Rajasthan High Court - Jodhpur
State Of Rajasthan vs Rajkumar on 30 July, 2019
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat, Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 673/2019
1. The State Of Rajasthan, Through The Secretary,
Department Of Ayurved, Govt. Of Rajasthan, Jaipur.
2. The Directorate, Department Of Ayurved, Govt. Of
Rajasthan, Ajmer.
3. Dr. Sarvpalli Radhakrishnan Rajasthan Ayurved University,
Jodhpur.
----Appellants
Versus
1. Daulat Ram S/o Sukh Ram, Aged About 30 Years, R/o
Quarter No. 7 Type 4 Residential Colony, Dr. S.r.
Rajasthan Ayurved University, Jodhpur.
2. Naresh Kumar S/o Shri Sardara Ram,, Aged About 30
Years, R/o Quarter No. 8 Type 4 Residential Colony, Dr.
S.R. Rajasthan Ayurved University, Jodhpur.
3. Govind Kumar Trivedi S/o Shri Santosh Kumar Trivedi,,
Aged About 29 Years, R/o 27 Chairman Ki Kohti Pili Ki
Talai, Amber, Jaipur.
4. Giriraj Prasad Saini S/o Jagdish Prasad Saini,, Aged About
30 Years, R/o Dhana Maharala, Hamirpur, Bansur Alwar
(Raj.).
----Respondents
Connected With
D.B. Spl. Appl. Writ No. 273/2019
1. State Of Rajasthan, Through Its Secretary, Ayurved
Department, Government Of Rajasthan, Secretariat,
Jaipur.
2. The Director, Ayurved Department, Ashok Marg, Lohagal
Road, Savitri College Circle, Ajmer.
----Appellants
Versus
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1. Mahesh Kumar S/o Shri Surendra Kumar, Aged About 24
Years, Vpo Rampura/ Ramsara, Tehsil Tibbi, District
Hanumangarh (Raj.), Presently Residing At Quarter No.
9/type/5, University Campus, Dr. Sarvepali
Radhakrishnan Rajasthan Ayurved University, Karwar,
Nagaur Road, Jodhpur.
2. Sarjeet Kumar S/o Shri Ramjee Lal,, Aged About 26
Years, Presently Residing At Quarter No. 9/type/5,
University Campus, Dr. Sarvepali Radhakrishnan
Rajasthan Ayurved University, Karwar, Nagaur Road,
Jodhpur.
3. Manoj Kumar Sharma S/o Shri Sanwarmal Joshi,, Aged
About 29 Years, Presently Residing At Quarter No.
9/type/5, University Campus, Dr. Sarvepali
Radhakrishnan Rajasthan University, Karwar, Nagaur
Road, Jodhpur.
4. Apoorv Bhaduka S/o Shri Shivlahari Sharma,, Aged About
25 Years, Vpo Gudhliya, Tehsil Baswa, District Dausa.
5. Ms. Sanju Gari D/o Shri Mohan Ram, Aged About 27
Years, Village Dhaka Ki Dhani, Post Sangaliya, Tehsil
Dantaramgarh, District Sikar.
6. Prahalad Ram Kumawat S/o Shri Hukami Chand,, Aged
About 26 Years, Near Railway Station, Chhoto Gudha,
Ward No. 5, Dhani Kumawato Wali, Post Sargoth, Tehsil
Srimadhopur, District Sikar.
7. Lalita Sharma D/o Shri Kishan Sharma Wife Of Shri
Chandra Shekhar Vyas,, Aged About 41 Years, 21-A,
Marwar Nagar, Behind Railway Station, Mahamandir,
Jodhpur.
8. Dr. Sarvepali Radhakrishnan Rajasthan Ayurved
University, Karwar Nagaur Road, Jodhpur (Raj.) Through
Its Registrar.
9. The Superintendent, Chikitsalya, University College Of
Ayurved, Dr Sarvepali Radhakrishnan Rajasthan Ayurved
University, Karwar, Nagaur Road, Jodhpur (Raj.).
10. The Principal, Shri Kaniram Salagram Tak Satellite
Ayurved Hospital And Nursing Training Centre, Dr.
Sarvepali Radhakrishnan Rajasthan Ayurved University,
Punjala, Jodhpur (Raj.).
----Respondents
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D.B. Spl. Appl. Writ No. 502/2019
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Ayurved And Indian Medicine, Jaipur,
Rajasthan.
2. The Joint Secretary, Department Of Ayurved And Indian
Medicine, Jaipur, Rajasthan.
3. The Principal Secretary, Department Of Finance,
Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
4. The Mission Director, National Rural Health Mission,
Department Of Medical, Health And Family Welfare,
Government Of Rajasthan, Swasthya Bhawan, Tilak Marg,
Ashok Nagar, Jaipur, Rajasthan.
5. The Director, Department Of Ayurved Directorate, Ashok
Marg, Savitri Circle, Ajmer, Rajasthan.
----Appellants
Versus
1. Rajkumar S/o Tarachand Harijan, Aged About 30 Years,
B/c Harijan, Village- Nuhand Tehsil Rajgarh District
Churu.
2. Manoj Kumar Verma S/o Sh. Ram Chandra,, Aged About
27 Years, B/c Verma, R/o Vpo Markhi, Via Amarsar, Tehsil
Shapura, District Jaipur.
3. Rohitash Yadav S/o Sh. Ram Gopal Yadav,, Aged About 26
Years, B/c Yadav, R/o Dhani-Derawali, Vpo- Hanutpura
Via Amarsar, Tehsil Shapura, District Jaipur.
4. Rishi Yogi S/o Kallu Ram Yogi,, Aged About 26 Years, B/c
Yogi, R/o Village Basshekhawat, Post Neemu Chana,
Tehsil Bansur, District Alwar.
5. Khilta Kumari D/o Pramod Kumar, W/o Rohitash Verma,,
Aged About 26 Years, B/c Hindu Kumhar, R/o Raipura
Jattan The Buhana Vaya Singhana, District Jhunjhunu.
6. Pankaj Kumar Yadav S/o Jagdeesh Yadav,, Aged About 28
Years, B/c Yadav, 53, I.s. Nagar, Murlipura Scheme,
District Jaipur.
7. Arun Kumar Sawarnkar S/o Banari Lal,, Aged About 29
Years, B/c Sawarnkar, R/o Vp Didwana Tehsil Lalsot,
District Dausa (Raj.)
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8. Dr. Sarvapalli Radhakrishan, Rajasthan Ayurved
University, Karwar, Nagaur Road, Jodhpur Through Its
Registrar
----Respondents
For Appellant(s) : Mr. Anil Kumar Gaur, AAG assisted by
Mr. Anupam Gopal Vyas
For Respondent(s) : Mr. Ripudaman Singh
Mr. Yashpal Khileree
Mr. Anil Vyas with Mr. Amit Gaur
HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reportable 30/07/2019 Per S. Ravindra Bhat, CJ :
1. For the reasons stated, the application filed for condonation of delay in SAW No.502/2019 is allowed. With the consent of the parties, the appeals were finally heard.
2. The question involved in these cases is whether the respondents-writ petitioners are entitled to claim bonus marks in the recruitment process notified by the State of Rajasthan, to the post of Nurse Grade-II. The advertisement dated 06.10.2018 indicated that the bonus marks would be awarded to candidates with experience of working in four categories of institutions [Clause-7(2) of the advertisement dated 06.10.2018]. The four categories were - those who worked with the State of Rajasthan under the National Rural Health Mission (in short 'NRHM');
employees who worked under the Chief Minister BPL Scheme, individuals appointed under the State Jeevan Raksha Kosh and those who had worked with the State of Rajasthan in its (Downloaded on 02/09/2019 at 12:54:08 AM) (5 of 10) departments, with similar experience. The advertisement is open and does not place any restrictions as to the manner of appointment to these four classes of institutions (i.e. contractual, temporary, through placement agency etc.).
3. The writ petitioners approached the Court contending arbitrariness on the part of the State because it refused to award them bonus marks, as they had not worked in any of the four listed categories of institutions. The writ petitioners were working in different classes of institutions, such as University, NGOs and Ayurvedic Hospitals, etc.
4. The learned Single Judge after considering the terms of the advertisement and the previous orders of this Court allowed the writ petitions. The impugned orders took note of the judgment in Manohar Singh & Ors. vs. State of Rajasthan & Ors. reported in 2014(2) WLN 13 (Raj.), which was affirmed by the Division Bench in State of Rajasthan & Ors. vs. Manohar Singh & Ors. (D.B. S.A.W. No.281/2013), decided on 27.1.2014.
5. The State argues that the judgment in Manohar Singh cannot be considered as binding precedent. It points out that the rule which renders persons with similar experience eligible for bonus marks i.e. Rule 19 of the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Subordinate Service (Amendment) Rules, 2013 enables grant of bonus marks to only those specified category of candidates who possess the requisite experience in listed institutions and none else. Learned AAG relies upon the Division Bench ruling in Gaurav Kumar Sen & Ors. vs. State of Raj. & Ors. (D.B. Civil Writ Petition No.24245/2018), decided on 29.10.2018.
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6. Learned counsel for the writ petitioners/respondents relied upon a circular/office order of the Government of Rajasthan dated 8.2.2016 to say that the decision in Manohar Singh and other subsequent judgments of Single Judges as well as Division Benches were accepted when the State Government unequivocally declared that all local authorities and Corporations who fell within the description of "State" under Article 12 of the Constitution were covered within the expression "State Government". It was argued besides, that the benefit of such bonus marks has been hitherto extended in the past in another Division Bench ruling in Yadvendra Shandilya & Ors. vs. State of Raj. & Ors. (D.B. Civil Writ Petition No.10246/2013), decided on 26.2.2016.
7. As stated earlier, whether to grant bonus marks, and to what extent and the conditions governing such grant, are spelt out in the advertisement [in the present case - para 7(2)]. Gaurav Kumar, the latest Division Bench judgment of this Court dated 29.10.2018 considered the validity of Rule 19, which states as follows :-
"19. Scrutiny of applications.- The Appointing Authority shall scrutinize the applications received by it and require as many candidates qualified for appointment under these rule as seem to it desirable for interview:
Provided that in case of appointment to the post of Nurse Compounder Junior Grade, the merit shall be prepared by the Appointing Authority on the basis of marks obtained in such qualifying examination specified in the Schedule appended to the rules and bonus marks as may be specified by State Government having regard to the length of experience on similar work under the Government, Chief Minister BPL Jeevan Raksha Kosh, National Rural Health Mission, as the case may be.
Provided further that the decision of the Appointing Authority, as to the eligibility or otherwise of a candidate, shall be final."(Downloaded on 02/09/2019 at 12:54:08 AM)
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8. This Court notices that the specific argument addressed in Gaurav Kumar was that the expression "Government" had to be given a wide and liberal interpretation so as to include Central and State Government as well as other National Institutions. In other words, to put, the petitioners propounded an expansive interpretation of the term. The petitioners had also cited the Division Bench ruling in Dr.Rohit Sharma vs. State (Ayruveda Department) & Ors. (D.B. Civil Writ Petition No.925/2014), decided on 6.10.2016 and other Division Bench judgments including Manohar Singh and Yadvendra Shandilya. This Court, however, was of the view that the Rule could not be invalidated for the reason that it confined to experience which could be granted to the candidate to only enumerated categories. The Division Bench in the latest ruling of Gaurav Kumar held as follows :-
"We are afraid, validity of the Rule may not be struck down on the basis of what has been argued. Rule cannot be declared ultra vires the Constitution only because of the rule making authority did not extend the benefit of bonus marks to those working in the National Institute of Ayurveda, Jaipur, and the Regional Ayurveda Research Institute for Skin Disorder, Ahmedabad and Patna. A rule can be declared ultra vires only if it is shown that the rule making authority lacked legal competence inasmuch as the Rule violates any of the provision of the Constitution or the parent Act under which they are framed. Whether or not to extend the benefit of bonus marks to those working with the aforesaid Institutes, is a matter of policy of the State Government to decide.
Reliance has been placed by the learned counsel for the petitioners on para no.3 of the order dated 06.10.2016 of a coordinate bench of this court in a bunch of writ petitions leading one being D.B. Civil Writ Petition No.925/2014 - Dr. Rohit Sharma Vs. State and Others, which reads thus:-
"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 (Downloaded on 02/09/2019 at 12:54:08 AM) (8 of 10) 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."
It would be evident from the aforesaid that the court summoned the author of the letter dated 8.2.2016 in the court to explain his authority to pass an order in contravention to the Notification under challenge. However, the learned counsel for the petitioner would argue that subsequently the court accepted the explanation of the author of the order dated 8.2.2016. The learned counsel for the petitioners referred to certain portion of the order dated 13.08.2013, which was quoted in the order dated 06.10.2016, supra, which reads as under:-
"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 recruitment are made under either government or government's owned establishments appointments are by & enlarge 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 but 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."(Downloaded on 02/09/2019 at 12:54:08 AM)
(9 of 10) In our view, the letter dated 08.02.2016 cannot be considered to be a government order as it is a mere communication sent by the Deputy Secretary to the Government, Department of Ayurveda and Indian Medicines, to the Additional Advocate General of the State. The Government has therefore cancelled the said letter dated 08.02.2016. We are not persuaded to interfere with the decision of the Government in cancelling the aforesaid letter dated 08.02.2016 vide order dated 10.02.2017. In our view, the order does not suffer from any kind of illegality. We are also not persuaded to entertain the challenge to validity of Rule 19 of the Rules of 2013 since we do not find any merit in the writ petition."
9. It is quite evident from the above discussion that Gaurav Kumar dealt with the precise issue. The import of the Division Bench judgment is clear that the award of bonus marks is a benefit and cannot be claimed as a matter of right. The State can then fashion its Rules and policies to grant such benefits to specified or particular individuals having regard to the needs of its departments. In such circumstances given the imperative of Rule 19, the Court does not discern any arbitrariness, if the State insists that only four specified categories of institutions or programme where the individual had worked would be considered eligible for bonus marks ; irrespective of manner of their recruitment or appointment. In these circumstances, the impugned order cannot be sustained.
10. The argument on behalf of the writ petitioners that the employees of the State Universities and other such bodies which are aided by the State should also be included and that their experience should be granted bonus marks, in the opinion of this Court is unpersuasive. If one accepts the position in law that grant of bonus marks is a benefit, it also follows that the State is entitled to choose whom to accord the benefit. There cannot be a (Downloaded on 02/09/2019 at 12:54:08 AM) (10 of 10) complaint of arbitrariness unless there is something manifestly unreasonable about the fashioning of such policies. The objective with which the State has framed its policy and confined grant of bonus marks for experience in four categories of the institutions is that each of them were carrying out State policies. It chose to grant bonus marks working in those institutions and not others, cannot in the opinion of the Court result in a complaint of discrimination or arbitrariness.
11. For the above reasons, this Court holds that the impugned judgments are in error and are accordingly set aside. The appeals are allowed accordingly. All pending applications are disposed.
(DR. PUSHPENDRA SINGH BHATI),J (S. RAVINDRA BHAT),CJ 52,54-55-Sphophaliya/-
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