Rajasthan High Court - Jaipur
Yogesh Chand Sharma, S/O Shri Bihari Lal ... vs State Of Rajasthan on 29 October, 2021
Bench: Prakash Gupta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Misc. Stay Application No. 7137/2021
In
D.B. Civil Writ Petition No. 7456/2021
Yogesh Chand Sharma & Anr.
----Petitioners
Versus
State Of Rajasthan & Others
----Respondents
Connected With D.B. Civil Misc. Stay Application No. 7231/2021 In D.B. Civil Writ Petition No. 7552/2021 Ramavatar Meena
----Petitioner Versus State Of Rajasthan & Anr.
----Respondents D.B. Civil Misc. Stay Application No. 7240/2021 In D.B. Civil Writ Petition No. 7565/2021 Javed Khan & Ors.
----Petitioners Versus State Of Rajasthan & Anr.
----Respondent For Petitioner(s) : Mr. Vigyan Shah, Advocate Mr. Tanveer Ahmad, Advocate For Respondent(s) : Mr. C.L. Saini, Additional Advocate General HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI Order Date of Order :: 29/10/2021 (Downloaded on 29/10/2021 at 10:40:26 PM) (2 of 6) [7137 Stay Application 2021 in CW-7456/2021] These writ petitions have been filed by the petitioners under Article 226 of the Constitution of India challenging the Notification dated 12.6.2021 and condition no. 7 of the advertisement dated 17.6.2021.
Learned counsel for the petitioners submits that Government of Rajasthan vide Notification dated 27.12.1966 introduced the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Subordinate Service Rules, 1966 (for short, 'the Rules of 1966'). Vide Notification dated 9.5.2013, amendment was made in Rule 19 of the Rules of 1966 to the effect 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 the 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. He further submits that in the light of the amended Notification dated 9.5.2013, the State Government issued advertisement no. 1/2013 for appointment on the post of Compounder / Nurse Junior Grade and introduced granting bonus marks to the candidates, who acquired experience of similar posts at various institutions. He further submits that thereafter vide Notification dated 12.6.2021, amendment was made in Rule 10 & 19 of the Rules of 1966 and the existing expression "National Rural Health Mission" was replaced with the expression "National Health Mission, Dr. Sarvepali Radhakrishnan Rajasthan Ayurveda University, Jodhpur or any Ayush Project run in the State of Rajasthan by the Government. Thus, all the candidates who (Downloaded on 29/10/2021 at 10:40:26 PM) (3 of 6) [7137 Stay Application 2021 in CW-7456/2021] acquired their work experience previously from the afore- mentioned institutions were made eligible for grant of bonus marks and / or were granted age relaxation. On 17.6.2021, the respondents issued an advertisement dated 17.6.2021 for the post of Compounder / Nurse Junior Grade, whereby total 507 vacancies came to be advertised under non-TSP Areas and condition no. 7 was incorporated therein.
Relevant part of the condition no. 7 of the advertisement dated 17.6.2021 is as under :-
^^jktLFkku vk;qosZn] ;wukuh] gksE;ksiSfFkd ,oa izkd`frd fpfdRlk v/khuLFk lsok fu;e] 1966 ,oa la'kksf/kr fu;e 2013 o la'kksf/kr fu;e 2021 ds fu;e 19 ds izko/kkuksa ds rgr vH;fFkZ;ksa dks cksul vad ns; gS A 1- bu foKkfir inksa ds fy, jkT; ljdkj eq[;ea=h chih,y] thou j{kk dks"k] jk"Vªh; LokLF; fe'ku] MkW- loZiYyh jk/kkd`".ku jktLFkku vk;qosZn fo'ofo|ky;] tks/kiqj ;k ljdkj }kjk jktLFkku jkT; esa lapkfyr dksbZ vk;q"k ifj;kstuk ds vUrxZr foKkfir inksa ds leku dk;Z ¼Similar Work½ ij dk;Z djus dh vof/k ds vk/kkj ij vuqHko izkIr vH;fFkZ;ksa dks izR;sd iw.kZ o"kZ ds vuqHko ij 10 izfr'kr cksul vad ,oa vf/kdre 30 izfr'kr cksul vad ns;
gksaxsA ,d o"kZ ls de vof/k ds fy;s dksbZ cksul vad ns; ugha gksxkA 2- dEikm.Mj@ulZ twfu;j xzsM inksa dh lh/kh HkrhZ ds fy, ofj;rk lwph mDr fu;eksa ds fu;e 19 ,oa rn~UrxZr tkjh vf/klwpuk Øekad Ik-10¼11½vk;q-@2012 ikVZ k fnukad 4-10- 2018 esa of.kZr izko/kkuksa ds rgr~ rS;kj dh tkosxhA ftlds vuqlkj jktLFkku jkT; ljdkj] eq[;ea=h chih,y] thou j{kk dks"k] jk"Vªh; LokLF; fe'ku] MkW] loZiYyh jk/kkd`".ku jktLFkku vk;qosZn fo'ofo|ky;] tks/kiqj ;k ljdkj }kjk jktLFkku jkT; esa lapkfyr dksbZ vk;q"k ifj;kstuk ds rgr~ dk;kZuqHko dh vof/k ds vk/kkj ij vf/kdre 30 izfr'kr osVst cksul vad fn;s tk;saxsA izR;sd ,d iw.kZ o"kZ ds vuqHko ij 10 izfr'kr cksul vad ,oa vf/kd vof/k ds dk;kZuqHko ds fy, vf/kdre 30 izfr'kr cksul vad fn;s tkosaxs (Downloaded on 29/10/2021 at 10:40:26 PM) (4 of 6) [7137 Stay Application 2021 in CW-7456/2021] ¼365 fnol iw.kZ gksus ij ,d gh o"kZ ekuk tkosxk½ ,oa 70 izfr'kr osVst vH;FkhZ }kjk mDr fu;eksa ds layXu vuqlwph esa of.kZr vgZd ijh{kk esa vH;FkhZ }kjk izkIr vadks ds izfr'kr ds vkSlr izfr'kr dks fn;k tkosxkA ^^ He further submits that the petitioners have worked on similar posts to the advertised posts through placement agency in Homeopathy Dispensary, University of Rajasthan and / or in Tribal Health Care Research Programme (THCRP) under Central Council for Research in Ayurvedic Sciences (CCRAS), which is an autonomous body of the Ministry of AYUSH (Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy), Government of India, but they have not been considered eligible for bonus marks on account of wrong interpretation of Rule 2(e) of the Rules of 1966, which deals with the word 'Government'. He further submits that due to exclusion of the Central Government institutions and / or an autonomous body, unreasonable discrimination has been made between the employees.
He further submits that Hon'ble Apex Court in the case of Dr. (Major) Meeta Sahai Versus State of Bihar & Ors. (Civil Appeal No. 9482 of 2019) while dealing with the similar controversy, vide its judgment dated 17.12.2019 allowed the appeal and construed the relevant rules to include the experience gained by a doctor in any hospital run by the Bihar Government or its instrumentalities, as well as any other non-private hospital (including those run by the Central Government, Municipalities and Panchayati Raj Institutions; or other public authorities) within the territory of Bihar.
On the other hand, learned AAG appearing for the State has opposed the same and submits that a candidate appearing in (Downloaded on 29/10/2021 at 10:40:26 PM) (5 of 6) [7137 Stay Application 2021 in CW-7456/2021] the recruitment process conducted by the Ayurved Department for filling up the vacant posts of Ayurved Compounder / Nurse Junior Grade pursuant to the advertisement dated 17.6.2021 is entitled to get the bonus marks as per his / her work experience in the aforesaid schemes run by the State Government. He further submits that the Coordinate Bench of this Court vide its judgment dated 29.8.2019 passed in D.B. Civil Writ Petition No. 12838/2018 titled Sandeep Kumar Saini & Ors. Versus State of Rajasthan & Ors. and other connected matters as also vide its judgment dated 30.7.2019 passed in D.B. Special Appeal (Writ) No. 673/2019 titled The State of Rajasthan & Ors. Versus Daulat Ram & others and other connected matters has already settled the issue involved in these matters, therefore, the petitioners are not entitled to any interim relief and their stay applications are liable to be rejected.
Heard. Considered.
The reliance placed by the learned counsel for petitioners on the judgment rendered by the Hon'ble Supreme Court in the case of Dr. (Major) Meeta Sahai (supra) is misconceived. In Dr. (Major) Meeta Sahai (supra), the question before the Hon'ble Supreme Court was whether or not the phrase "Government Hospital" would include within its ambit other non private hospitals set up in the State of Bihar so as to entitle the appellant therein for marks based on her experience in an Army Hospital. Considering the language used in Rule 5 of the Bihar Health Service (Appointment and Service Conditions) Rules, 2013 more particularly the usage of the word "any", the Hon'ble Supreme Court held that the term "Govt. Hospital" includes within its ambit non private hospitals set up in the State. While holding (Downloaded on 29/10/2021 at 10:40:26 PM) (6 of 6) [7137 Stay Application 2021 in CW-7456/2021] so, the Court also took note of the fact that the legislature had specifically used the word "any" in Rule 5 of the Rules of 2013 to give it a broader and expansive definition and the condition stipulated in clause 5(iii) of the advertisement in question was contrary to Rule 5. Further, the Hon'ble Supreme Court in that case also noted the absence of a specific definition of "Govt. Hospital" in Rule 2 and, therefore, applied the Rules of purposive interpretation. In the case at hand, for being entitled to bouns marks, experience only in certain institutions / schemes has been specifically mentioned in Rule 19, as amended by the Notification dated 12.6.2021. The law with respect to grant of bonus marks has already been settled by the Coordinate Benches of this Court in the case of Sandeep Kumar Saini (supra) and Daulat Ram Sharma (supra), wherein the Coordinate Bench considering the scope of Rule 19 observed that if grant of bonus marks is a benefit, the State is also entitled to choose whom to accord the benefit. Considering the case laws and pleadings of the parties, we are of the considered opinion that prima-facie Rule 19 and condition no. 7 of the advertisement dated 17.6.2021 do not appear to be arbitrary or unconstitutional.
Thus, there being no prima facie case in favour of the petitioners, we are not inclined to permit the petitioners to participate in the selection process provisionally. The stay applications are accordingly dismissed.
We, however, make it clear that the selection would remain subject to the outcome of the instant writ petitions. (VINOD KUMAR BHARWANI),J (PRAKASH GUPTA),J DK/44-46 (Downloaded on 29/10/2021 at 10:40:26 PM) Powered by TCPDF (www.tcpdf.org)