Rajasthan High Court - Jodhpur
Swaroop Singh vs State And Ors on 19 November, 2020
Bench: Sangeet Lodha, Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 569/2018
Swaroop Singh, Son of Shri Bajrang Singh, By Caste Rajput,
Resident of 128, Teachers Colony, Opposite Chopasani School,
Jodhpur.
----Appellant
Versus
1. The State of Rajasthan, Through The Director Cum
Special Secretary, Local Self Department, Government of
Rajasthan, Jaipur.
2. Jodhpur Nagar Nigam, Jodhpur Through Its
Commissioner.
3. Sameer Sharma, Son of Shri R.b. Sharma, Fireman, Kota
Nagar Nigam, Kota.
4. Mahendra Kumar, Son of Shri Ruda Ram, Fireman, Jaipur
Nagar Nigam, Jaipur.
5. Ashok Kumar Son of Shri Lala Ram, Fireman, Municipal
Board, Behror, District Alwar.
----Respondents
For Appellant(s) : Mr. Anil Bhandari
For Respondent(s) : Mr. Sunil Beniwal, AAG with Mr.
Utkarsh Singh
Dr. Pratistha Dave
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA Judgment 19th November, 2020 Per Hon'ble Mr. Sangeet Lodha,J.
1. This intra court appeal is directed against order dated 4.1.18 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant assailing the action of the (Downloaded on 19/11/2020 at 08:42:05 PM) (2 of 11) [SAW-569/2018] respondents in denying award of bonus marks for appointment to the post of Fireman pursuant to the advertisement dated 8.9.11 issued by the Department of Local Self, Government of Rajasthan, has been dismissed.
2. The Department of Local Self, Government of Rajasthan issued an advertisement dated 8.9.11 inviting application from eligible candidates for recruitment to the 13 posts of Assistant Fire Officer and 513 posts of Fireman in various municipal bodies of the State. The appellant holding the requisite qualification for recruitment to the post of Fireman applied for the same.
3. In the advertisement issued, it was specifically mentioned that the candidates who have experience of fire services in any Government Organisation/Body may be given preference. As per the norms laid down for selection, allocation of the marks was made as under:
Qk;jeSu dh HkrhZ esa p;u izfdz;k fuEukuqlkj r; dh xbZ Fkh%& dz- la- fooj.k vad 1 10oha mRrh.kZ ds izkIrkadksa ds vk/kkj ij 10 2 dsUnz@fdlh jkT; ljdkj vFkok fof/k }kjk 30 LFkkfir fo"ofo/kky; }kjk ekU;rk izkIr laLFkku (Recognized Institute) ls yxkrkj 6 ekg dh vof/k ds fy, vk;ksftr csfld ,yhesaVªh Qk;jeSu Vsªfuax dkslZ mRrh.kZ dks vf/kdre vad 3 dsUnz@fdlh jkT; ljdkj vFkok fof/k :i ls 05 LFkkfir fo"ofo/kky; }kjk ekU;rk izkIr laLFkku (Recognized Institute) ls yxkrkj 12 ekg dh vof/k ds fy, vk;ksftr csfld ,yhesaVªh Qk;jeSu Vsªfuax dkslZ mRrh.kZ dks vf/kdre cksul vad 4 fdlh ljdkjh laxBu@fudk; ls izkIr vuqHko 10 ,oa larks'kizn lsok ds izek.k i= ds vk/kkj ij izR;sd o'kZ ds nks vad vf/kdre vad 5 jktLFkku dk ewy fuoklh gksus ij ;k jkTLFkku 10 ds "kS{kf.kd laLFkku ls mRrh.kZ ¼vgZrk½ vad 6 VsªM@izsfDVdy VsLV ds vad 35 dqy ;ksx 100 (Downloaded on 19/11/2020 at 08:42:05 PM) (3 of 11) [SAW-569/2018]
4. The appellant secured 59.618 marks, however, his name was not included in the select list. On the information being sought by one Shri Vikram Singh under the Right to Information Act, it was disclosed by the respondents that the cut off marks for General Category (Male) was 60.75. The appellant had produced the certificate of experience of working as Fireman from October, 2000 to November, 2003 and thereafter, from December, 2003 as Fire Supervisor, in the Natural Gas Processing Plant of Oil India Limited, however, no marks were awarded to him towards the experience. In these circumstances, aggrieved by the action of the respondents in denying the bonus marks, the appellant preferred Writ Petition No.5225/15, which was disposed of by the learned Single Judge of this Court vide order dated 28.8.15 with the directions that if the appellant makes the representation within one month of the date of the order, the respondent shall decide the same within a period of one month thereafter. Pursuant to the directions issued as aforesaid, the appellant made representation, however, the same was not decided as directed. Alleging disobedience of the order passed by this Court, the appellant filed a contempt petition being S.B.Civil Contempt Petition No.304/16.
5. During the pendency of the contempt petition, the respondents decided the representation vide order dated 10.5.16. The representation was rejected solely on the ground that the appellant is not entitled for bonus marks towards experience inasmuch as, the experience certificate produced by him is issued by a private company, which was not in conformity with the condition incorporated in this regard in the advertisement issued by the Recruitment Board.
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6. The appellant was employed in Oil India Limited through Spectron Engineers Limited and therefore, he had produced the certificate issued by the said company but the appellant had experience of working on the post of Fireman and Fire Supervisor in the Oil India for the period more than five years. According to the appellant he was entitled for award of 10 marks for experience and thus, was entitled to be selected and appointed on the post of Fireman in the category of General (Male).
7. In these circumstances, aggrieved by the action of the respondents in rejecting the representation and denying the bonus marks, the appellant preferred yet another writ petition before this Court, which stands dismissed by the learned Single Judge by the order impugned.
8. The learned Single Judge has dismissed the writ petition observing that on the basis of the material on record, it is apparent that the appellant was not discharging any duty for the Oil India Limited, but was in fact, a part of the man power engaged by Spectron Engineers Private Limited for discharging its contractual obligation in respect of the operation and maintenance at a particular site of Dandewala-GPC, Tanot-CGS and TVC.
9. Learned counsel appearing for the appellant contended that the learned Single Judge has seriously erred in dismissing the writ petition on the ground that the appellant was engaged through a private company and he was never in the employment of Oil India Limited whereas, the appellant had submitted document (Annexure 5) dated 25.4.06 issued by the OFS Industries Private Limited certifying that the appellant was employed as Fireman from October, 2000 to November,2003 and Fire Supervisor from (Downloaded on 19/11/2020 at 08:42:05 PM) (5 of 11) [SAW-569/2018] December, 2003 in Natural Gas Processing Plant of Oil India Limited, Dandewala in Western Rajasthan.
10. Drawing the attention of this Court to the order dated 10.5.16 passed by the Director-cum-Special Secretary, Local Self Department, learned counsel submitted that the appellant was not awarded the bonus marks towards the experience solely on the ground that the certificate for experience produced by him was issued by a private company and not on the ground that the appellant was not engaged with Oil India Limited, a Government of India undertaking and therefore, the legality of the order was required to be examined on the basis of the reasons assigned therein and the respondents could not have been permitted to support their decision by giving fresh reasons by way of reply to the petition and thus, the order under appeal passed by the learned Single Judge deserves to be set aside on this count alone.
11. Learned counsel submitted that the respondent no.3-Sameer Sharma, who stands at serial no.3 in the merit list has been awarded 10 marks for experience notwithstanding that he was engaged in the Municipal Corporation through Indian Ex- Serviceman Welfare Cooperative Society Limited, however, he was awarded bonus marks for the experience. Similarly, respondent- Mahendra Kumar who belongs to OBC category, selected in the General Category at serial no.106 in the merit list, was awarded 3 marks for experience, was also engaged through Super Ex- Serviceman Welfare Cooperative Society, Jaipur. Further, Mahendra Kumar was interviewed for the recruitment to the post on 9.3.13 whereas, he has acquired diploma in Fire Engineering on 2.4.13 yet, he has been awarded 30 marks for qualification of diploma. The respondent no.5-Ashok Kumar s/o Lalaram, selected in (Downloaded on 19/11/2020 at 08:42:05 PM) (6 of 11) [SAW-569/2018] General Category was awarded 2 marks against experience of Fireman while working with Maruti Suzuki India Limited through Agni Industrial Fire Services Private Limited, which are private companies and thus, the action of the respondents in denying bonus marks to the appellant is ex facie illegal, arbitrary and discriminatory. Learned counsel submitted that the experience certificate issued by the OFS Industries and Spectron Engineers Private Limited clearly indicates that the appellant was deployed to discharge the duties of Fireman/Fire Supervisor in the Natural Gas Processing Plant of Oil India Limited, Dandewala and thus, while keeping parity qua other candidates, who have been awarded bonus marks on the basis of similar certificates, the appellant was also entitled to be awarded bonus marks towards the experience. Learned counsel submitted that if the 10 bonus marks are awarded to the appellant for 5 years experience, he is bound to be selected for appointment to the post of Fireman. Learned counsel submitted that since the appellant has been denied appointment by the respondents wrongfully, he is entitled to be appointed on the post of Fireman with effect from the date the person lower in merit than him has been accorded appointment pursuant to the selection process in question.
12. On the other hand, learned AAG appearing for the State submitted that the experience certificate issued by the private agency produced by the appellant has rightly not been taken into consideration for award of bonus marks towards experience. As per the advertisement issued, the bonus marks are to be awarded only in respect of the services rendered by the candidate in Government Organisation/Body and thus, the appellant who was employed in a private company cannot be awarded bonus marks (Downloaded on 19/11/2020 at 08:42:05 PM) (7 of 11) [SAW-569/2018] on the ground that he was deployed in a Government company under the contractual obligation. Learned AAG submitted that unless it is established that the appellant was engaged by a Government Organisation/Body and his performance was satisfactory, he is not entitled for award of any bonus marks.
13. It is pertinent to note that vide order dated 10.5.19 passed by this Court, the respondents were directed to produce complete record of bonus marks awarded to the candidates for experience of fire service. The record was produced by the respondents for perusal of the Court and thereafter, an additional affidavit has been filed whereby the experience certificates of 20 candidates who were awarded bonus marks towards the experience are placed on record. That apart, the merit list of the candidates who applied for the post of Fireman is also produced on record. On being asked by the Court as to why the appellant has been denied award of bonus marks when similarly situated persons have been extended benefit of the bonus marks on the basis of the certificate issued by the private agency, learned AAG had no answer.
14. Dr. Pratistha Sinha, learned counsel appearing for the Municipal Corporation, Jodhpur has adopted the arguments advanced by the learned AAG on behalf of the State.
15. We have considered the rival submissions and perused the material on record.
16. Indisputably, as per the advertisement issued, the candidates were entitled for 2 bonus marks for each year of experience acquired on the basis of the satisfactory services rendered with the Government Organisation/Body with the maximum 10 marks. The nature of deployment with the (Downloaded on 19/11/2020 at 08:42:05 PM) (8 of 11) [SAW-569/2018] Government Organisation/Body was not decisive for award of the bonus mark in terms of the condition incorporated.
17. Undoubtedly, as per the certificate (Annexure 5) produced by the appellant, he was deployed as Fireman from October, 2000 to November, 2003 and as a Fire Supervisor from December, 2003 till April, 2006 through OFS Industries Private Limited in Natural Gas Processing Plant of Oil India Limited. Thereafter, he was deployed in the said establishment to work as Fire and Safety Supervisor from 1st May, 2006 to 27th September, 2007 through Spectron Engineers Private Limited.
18. It is noticed that while the appellant has been denied benefit of bonus marks for possessing the experience of working on the post of Fireman and Fire Supervisor, other candidates similarly situated who had also produced the certificates issued by private agency were awarded bonus marks.
19. A perusal of the certificates of other candidates who have been awarded bonus marks for experience, produced by the respondent alongwith the additional affidavit, reveals that some of the candidates who were engaged in various Municipalities as Fireman on contract basis through the service provider have been extended benefits of bonus marks. One Shri Jeet Ram Parihar, engaged by M/s. Ritu Engineering Works and M/s. Mishra Engineering Works and was deployed to discharge the duties of Fireman at Suratgarh Super Thermal Power Station, Suratgarh, has also been awarded bonus marks whereas, in the certificate issued, it is categorically mentioned that he was working with the said service provider. He had produced the certificates issued by the service provider and not by the Suratgarh Super Thermal Power Station. Mr. Ajay Pal Singh, who was employed as Fireman (Downloaded on 19/11/2020 at 08:42:05 PM) (9 of 11) [SAW-569/2018] on contract basis in Sanik Kalyan Samiti, Sri Ganganagar and was deployed in Municipal Board, Srikaranpur, has also been awarded bonus marks. Mr. Hitendra Singh Dabi was never employed in the Municipal Corporation, Jaipur, has been awarded bonus marks on the basis of certificate issued by the Chief Fire Officer, Municipal Corporation, Jaipur, which was issued on the basis of the documents alleged to have been produced by the candidate showing that he was working with the Oil and Natural Gas Commission, Indian Oil Corporation Limited and Gas Authority of India Limited, joint undertaking of Petronet LNG Limited. Suffice it to say that what to say about the certificate issued by the Government Organisation/Body or the service provider, he was awarded bonus marks on the basis of a certificate issued by an agency not in any manner related to his deployment in the said Organisation. Strangely enough, the candidates Shri Sameer Sharma and six others in whose favour a composite certificate of experience was issued by the Municipal Corporation, Jaipur have also been extended benefit of bonus marks whereas, in the certificate issued by the Chief Executive Officer, Municipal Corporation, Jaipur, it is nowhere mentioned that these persons were actually engaged in the Municipal Corporation, Jaipur on the post of Fireman rather, it is certified that those candidates have experience of fire services while working with Government Organisations/Bodies. Apparently, the Chief Executive Officer, Municipal Corporation, Jaipur had no authority to issue the certificate in the terms indicated above unless, the candidates whose names are mentioned in the certificate issued were actually employed in Municipal Corporation, Jaipur. It is not disputed before us that out of the 7 candidates whose names are (Downloaded on 19/11/2020 at 08:42:05 PM) (10 of 11) [SAW-569/2018] mentioned in the certificate issued by the Municipal Corporation, Jaipur as aforesaid, 3 candidates who were awarded bonus marks have been selected and accorded appointment. Thus, apparently, it is a case of conscious discrimination inasmuch as, while the appellant has been denied bonus marks on the ground that he has produced the certificate of experience issued by a private agency, the similarly situated candidates have been awarded bonus marks on the strength of not only the certificate issued by the private agency rather on the basis of the certificates issued by an agency not remotely connected with the candidates deployment with the Government Organisation/Body through a private service provider. Thus, the action of the respondents in adopting the practice of pick and choose in awarding the bonus marks on the basis of the certificates issued by the private agency falls foul of Article 14 & 16 of the Constitution of India.
20. For the aforementioned reasons, the order impugned passed by the learned Single Judge as also the order dated 10.5.16 passed by the Director-cum-Special Secretary, Department of Local Self, Government of Rajasthan, rejecting the representation of the appellant deserve to be set aside. The appellant is entitled for bonus marks on the strength of the certificate of experience produced by him alongwith the application form.
21. In the result, the appeal is allowed. The order impugned dated 4.1.18 passed by the learned Single Judge of this Court is set aside. The writ petition is allowed. The order impugned dated 10.5.16 passed by the Director-cum-Special Secretary, Department of Local Self, Government of Rajasthan, rejecting the representation of the appellant is quashed. The appellant is held entitled for award of the bonus marks towards the experience of (Downloaded on 19/11/2020 at 08:42:05 PM) (11 of 11) [SAW-569/2018] fire services on the strength of the certificates produced by him alongwith the application form. The appellant shall be awarded bonus marks and if as per his merit position, he is selected for appointment on the post of Fireman, he shall be accorded appointment on the said post from the date person lower in merit than him is accorded appointment. The appellant shall not be entitled for actual monetary benefits from the date of the appointment but shall be extended notional benefits. No order as to costs.
(DEVENDRA KACHHAWAHA),J (SANGEET LODHA),J
Aditya/-
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