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2018 DIGILAW 81 (RAJ)

Priyanka Choudhary v. State of Rajasthan

2018-01-05

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. This writ petition under Article 226 of the Constitution of India has been preferred with the following prayers:- "(a). the impugned action of the respondents in not considering the petitioner's candidature for appointment on the post of Nurse Grade II in pursuance of the vacancies advertised vide Advertisement dated 26.02.2013 (Anx.12) may kindly be quashed and set aside and the respondents may kindly be directed to consider the candidature of the petitioner for the said post; (b). the action of the respondents in not providing bonus marks to the petitioner while preparing merit for appointment on the said post in pursuance of the vacancies advertised may kindly be quashed and set aside and the respondents may kindly be directed to provide the highest bonus marks i.e. 15 marks in favour of the petitioner for preparing her merit, deeming her contractual appointment from the date ordered by this Hon'ble Court in previous writ petition i.e. w.e.f. the date on which the lesser meritorious persons were granted the contractual appointment; (c). the respondents may kindly be directed to provide appointment to the petitioner on the said post in the said recruitment process as per her merit, after granting the highest bonus marks in favour of the petitioner, w.e.f. the date on which lower meritorious candidate than the petitioner has been granted appointment, with all consequential benefits; (d). any other writ, order or directions as this Hon'ble Court deems just, fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner; AND (e). cost of this writ petition be awarded in favour of the petitioner." 2. The petitioner was having the requisite qualification, and therefore, she contested for the post of General Nursing Midwife (GNM) in pursuance of the advertisement issued by the respondents on 08.08.2007. The petitioner secured 64.047% marks in the merit. When the respondents issued the merit list on 04.09.2008, the persons, who secured lesser marks, to the extent of 63.276%, than the petitioner, were given appointment. The petitioner preferred S.B. Civil Writ Petition No. 1288/2013 (Priyanka Choudhary v. State & Ors.), which was decided by this Hon'ble Court on 24.07.2013, in the same terms as that of Mohd. Imran v. State & Anr. (S.B. Civil Writ Petition No. 9450/2008, decided on 21.11.2012). 3. The relevant portion of the judgment rendered in Mohd. The petitioner preferred S.B. Civil Writ Petition No. 1288/2013 (Priyanka Choudhary v. State & Ors.), which was decided by this Hon'ble Court on 24.07.2013, in the same terms as that of Mohd. Imran v. State & Anr. (S.B. Civil Writ Petition No. 9450/2008, decided on 21.11.2012). 3. The relevant portion of the judgment rendered in Mohd. Imran (supra) reads as under:- "......In view of Para 5 of the reply filed by the respondents, this writ petition is allowed and the respondents are directed to provide appointment to the petitioner from the date the candidates having lesser percentage of marks have been provided appointment which is 4.9.2008 in accordance with law. However, the petitioner will not be entitled for any back-wages because appointment has been made on contract basis and petitioner did not work during the pendency of this writ petition." 4. Thus, the petitioner was entitled to be provided appointment with effect from 04.09.2008, and though she would not be entitled for back wages, but her appointment was to relate back to 04.09.2008. 5. Subsequently, the petitioner joined as GNM on 04.06.2008 at Urban Health Centre (RCH), New Parihar Nagar, Bhadwasiya, Jodhpur run by a Non Governmental Organization, namely, Jyoti Vikas Shikshan Sansthan, Pipar City, District Jodhpur. The petitioner continued to discharge such duties until 31.03.2011, and was given appropriate experience certificate for the same. 6. The compliance of the aforementioned judgment dated 24.07.2013 was made on 17.03.2015, whereby the petitioner was granted posting at Primary Health Centre, Jaloda, Block Pokaran by the Block Chief Medical Officer, Pokaran, District Jaisalmer. 7. Subsequently, the Government of Rajasthan issued another advertisement on 26.02.2013 for direct recruitment against 15773 vacant posts of Nurse Grade II. 8. Rule 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 entitled the petitioner for experience to the extent of 10 bonus marks each for a particular year. 9. The petitioner participated in the aforesaid selection process, but was not granted bonus marks for her experience. The petitioner, who belongs to OBC (Women) Category, secured 54.45% marks, and if she was given 15 bonus marks for her experience, then her marks shall be 69.45%, which is above the cut off marks i.e. 61.73% in OBC (Women) Category. 10. The present writ petition has been preferred with the prayer for grant of bonus marks to the petitioner. 11. 10. The present writ petition has been preferred with the prayer for grant of bonus marks to the petitioner. 11. Learned counsel for the petitioner has pointed out that since the petitioner was entitled to be given bonus marks for her experience with effect from 04.09.2008 in accordance with the aforementioned judgment rendered in Mohd. Imran (supra)/Priyanka Choudhary (supra), therefore, the petitioner was having three years' experience. 12. Learned counsel for the petitioner further pointed out from the judgment rendered in Mohammed Imran v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 2685/2015 decided on 23.04.2016) that the petitioner therein had been given bonus marks for the deemed experience with effect from 04.09.2008. The relevant portion of the said judgment reads as under:- "The fact that the petitioner was entitled to be offered contractual appointment as a GNM on contractual basis in recruitment process of 2007 is not disputed. The respondents in the petitioner's earlier writ petition being S.B. Civil Writ Petition No. 9450/2008 conceded that the petitioner's name was excluded inadvertently in the selection process. The Court, after considering undisputed facts reached to a conclusion that the candidates having lesser marks than the petitioner were provided appointment in the recruitment process whereas the petitioner was wrongfully denied. Consequently the Court while allowing the writ petition, directed that the petitioner be provided appointment in the recruitment process. In view of the above quoted portion of the order dated 21.11.2012, it cannot be disputed that the appointment of the petitioner in the said selection process has to relate back to the year 2008 by fiction of law. The petitioner is an OBC category candidate hailing from a poor family. In order to earn livelihood and for his very survival, the petitioner was constrained to look elsewhere for source of employment and consequently he sought and was granted appointment as Staff Nurse in Bundelkhand Medical College, Sagar. The only reason for which the petitioner had to look beyond his parent State for source of livelihood is the illegal and arbitrary conduct of the respondents. Had the respondents acted fairly, the petitioner should have been appointed as GNM way back in the year 2008 and thus would have gained 5 years experience by the time the current notification was floated. Thus, the ratio of the judgment rendered by the Division Bench in the case of Jagdish Prasad & Ors. Had the respondents acted fairly, the petitioner should have been appointed as GNM way back in the year 2008 and thus would have gained 5 years experience by the time the current notification was floated. Thus, the ratio of the judgment rendered by the Division Bench in the case of Jagdish Prasad & Ors. v. State of Rajasthan & Ors. (supra) wherein the Division Bench has held the provisions of Rules of 1965 inasmuch as they make a classification in the employees working within the State and those working outside to be justified, has no application to the peculiar and special facts of the present case. Undisputedly, the petitioner was forced to work as a Staff Nurse in Bundelkhand Medical College for three years owing to illegal conduct of the respondents and thus they cannot deny the benefit of such experience while evaluating the petitioner's claim for appointment as Nurse Gr.II in the questioned recruitment process. The experience gained by the petitioner while working as a Staff Nurse at the Bundelkhand Medical College has to be accounted for the purpose of granting bonus marks to the petitioner. Otherwise also, in view of the above quoted portion of this Court's order dated 21.11.2012 passed in petitioner's earlier writ petition, he is entitled to be given benefit of deemed experience from 4.9.2008 onwards. Consequently, the writ petition deserves to be and is hereby allowed. The respondents are directed to account for the three years experience gained by the petitioner in Bundelkhand Medical College and to extend him benefit of appropriate bonus marks while assessing his candidature for appointment as a Nurse Gr.II in the questioned recruitment process. The exercise as directed above shall be completed within a period of two months. The petitioner if found qualified and meritorious shall be offered appointment as a Nurse Gr.II in the questioned recruitment process. No order as to costs." 13. Learned counsel for the respondents however has taken the plea that the petitioner did not submit her documents in time and was having the employment with an NGO, and therefore, her experience was not in conformity with Rule 19 of the Rules of 1965. 14. No order as to costs." 13. Learned counsel for the respondents however has taken the plea that the petitioner did not submit her documents in time and was having the employment with an NGO, and therefore, her experience was not in conformity with Rule 19 of the Rules of 1965. 14. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, this Court is of the opinion that an order was operating in favour of the present petitioner i.e. Priyanka Choudhary to the effect that her appointment had to relate back to 04.09.2008, when a person having lesser marks than her was given contractual appointment on the post of GNM. 15. This Court has further taken note of the fact that the actual appointment in pursuance of such order in favour of the petitioner was given on 17.03.2015. The experience of work of the present petitioner with the NGO would not matter in this case, as in the orders discussed above, including Mohd. Imran (supra) whereby the petitioner therein had been given the benefit of deemed experience by this Hon'ble Court w.e.f. 04.09.2008 and the present petitioner also had the same benefit arising out of the aforesaid order passed in her favour, and thus, she was entitled for deemed experience w.e.f.04.09.2008, in light of the aforesaid judgment rendered in Mohd. Imran (supra) and Priyanka Choudhary (supra). 16. If the experience acquired by the petitioner as GNM was to be counted w.e.f. 04.09.2008 as deemed experience by fiction of law, then the objections taken by the respondents regarding her experience with the NGO, the documents not being furnished etc., cannot be accepted. 17. Thus, in light of the aforesaid precedent law, the present writ petition is allowed and the respondents are directed to consider the appointment of the petitioner on the post of Nurse Grade II in pursuance of the advertisement dated 26.02.2013, while taking into account her deemed experience as GNM w.e.f. 04.09.2008, when the lesser meritorious persons than the petitioner were given appointment, and an order to this effect was also passed by this Hon'ble Court. Thus, if the petitioner falls in merit in the present selection process, then she shall be given appointment on the post of Nurse Grade II, if she otherwise is eligible and qualified, within a period of two months from today. It is made clear that no retrospective benefit whatsoever would be admissible to the petitioner.