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2018 DIGILAW 216 (RAJ)

Dholee D/o Shri Heera Ram W/o Shri Suresh Kumar v. State of Rajasthan Through the Principal Secretary, Medical & Health Services (Group-III), Govt. of Rajasthan, Secretariat, Jaipur

2018-01-17

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. These writ petitions under Article 226 of the Constitution of India have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clauses are being taken from the leading case being S.B. Civil Writ Petition No.3697/2017: "It is, therefore, most humble prayed that this writ petition may kindly be allowed with cost and by an appropriate writ, order or direction; (i) the respondents may kindly be directed to revise the merit list of Female Health Worker (ANM) in pursuance of the advertisement dated 26.02.2013 (Annex.3) while granting the bonus marks in cap 30 marks as provided as per the Rule 19 and mentioned under Para 8 of the advertisement. (ii) The respondents may kindly be also directed to prepare fresh merit list of Female Health Worker (ANM) in pursuance of advertisement dated 26.02.2013 (Annex.3) in light of the judgment of Hon'ble Supreme Court while granting bonus marks in cap of 30 marks. (iii) the respondents may kindly be further directed if petitioners found eligible and stands in merit list then they may be given appointment on the post of Female Health Worker (ANM) from the date which other similarly situated candidates were given appointment with all consequential benefits. 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. Cost of the writ petition may kindly be awarded to the petitioners." 2. Learned counsel for the parties are not in a position to refute that the present case is squarely covered by the decision passed by this Court in the matter of Prithviraj & Ors. v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.14942/2017), which reads as under: "1. These writ petitions under Article 226 of the Constitution of India have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clauses are being taken from the leading case being S.B. Civil Writ Petition No.14942/2017. v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.14942/2017), which reads as under: "1. These writ petitions under Article 226 of the Constitution of India have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clauses are being taken from the leading case being S.B. Civil Writ Petition No.14942/2017. "It is, therefore, most humble prayed that this writ petition may kindly be allowed with cost and by an appropriate writ, order or direction; (i) the respondents may kindly be directed to revise the merit list of Nurse Grade-II in pursuance of the advertisement dated 26.02.2013 (Annex.3) while granting the bonus marks in cap of 30 marks as provided as per the Rule 19 and mention under para 8 of the advertisement. (ii) The respondents may kindly be also directed to prepare fresh merit list of Nurse Grade-II in pursuance of advertisement daed 26.02.2013 (Annex.3) in light of the judgment of Hon'ble Supreme Court while granting bonus marks in cap of 30 marks. (iii) the respondents may kindly be further directed if petitioners found eligible and stands in merit list then they may be given appointment on the post of Nurse Grade-II from the date which other similarly situated candidates were given appointment with all consequential benefits. 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. Cost of the writ petition may kindly be awarded to the petitioners." The brief facts as noticed by this Court are that the petitioners are having qualification of General Nursing & Midwifery (GNM) and being registered in Rajasthan Nursing Council were aspiring for being recruited on the post of Nurse Grade-II. Vide notification dated 06.02.2013, the State Government amended Rule 19 of the Rules of 1965 and has inserted a proviso with regard to award bonus marks. The State Government in pursuance of the aforesaid notification dated 06.02.2013 has issued an order dated 27.10.2013. Vide notification dated 06.02.2013, the State Government amended Rule 19 of the Rules of 1965 and has inserted a proviso with regard to award bonus marks. The State Government in pursuance of the aforesaid notification dated 06.02.2013 has issued an order dated 27.10.2013. The said order dated 27.10.2013 as well as proviso to Rule 19 of the Rules of 1965 read as under : **vr% fu;e&19 ds izko/kkuksa ds vuqlkj jkT; ljdkj }kjk cksul vad fn;s tkus ds laca/k esa fuEukuqlkj funsZ'k iznku fd;s tkrs gS%& 1 & QkekZflLV ds in ds fy;s ljdkj eq[;ea=h chsih,y thou j{kk dks"k jk"V~h; xzkeh.k LokLF; fe'ku] esfM+ds;j fjyhQ lkslk;Vh ,M~l dUV~ksy lkslk;Vh ,oa lgdkfjrk foHkkx ds v/khu lapkfyr laLFkk,a vFkok lgdkjh miHkksDrk Hk.M+kj ds rgr leku dk;Z (similar word) ij vuqHko dh vof/k ds vk/kkj ij cksul vad fn;s tkosaxsA 2 & QkekZflLV ds vfrfjDr vU; in tks jktLFkku yksd lsok vk;ksx dh ifjf/k esa ugha gS] ds fy;s ljdkj] jk"V~h; xzkeh.k fe'ku ,oa esfM+ds;j fjyhQ lkslk;Vh ds rgr leku dk;Z (similar work) ij vuqHko dh vof/k ds vk/kkj ij cksul vad fn;s tkosaxsA 3 & mij fcUnq la[;k 1 vkSj 2 esa mYysf[kr izR;sd ,d iw.kZ o"kZ ds vuqHko ij 10 izfr'kr cksul vad ,oa vf/kdre 30 izfr'kr cksul vad fn;s tkosaA 365 fnol iw.kZ gksus ij gh ,d o"kZ ekuk tkosxkA 4 & lh/kh HkrhZ gsrq ofj;rk lwph rS;kj djus ds fy, 70 izfr'kr osVst vH;FkhZ }kjk jktLFkku fpfdRlk ,oa LokLF; v/khuLFk lsok fu;e] 1965 dh vuwlwph esa of.kZr U;wure 'kS{kf.kd@O;olkf;d ;ksX;rk ijh{kkvksa esa vH;FkhZ }kjk izkIr vadksa ds izfr'kr dk vkSlr izfr'kr dks fn;s tkosxk vFkkZr ;fn fdlh vH;FkhZ }kjk viuh 'kS{kf.kd@O;kolkf;d ;ksX;rk esa 80 izfr'kr vad izkIr fd;s x;s gS ,oa mls iw.kZ rhu o"kksZ dk cksul vadksa dk ykHk fn;k tkuk gS] rks mldk izfr'kr 80x70/100+30=86 vkSlr izfr'kr gksxk ,oa ;fn fdlh u;s vH;FkhZ ftls cksul dk ykHk ugha feyrk gS] dk izfr'kr ;fn 80 izfr'kr gS] rks fu;qfDr ds mn~ns'; ds fy;s mldk izHkkoh izfr'kr 80x70/100=56 vkSlr izfr'kr gksxkA ojh;rk lwph rS;kj djus gsrq ;g izfdz;k viukbZ tkosA** "Provided that in case of appointment to the posts other than Pharmacist, which are not in the purview of the Commission, merit shall be prepared by appointing authority on the basis of marks obtained in such qualifying academic examination or professional examination or both as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, National Rural Health Mission and Medicare Relief Society." 3. The bonus marks was to be accordingly given and the State Government stipulated 10 bonus marks for a particular year and maximum 30 bonus marks for the experience. The advertisement dated 26.02.2013 inviting applications for the post of Nurse Grade-II Public Health Nurse and Women Health Worker which is Annexure-3 was initiated. The grievance of the petitioners is that while the advertisement read with Rule 19 required the respondents to extend 10 bonus marks for each year up to 30 bonus marks but the respondents have failed to do so. 4. Learned counsel for the petitioner has argued that the Rule 19 of the Rules of 1965 envisaged the bonus marks and thus, the respondents are under statutory obligation to extend the bonus marks upto 30 marks. Learned counsel for the petitioner has further argued that the bonus marks of 5, 10 & 15 marks respectively are not in consonance with the Rule 19 or the terms and conditions of the advertisement. 5. Learned counsel for the petitioner has further argued that the Hon'ble Apex Court in its judgment has upheld the policy of the State Government to grant bonus marks of 10, 20 & 30 respectively for one year each. Learned counsel for the petitioner has also stated that the Hon'ble Division Bench's order was no longer holding the field and therefore, the respondents are required to abide by the original policy and terms and conditions of the advertisement. 6. Learned counsel for the petitioner also made a submission that the Division Bench order was challenged by the respondents themselves and other private persons, however, it is not disputed that the SLP was subsequently, dismissed as withdrawn. 7. Learned counsel for the respondents has further refuted the claim on the ground that the Hon'ble Division Bench of this Court vide its order dated 24.09.2013 in Writ Petition No.9352/2013 held that only 5, 10 & 15 marks for completing 1, 2 & 3 years of service could be awarded. 8. Learned counsel for the respondents has submitted that though the SLP was preferred but the SLP was withdrawn and thus, the order of Division Bench of the Hon'ble High Court dated 24.09.2013 acquired finality. 9. 8. Learned counsel for the respondents has submitted that though the SLP was preferred but the SLP was withdrawn and thus, the order of Division Bench of the Hon'ble High Court dated 24.09.2013 acquired finality. 9. Learned counsel for the respondents further made a categorical statement that the recruitment process was completed in the year 2016 itself by giving the benefit of 5, 10 & 15 years of experience much before the policy of 10, 20 & 30 bonus marks being upheld by the Hon'ble Apex Court. 10. Learned counsel for the respondents has also relied upon the judgment of Hon'ble Apex Court passed in the matter of State of Rajasthan & Ors. v. Archana passed in petitions for Special Leave to Appeal (C) No.(s)32008-32009/2013. The relevant portion of the judgment reads as under: "In the instant case, the State itself was the propounder of the policy (noticed above), giving the weightage which varied with the number of 'experience' gained by the employees. Therefore, the State cannot be heard to say that the policy is not a rational policy. Apart from that, we do not find anything arbitrary in the policy propounded by the State. In the result, the appeals of the State as well as of the employees are allowed. We set aside the judgment under appeal to the extent that it held that the State Government may grant weightage/bonus marks against the service experience within the cap of 15 marks. In other words, the policy propounded by the State must be allowed to operate on its own terms." 11. After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that the selection process in question itself was completed in February, 2016 as the medical hands were required in urgency by the respondents and admittedly, the precedent law of the time propounded by the judgment of the Hon'ble Division Bench vide its order dated 24.09.2013 in Writ Petition No.9352/2013 required the respondents to give the benefit of 5, 10 & 15 marks for completing 1, 2 & 3 years of service. 12. 12. Moreover, the Hon'ble Apex Court while deciding the controversy finally has taken note of the fact that the weightage given for the experience to the employee is a sheer discretion of the State and unless there is anything arbitrary, the same ought not to be interfered by the Court. The Hon'ble Apex Court has concluded the judgment by saying that the policy propounded by the State must be allowed to operate on its own terms. Admittedly, in the present case, the State has decided to follow the judgment of the Hon'ble Division Bench of this Court dated 24.09.2013 for giving 5, 10 & 15 bonus marks respectively. 13. In light of the aforesaid observations, no interference is called for, hence, the petitions are dismissed. 14. In light of the afore-quoted judgment, the present writ petitions are also dismissed on the same terms.