it would be appropriate for such petitioners against whom recovery is pending or effected, be given opportunity of hearing within time and after the aforesaid, if recovery is not found to be justified, to issue experience certificate and in other cases to pass speaking order for denial. In the similar way, where criminal cases is pending for misdoing of candidate while in service, unconditional direction cannot be given for issuance of experience certificate so as the bonus marks but there may be cases where petitioners may be innocent as in few cases, negative FR has been given and is pending before the Magistrate for considerable time. There are cases where negative FR has been accepted, thus denial of experience certificate or bonus marks is totally unjustified.
In other cases, where investigation is pending so as the criminal case on filing of charge sheet or framing the charges, direction to issue experience certificate would again be nothing but in ignorance of the delinquency of the employee, though learned counsel for the petitioners are justified to state that aforesaid cannot be prejudged but to balance the equities, it would be appropriate to give same direction/s so that innocent persons may not be deprived to get benefit of experience certificate so as the bonus marks.
Accordingly and after summarizing all the facts and issues raised herein, I dispose of all these writ petitions with the following direction:
(i)the respondents will issue experience certificate to those, who were earlier terminated but their termination order was set aside by this Court. If a direction for continuity of service is given then experience certificate would obviously be after counting intervening period.
(ii)Those cases, where Circular dated 03.03.2013 apply, would not only be considered but if any of the petitioners is found covered by the said circular, experience certificate may be given accordingly. It is also in those cases where recovery is effected on account of issue of job card for more than 100 days and recovery is not found proper and justified as per the reasons given in para No. (1) of the aforesaid circular.
(iii)In those cases where recovery is effected or adverse orders are issued without an opportunity of hearing to the petitioner with consequential denial of experience certificate, respondents will cause notice to those petitioners to provide opportunity of hearing. After the hearing, if justification is not found for recovery, then such of the petitioners would also be given experience certificate. In case the respondents find justification for recovery, an speaking order would be passed. In that eventuality, the petitioners would be at liberty to take proper legal recourse for it and in case they ultimately remain successful, would be entitled to the consequential benefits, which may include even experience certificate.
(iv)The exercise for hearing may be undertaken at the earliest and if possible, then within a period of ten days from the date of receipt of copy of this order and process may be completed by another period of 15 days so that any person exonerated or found innocent should get experience certificate at the earliest. It is clarified that in case any of the petitioners is found entitled to the experience certificate, his merit should be determined with the addition of bonus marks, if appointments are made in between, rather it should be made clear while issuing the appointment order that it would be subject to compliance of the direction hereinabove.
(v)In those cases where after enquiry, the petitioners are found innocent then the respondents are directed to immediately issue experience certificate to those petitioners and in that case also, their marks would be determined taking into consideration experience certificate so issued and if, they find place in the merit, would be given appointment. This will include even those cases where enquiry is dropped.
(vi)In those cases where recovery has been effected from the petitioners, the respondents are directed to look into the matter in reference to the Circular dated 03.03.2013. If the recovery is not pursuant to serious charges, then the respondents would be expected to take a proper view for issuance of experience certificate with consequential benefit as indicated in the preceding paras. The exercise in reference to those petitioners may also be undertaken at the earliest and, if possible, within a period of 15 days from the date of receipt of copy of this order.
(vii)In those cases where criminal case has been registered against the petitioners in reference to their working with the respondents and FR has been given but not accepted despite of expiry of reasonable period, the respondents would issue experience certificate to such of the petitioners. However, it will exclude those cases where FR has not been accepted by the Magistrate and cognizance has been taken.
(viii)In other cases where investigation is yet pending, the respondents will look into final result of the investigation. If it results in FR then they are directed to make scrutiny of the case of such of the petitioners and if allegations are not serious and proper investigation is conducted then to issue experience certificate.
(ix)In those cases where criminal case has proceeded further then petitioner/s would not be entitled for the experience certificate unless they are discharged or acquitted in the criminal case. It is, however, clarified that in case of discharge or acquittal, they would not only be entitled to the consequential benefit but the benefit of experience and addition of marks for reassessment of their merit and fall in the main merit, the consequential benefit of appointment be given.
(x)In those cases where petitioners left or resigned from service voluntary, he/they would be entitled to the experience certificate for the period of service with consequential benefit.
(xi)The directions aforesaid would be subject to eligibility in accordance to the rules. It would also be subject to working in the Department/Project and on the post mentioned in the rules. Thus, petitioners who were not appointed under the Panchayati Raj Department or its any of the projects mentioned in the rules but were appointed by other department and working under Panchayati Raj Department would not be entitled for the experience certificate for their working. The working of such of the petitioners under Panchayati Raj Department was for the purpose and to give effect to constitutional amendment where certain work were brought under the Panchayati Raj Department, otherwise such of the petitioners were appointed by different departments or under different schemes then mentioned in the rules. It is, however, clarified that those who were appointed in any of the schemes mentioned in the rules or department, would be entitled for experience certificate subject to direction given above and as per condition of the rules.
(xii)This will include even those who were appointed under the contract of MNREGA.
With the aforesaid, all the writ petitions are disposed of so as the stay applications.
(M.N. BHANDARI), J.
Preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.