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2015 DIGILAW 933 (RAJ)

Pyarelal Nehra v. State of Rajasthan

2015-04-24

SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

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JUDGMENT 1. We have heard learned counsel appearing for the parties. 2. In this writ petition, the petitioners have challenged the selections on the post of Compounder/Nurse Junior Grade, initiated by the Directorate of Homeopathic Medical Department, vide advertisement No. 1/2013, dated 07.06.2013. The selections are being held in accordance with the qualifications, experience and method of selection, prescribed in The Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Subordinate Service Rules, 1966 (for short, 'the Rules of 1966'). The Rules of 1966 were amended by the Notification dated 08.04.2010, substituting the qualifications and experience for the pose of Compounder/Nurse Junior Grade, apart from other amendments, and thereafter by the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Subordinate Service (Amendment) Rules, 2013, notified on 09.05.2013. 3. It is submitted that the method of selections adopted under the Rules of 1966, as amended in the year 2010 and thereafter in the year 2013, is to prepare the list on the basis of the marks obtained in Diploma in Ayurved Nursing, to the extent of 85%. The remaining 15% marks are to be considered on the basis of the experience of serving as Ayurved Nurse/Compounder in any Government scheme, referred to in the advertisement. 4. It is submitted that the marks were awarded in the Diploma in Ayurved Nursing upto the year 2007 on the basis of examination, which did not include the internal assessment. After the year 2007, 20% marks were added in Diploma Course in Ayurved Nursing for interim assessment, and by which, substantially higher marks were awarded to the examinees. The State Government should have taken into consideration the method of award of marks in Diploma in Ayurved Nursing, which is essentially a professional qualification. By the change in the method of assessment of marks after 2007, which liberal marks were awarded, those who had appeared in the Diploma examination upto the year 2007, have been discriminated. They do not stand a chance in the selections as against those, who were awarded liberal marks after the year 2007. 5. We are of the view that the method of award of marks for the qualifying professional examination, cannot be the oasis to challenge the method of selection. There is no such material placed on record that there was any such variance in the award of marks prior to 2007, which may cause discrimination, and thus, making the selections arbitrary. 6. We are of the view that the method of award of marks for the qualifying professional examination, cannot be the oasis to challenge the method of selection. There is no such material placed on record that there was any such variance in the award of marks prior to 2007, which may cause discrimination, and thus, making the selections arbitrary. 6. In the re-presentation submitted by the petitioners, a request was made to adopt the formula of percentile to normalize the number of marks obtained by the students, who were awarded Diploma prior to 2007, and those, who obtained Diploma after 2007 for the purpose of selections. It was stated in paragraph 9 to 14 of the representation, as follows:- "9. That my clients are Diploma/Degree holders and they did their Diploma prior to the year 2007. Prior to the year 2007, there was no provision of providing internal marks. The examinations were conducted on the basis of entire marks for which exams were taken i.e. 100 out of 100 marks. But now-a-days the examinations are taken in two parts i.e. seasonal and internal marks. Examination for 80% seasonal marks is being conducted by the University while the 20% internal marks are provided by the college. And it has been observed now-a-days that the private colleges used to award 20 marks out of 20 marks to their students, who are studying in their college, to show better performances for getting more admissions in their colleges. 10. That during last 5-6 years, the pattern and syllabus of examination is changed. Hence the students are getting more than 90% marks in these examinations. Hence there is no possibility that the students who passed their diploma prior to 6-7 years would compete such students. Hence my clients and the similar candidates would never get appointment on any post if such criteria for selection is allowed to prevail. 11. That the better solution to deal with such situation would be either the competitive examination should be held so that everyone can get a chance to participate and secure the merit on the basis of his/her performance or the merit should be prepared on the basis of percentile formula. Such formula of percentile was adopted by the Government in the Pharmacist (Direct Recruitment) Examination 2011 in multiple batches adopting Eqvipercentile eqanting method. 12. Such formula of percentile was adopted by the Government in the Pharmacist (Direct Recruitment) Examination 2011 in multiple batches adopting Eqvipercentile eqanting method. 12. That if the formula of percentile is applied in this selection process, no candidate would be disadvantaged. Rather, it would maintain normalization among all the candidates. 13. That if the merit/select list is not prepared by calculating percentile marks of the candidates, then not a single candidate of the batches prior to 2007 would get any chance for his/her consideration in the selection process for appointment on the post of Compounder/Nurse Jr. Grade. 14. That if percentile formulation is not adopted and applied for normalization in the case of my clients, then it would occasion failure of justice." 7. The contents of the representation are not supported by any such material or the marks sheets, showing variance of marks obtained by the candidates in Diploma Examination prior to 2007 and after 2007, and in any case, even if there was any variance, it would not change the criteria of selections in the subject selections under the Statutory Service Rules, held after a period of six years in 2013, in which the candidates who passed the examination upto the date of advertisement, are to be taken into consideration. 8. We find that even if there was some variance of marks obtained in the internal assessment after the year 2007, it cannot be made ground for adopting a formula of percentile for considering the marks in the qualifying examination of the eligibility, which is common to all. 9. The petitioners have made one other prayer, namely to give away the award of bonus marks for experience to the extent of 15% in the selections, inasmuch as the bonus marks are anti meritarion, and are violative of the judgment of the Supreme Court in State of Karnataka v. Uma Devi, 2006(4) SCC 1 . A coordinate Bench of this Court at Jaipur in D.B. Civil Writ Petition No. 1723/2013- Mitendra Singh Rathore & Ors. v. State of Raj. & Ors. , considered this argument and has upheld the award of bonus marks, vide its judgment dated 30.07.21013. We, therefore, are not required to consider the question allover again. 10. In the aforesaid facts and circumstances, there is no merit in the writ petitions and the same are, accordingly, dismissed.Writ petition dismissed. *******