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2017 DIGILAW 1331 (RAJ)

Sunila Kumari W/o Shri Rajesh Kothari D/o Shri Ram Singh v. State Of Rajasthan through Secretary, Department of Medical and Health, Govt. of Rajasthan, Secretariat, Rajasthan, Jaipur

2017-05-25

DINESH MEHTA

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1. Counsel for the petitioner, at the outset informs that this Court, while issuing notice on 04.10.2016, had passed the following interim order : “Meanwhile, the petitioner shall be allowed to provisionally participate in the counseling. However, her result shall be kept in sealed cover”. 2. Mr. SS Gaur, learned counsel for the petitioner, with concern submitted that the respondents, despite having allotted the college, have not permitted the petitioner to participate in the training. 3. He submitted that though the order of the Court was to keep the result in sealed cover, however, the respondents have instead, restrained the petitioner even from attending the classes. 4. In view of this factual backdrop, learned counsel for the petitioner showing urgency, requested this Court to hear the case finally, at this stage itself, which request was acceded to. The petitioner has preferred the present writ petition, inter alia challenging the condition No.5 & 6 of the advertisement No.GNM/G-88(Part-I)/2016/ and consequential rejection of her application for undergoing training course for General Nursing and Midwifary (GNM). 5. Shorn of unnecessary details, the facts in a nutshell necessary for the purpose of present writ petition are that the petitioner was appointed as ANM on contract basis, vide order dated 30.04.2003, by the Chief Medical & Health Officer, Bikaner; pursuant whereof she had joined on 06.05.2003. 6. It is not in dispute that the petitioner had uninterruptedly discharged her duties as ANM, with the respondents, albeit on contract basis. She later on came to be substantively selected by the respondents, vide order dated 29.01.2016. It is pertinent to note that the petitioner was awarded bonus marks for her experience as ANM on contractual basis, during the process of selection on regular basis. 7. The Respondents – Director, Medical & Health Services, Rajasthan, Jaipur, published an Advertisement No. NIL inviting application for training course for GNM, which inter alia contained two conditions, which offends the petitioner. It will not be out of place to reproduce the impugned conditions of the Advertisement, which reads there : 5- foHkkx esa lafonk@lesfdr osru (Fixed Pay) ij dk;Zjr deZpkjh p;u ds ik= ugha gSA 6- foHkkx esa fu;fer dkfeZd ds :i esa lsokjr deZpkjh ftUgksaus vkosnu dh vafre frfFk rd fujUrj lsok 5 o"kZ ;k mlls vf/kd iw.kZ dj yh gS] foHkkxh; deZpkfj;ksa dh Js.kh esa vkosnu djus ds ;ksX; gksaxsA 8. The petitioner submitted her application, in pursuance of the aforesaid advertisement, indicating therein that the petitioner’s date of confirmation was 01.01.2012. Though not of much relevance, for the present controversy, yet to set the facts right, it may be pointed out that in petitioner’s own certificate, enclosed with the Form, she had disclosed her date of regular appointment as 29.01.2016, albeit pointing out that she has worked on contract basis from 06.05.2003 to 28.02.2013. 9. Respondents issued a list of selected candidates for admission in GNM Training Course 2016-17, however, rejected petitioner’s candidature with the following observations : ^^fpfdRlk ,oa LokLF; foHkkx esa dk;Zjr deZpkjh dh lsok 5 o"kZ ls de gSA vkosnu dh vfUre frfFk 24@8@2016 rdZ 10. A look at the above quoted excerpts of the provisional select list of candidates for admission in GNM Training Course 2016-17 reveals that petitioner’s candidature has been rejected, apparently in wake of conditions No.5 & 6 of the advertisement, read with an order dated 07.09.2016, issued by the Directorate, which stipulates that the candidates, who have not completed five years’ of continuous service shall not be considered for the course. 11. Challenging the rejection of the petitioner’s candidature for undergoing GNM course, Mr. SS Gaur, learned counsel for the petitioner contended that the Condition No.5 & 6 of the advertisement are arbitrary and violative of Article 14 of the Constitution. He submitted that the offending conditions have no nexus with the object to be achieved, inasmuch as the respondents are simply providing training course for which, the services or experience as regular employee or contractual employee makes no difference. 12. Per contra, Ms. Shweta Bora submitted that the conditions of the advertisement are required to be strictly adhered to. She further submitted that the petitioner’s experience of services rendered as contractual employee, cannot be considered. She and supported the action of the respondents by contending that the same is in due compliance of the conditions of the advertisement. 13. I have heard learned counsel for the parties and considered the material available on record. The facts are not in dispute that the petitioner has been uninterruptedly working with the respondents, initially on contract basis from 06.05.2003 and thereafter as confirmed employee on the post of ANM w.e.f. 29.01.2016. 14. 13. I have heard learned counsel for the parties and considered the material available on record. The facts are not in dispute that the petitioner has been uninterruptedly working with the respondents, initially on contract basis from 06.05.2003 and thereafter as confirmed employee on the post of ANM w.e.f. 29.01.2016. 14. As far as Condition No.5 is concerned, it simply stipulates that the persons working on contract basis / fix pay basis shall not be entitled for undergoing training. It is an admitted case of the parties that on date of filing the application i.e. 27.07.2016, the petitioner was neither working on contract basis nor on the fixed pay basis. Thus, the condition No.5, does not in any manner come in petitioner’s way or poses any sort of disqualification for the petitioner. 15. Then comes the crucial condition No.6, around which the whole controversy revolves. According to the respondents the petitioner is not entitle to undergo training, as she did not posses five years’ experience as a ‘regular employee’. However, a bare reading of the condition No.6 reveals that it contemplates five years of ‘continuous service’ and not ‘regular service’. The term fujUrj means continuous and not regular as claimed and understood by the respondents. Had the intention of the authorities to permit the employees, who have completed five years of regular service, the term would have used as fu;fer and not fujUrj 16. This Court is at a loss to understand as to why, services rendered on contract basis, should not be reckoned as experience; for the purpose of calculating or considering experience. It becomes all the more relevant when we find that there is no stipulation regarding fix/regular or contractual employment in the advertisement. 17. A careful reading of the Conditions No.5 & 6 reproduced in earlier part of the judgment reveals that Condition No.5 deals with the eligibility of the candidates and by virtue of such condition, the employees working on contract / fixed pay basis have been ousted. While condition No.6 deals with the experience, which uses two expressions ^fu;fer dfeZd^ or regular employees, however with a stipulation that they should have experience of five years’ continuous service, without laying down any impediment regarding the nature of employment viz. regular or contractual. 18. While condition No.6 deals with the experience, which uses two expressions ^fu;fer dfeZd^ or regular employees, however with a stipulation that they should have experience of five years’ continuous service, without laying down any impediment regarding the nature of employment viz. regular or contractual. 18. A purposive interpretation of combined reading of twin conditions (No.5 & 6) would definitely lead us to conclusion that the incumbent must be a regularly selected ANM and not a contractual employee, on the date of application and he/she has completed five years’ continuous service as ANM. Apart from this, the advertisement in question is only meant for imparting training, without conferring any substantive right of employment etc. As such petitioner’s selection as a trainee, would not prejudicely affect other person’s right. As such, even if there is a room for other possible interpretation, the Court should lean towards and adopt the one, which favours the citizen and furthers the cause. 19. In view of the above discussion, this Court has no hesitation in holding that the rejection of petitioner’s candidature for the GNM Training Course, on the footing that the petitioner has not completed five years’ regular service, is illegal and arbitrary. Petitioner’s exclusion from the list of candidature being not in consonance with the conditions of the advertisement, is therefore, quashed. 20. It is held that the petitioner is entitled for pursuing the GNM training course, as she has got more than five years’ experience of continuous service, as ANM. 21. The writ petition is allowed as indicating above. The respondents are directed to permit the petitioner to undergo the training and attend the classes of GNM Training course. No order as to costs.