Rajasthan High Court - Jodhpur
Harkesh Jatav vs State Of Rajasthan on 29 October, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Writ Misc Applicatio No. 289/2018
Harkesh Jatav S/o Shri Dhan Singh Jatav, Aged About 30 Years,
Village Naugaw, Po Paota, Tehsil Mahwa, District Dausa
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Medical And Health Services (Group Iii), Government Of
Rajasthan, Secretariat, Jaipur.
2. The Director, Medical And Health Services, Rajasthan,
Tilak Marg, Swasthya Bhawan, Jaipur.
3. The Additional Director (Administration), Medical And
Health Services, Rajasthan, Tilak Marg, Swasthya
Bhawan, Jaipur.
----Respondents
For Petitioner(s) : Mr. Mahaveer Bishnoi
For Respondent(s) : Mr. Rishabh Tayal for Mr. KL Thakur,
AAG
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 29/10/2018
1. This misc. application has been preferred by the petitioner under Article 226 of the Constitution of India for recalling the order dated 30.08.2018 passed by this Court in S.B. Civil Writ Petition No.13265/2018.
2. Learned counsel for the parties has jointly submitted that the order dated 30.08.2018 has suffered from factual error.
Both the counsel further prays that the matter was to be decided in the same terms as that of S.B. Civil Writ Petition No.12593/2018 (Amar Singh Jatav Vs. State of Rajasthan & Ors., decided on 28.08.2018).
(2 of 7)
3. In light of such joint submission made by learned counsel for the parties, the misc. application is allowed and the order dated 30.08.2018 passed in this writ petition is recalled.
With the consent of the both the parties, the order dated 30.08.2018 is substituted by the following order :-
"1. The petitioner by way of filing this writ petition is claiming for the following reliefs :-
"a) The respondent no.3 may kindly be directed to accept the experience certificates of the petitioner, which is issued by the State of Punjab through service provider for the period for which the petitioner worked under the scheme of 108 Ambulance, which is the project of NRHM under which the petitioner is working on the post of Emergency Medical Consultant which is similar to Nurse Grade-II after due verification.
b) The respondents may kindly be directed to hold recruitment in pursuance to advertisement dated 30.5.2018 (Annex.5) as if the said bonus marks shall also be applicable to the petitioner.
c) The respondents may kindly be directed to grant bonus marks as per both the experience certificate which issued on the basis of the length of the service of the petitioner while working under the project of 108 Ambulance in State of Punjab on the post of Emergency Medical Consultant which is similar to Nurse Grade-II
d) The respondents may kindly be directed to give appointment to the petitioners on the post of Nurse Grade-II if the petitioner (3 of 7) is otherwise found eligible in pursuance of advertisement dated 30.5.2018 (Annex.5).
e) Any other appropriate writ, order or direction which this Hon`ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners.
f) Costs of the writ petition may kindly be awarded to the petitioners."
2. The petitioner is seeking recruitment on the post of Nurse Grade-II in pursuance of advertisement dated 30.5.2018 (Annex.5).
3. Counsel for the petitioner states that the respondents have granted bonus marks against experience to the candidates who are working under the Government of Rajasthan or under the project of NRHM/NHM or who are working under the Medicare Relief Society on the post of Nurse Grade-II or are discharging similar work but the same benefit is not being extended to the petitioner, who is working on the post of Emergency Medical Consultant in the scheme of 108 Ambulance in State of Punjab, which is a project of NRHM on contract basis despite having qualification of GNM and being registered with Rajasthan Nursing Council for the work done by him in the Hospitals out of State.
4. Counsel for the respondent at the outset submits that the controversy in-issue has been finally adjudicated by Hon`ble Division Bench of this Court (Jaipur Bench) in D.B. Civil Writ Petition No.925/2014 (Dr. Rohit Sharma Vs. State (Ayurved (4 of 7) Department) & Ors., decided on 6.10.2016, relevant portion of which reads as follows :-
"1. All these writ petitions/ appeal are challenging the virus of Rule 19 for the post of Compounder / Junior Nurse Grade and Ayurvedi Chikitsha Adhikari (Doctor). Since these cases involve identical questions of law and facts, they are decided by this common order.
2. All the matters have long history. The counsel for the petitioner has relied upon the decision of this Court dated 26th February, 2016 in Writ Petition No. 10246/2013 where it has been made clear that in view of letter dated 8th February, 2016, the grievances of the petitioner will not survive, therefore, the benefit will be extended to the petitioner of the petition of letter dated 8th February, 2016.
2.1 The same was followed vide order dated 12th April, 2016, in Civil Writ Petition No. 11009/2013 by the Division Bench.
3. The controversy has further arisen because of the order passed by Division Bench pursuant to the order dated 27th April, 2016 where following order was passed:-
"Learned counsel for petitioners prays for withdrawal of the application filed for disposal of the writ petition in the light of the order dated 26.2.2016 passed in DB Civil Writ Petition No.10246/2013, Yadvendra Shandilya & Ors. Versus State of Rajasthan & Ors. In view of aforesaid, application is dismissed as withdrawn. However, learned counsel for the respondents is directed to keep the author of the letter dated 8.2.2016 present in the court on the next date of hearing to explain his authority to pass an order in contravention to the Notification under challenge. If this court would not be satisfied by his authority, necessary order for action against him would be passed. Let this petition be listed on 2.5.2016 as a first case."
4. The counsel for the State Government Mr. Gill, AAG and Mr. S.K. Gupta, AAG have taken us to the clarification which has been made pursuant to the order dated 7th June, 2013. Compilation is produced on record.
(5 of 7)
5. There are several other orders dated 13th August, 2013 where the Division Bench of this court has passed following directions.
"As regards the submission made by the petitioner that he too has served & having length of experience on similar work in such of the society which is aided by the government is entitled to claim benefit of bonus marks in terms of amendment notification, suffice it to say that where-ever recruitments are made under either government or government's owned establishments appointments are by & eniarge made in conformity with the mandate of Art 14 of the Constitution and that is a pre- condition seeking public employment and merely because the society in which the petitioner is serving on similar like post as alleged and experience of its credit bu the government has no control over the affairs of the society, still such appointments could not be said to be made in conformity with the mandate of Art. 14 of the Constitution and in our considered opinion they cannot claim parity with such of the incumbents who have length of experience or credit on similar work in claiming benefit of bonus marks in terms of amendment notification dated 13.05.2013. Consequently, we do not find any substance in the petition and the same is devoid of merit and accordingly dismissed."
6. In another writ petition namely Writ Petition No. 10246/2013 dated 26th February, 2016 where the letter of 8th February, 2016 was accepted and following directions were issued:-
"As regards the persons who are appointed through placement agencies can be considered in the light of the judgment reported in 2013(4) RLW 3451 (Raj.) and as regards their working in the National Institute of Ayurved is concerned, it is brought to our notice that the State Government has taken a decision & communicated to Sh. G.S. Gill Additional Advocate General dt.8-2-2016 that such of the candidates who are working either in the Central Government Institution or in the institution controlled by the State Government or in National Institute of Ayurved may be considered for grant of bonus marks u/R 19 of the Rules as they fall within the ambit of Art.12 of the Constitution of India. We consider it appropriate to quote the decision of the State Government and communicated to Sh. G.S. Gill Additional Advocate General dt.8-2-2013, which reads ad infra :-
"mi;qZDr fo"k;kUrxZr lanfHkZr i= ds Øe esa funsZ"kkuqlkj ys[k gS fd dsUnzh; laLFkku vU; jkT; ljdkj ,oa jk"Vªh; vk;qosZn laLFkku esa dk;Zjr vH;FkhZ@deZpkjh tks] lafonk (6 of 7) ds vk/kkj ij dk;Zjr gS] dks cksul vad fn;s tkus ds laca/k esa jkT; ljdkj dk vfHker fuEu izdkj gS%& jktLFkku tujy DykWtst ,DV 1955 esa ^^ljdkj** ls vfHkizk;] dsUnz o jkT; ljdkj nksuksa ls gSA lkFk gh lafo/kku ds vuqPNsn 12 ds vUrxZr LFkkuh; fudk;k Hkh jkT; dh ifjHkk"kk ds vUrxZr lekfgr gSaA"
We further make it clear that this Court has not expressed about the individual petitioner whether he had been engaged by the CWP-10246/13 National Institute of Ayurved or engaged through placement agency and it is for the petitioners to place documentary evidence in support of their claim but we may hold that as regards the persons who are appointed through placement agency or by the National Institute of Ayurved, by virtue of decision of the State Government dt.8-2-2016 & the judgment of which reference has been made supra, may be considered for grant of benefit of bonus marks in terms of proviso to R.19 of the Scheme of Rules for participating in the selection process and if found suitable and finds place in the order of merit after bonus marks may be considered for appointment & with these directions/observations, the writ petition stands disposed of."
7. Third Division Bench has also accepted the same vide order dated 12th April, 2016. The controversy has arisen only because of the last order dated 27th April, 2016.
8. A close scrutiny of order dated 8.2.2016, 12.4.2016 and 27.4.2016 will show that each of the Division Bench has accepted the order dated 8.2.2016 in three different appeals.
9. In our opinion, the judicial propriety demands that once the order dated 8.2.2016 having been accepted by the three Division Benches, either it is required to be referred to the Larger Bench or to be accepted.
10. In that view of the matter, the three Division Benches of this Court accepted the order dated 8.2.2016, we approve the same and the State Government will follow the letter dated 8.2.2016 in its true spirit and benefit as per letter dated 8.2.2016 will be given to all the petitioners in these petitions or appellants of (7 of 7) appeal, subject to verification of the requirement under the letter dated 8.2.2016.
11. The petitions as well as appeal stand disposed of in aforesaid terms. "
5. After hearing learned counsel for the parties and perusing record as well as relevant precedent law, this Court deems it appropriate to dispose of this writ petition by directing the respondents to grant bonus marks to the petitioner keeping in view the aforementioned precedent law after making appropriate verification from the Mission Director, NHM/NRHM of the State concerned. The respondents shall be required to give such bonus marks as per their decision."
(Dr.PUSHPENDRA SINGH BHATI),J sudheer Powered by TCPDF (www.tcpdf.org)