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2019 DIGILAW 2333 (RAJ)

Sandeep Kumar Saini v. State of Rajasthan

2019-08-29

S.RAVINDRA BHAT, SANJEEV PRAKASH SHARMA

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JUDGMENT : S. Ravindra Bhat, J. 1. Common questions arise in all these petitions which challenge the denial of equivalence to certain class of candidates and bonus marks to various categories of medical service- related professionals (Laboratory Assistants and Pharmacists) seeking employment in the State through advertisement issued by the Rajasthan Public Service Commission. The first batch of writ petitions (including D.B. CWP No. 12838/2018) challenge the amendment to the Rajasthan Medical and Health Subordinate Service (Second Amendment) Rules, 2018, which in prescribing minimum qualification, narrowed three years' experience as Laboratory Assistant in State Government Hospitals on contract basis or through Service Provider Agencies. This is called ("the first batch" hereafter). 2. In the second category of writ petitions, the challenge is to amendments to concerned Recruitment Rules to the extent they confine award of bonus marks to a few specific category of employees who had worked in the health sector, such as Cooperative Societies, NGOs, ECHS and Paramilitary Forces (in relation to selection and recruitment to the post of Pharmacists and Lab Assistants respectively). In this batch (which includes D.B. CWP No. 12838/2018), it is contended that exclusion of relevant experience with other employers is arbitrary and discriminatory. 3. The petitioners in the first batch draw to the attention of the court that by notification dated 28.06.2013, apart from the educational qualification prescribed (as essential), i.e. Secondary or its equivalent with a diploma/certificate course in Medical Lab Technician from an institute recognized by the state government, the rules provided an option (apart from the secondary school certificate) of "one year's experience in medical lab run by State Government." This, it is submitted was the subject matter of previous writ petitions, when the leading to the decision by a Division Bench of this Court earlier. In the course of those proceedings, reliance was placed upon a letter dated 08.02.2016, which had stated that the stand of the State of Rajasthan was that "Government" under Rajasthan General Clauses Act, 1955, meant both, the State and the Central Government. The letter further stated that all authorities falling within Article 12 of the Constitution would be treated as "Government" for the purposes of the Rajasthan Medical & Health Subordinate Service Rules, 1965. 4. The letter further stated that all authorities falling within Article 12 of the Constitution would be treated as "Government" for the purposes of the Rajasthan Medical & Health Subordinate Service Rules, 1965. 4. It is submitted that the impugned rules have now sought to resile from the previously settled position, and have resulted in a large section of Lab Technicians and Assistants being rendered ineligible, inasmuch as apart from the educational qualifications prescribed, i.e. (a)(i) Senior Secondary with science or its equivalent or (ii) Any Diploma in Medical Laboratory Technology from an institute recognized by the State Government or (b) having minimum three years' experience of working as Laboratory Assistant, Laboratory Technician in State Government Hospitals on contract basis or through Service Provider Agency, shall also be eligible. 5. It is argued by learned counsel for the petitioners in the first batch, that the rules have created an extremely anomalous and arbitrary situation whereby experience of employees working in autonomous organizations, and societies funded by the state government, or even employees in the central organizations, such as ECHS, or other statutory corporations, stand excluded. It is submitted that there is no rationale for this exclusion, because the duties performed by such excluded category of individuals is no different from those employed by the state. It is pointed out on behalf of the petitioners, that the discrimination is stark and writ large on the face, if one considers the fact that not only those working as employees of the state government, but those employed through service providers, for state run hospitals, are deemed eligible, as long as they have three years' experience. 6. Learned counsel also argued that the impugned amendment is ex facie arbitrary, because there is no change of circumstance. Counsel emphasizes that the state had of its own accord, through letter dated 8th February, 2016, given an expanded interpretation to what is meant by "government" as including not only the state government, but also the central government and all authorities or corporations covered by Article 12 of the Constitution of India. Now, without any change in circumstances at all, the state has altered its position, denying - in a wholly arbitrary fashion, equal opportunity to secure public employment to all class of public employees. The impugned rules it is submitted, are violative of Articles 14 and 16 of the Constitution of India. 7. Now, without any change in circumstances at all, the state has altered its position, denying - in a wholly arbitrary fashion, equal opportunity to secure public employment to all class of public employees. The impugned rules it is submitted, are violative of Articles 14 and 16 of the Constitution of India. 7. The petitioners counsel argue that the interpretation of what constitutes "Government" was a subject matter of the decision by a Division Bench of this Court earlier. In the course of those proceedings, reliance was placed upon a letter dated 08.02.2016, which had stated that the stand of the State of Rajasthan was that "Government" under Rajasthan General Clauses Act, 1955, meant both, the State and the Central Government. The letter further stated that all authorities falling within Article 12 of the Constitution would be treated as "Government" for the purposes of the Rajasthan Medical and Health Subordinate Service Rules, 1965. This letter was withdrawn, mischievously on 10.02.2017 (after taking note of the judgment in Writ Petition No. 275/2016 which had relied upon a clarification of 08.02.2016). Counsel argue that this withdrawal was motivated and mala fide, because there was practically no change in the fact situation; consequently, the only inference is that such so called "withdrawal" was only to issue the impugned amendment. 8. The first batch of writ petitions also challenge the restriction placed by the amendment to proviso to Rule 19 of the rules, whereby bonus marks are confined to those with "experience on similar work under the Government, National Rural Health Mission and Medi Care Relief Society." It is submitted that such narrowing of the previous experience, to be counted for award of bonus marks, is arbitrary. Counsel argued that there is nothing to distinguish those employed by the government, or those employed in the specified schemes, from others who might be also discharging similar functions in the private, or co-operative sector, or those with central government organizations. 9. It is argued that though the grant of bonus marks is based on discretion in regard to formulation of a policy, the classification made, i.e. those working in specified missions/ programmes or the government, on the one hand, and others, including those working for government schemes, (but who are not eligible for bonus marks) amounts to palpable and hostile discrimination. 10. 10. The state, which resists these writ petitions, argues that each state has its needs and requirements in the health sector on basis of rural and geological area. It urges that the Rajasthan Government conducts several training programmes for the persons working with it, for employees, including those kept on contractual basis and in different schemes controlled by the Government of Rajasthan and Medi Care Society. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the Rajasthan State, including the tribal and arid zones. Such training is mandatory and absenting from it can result in the refusal to renew service contracts. Therefore, the stipulation, through the impugned rules has been framed to tailor to the peculiar needs of the state. 11. It is urged that in a similar case, this Court at the Principal Seat, at Jodhpur considered the circumstances and observed by Order dated 09.02.2016 in DB Civil Writ Petition No. 12942/2015 Jagdish Prasad vs. State of Rajasthan, that:- "From perusal of the record made available, the Government of Rajasthan has conducted several training programmes for the persons working even on contractual basis and under different schemes controlled by the Government of Rajasthan and Medi Care Relief Society. The training programmes mainly pertain to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones. It is also pertinent to note that the participation in such training is mandatory and non-joining of the same may result into non-renewal of service contract. The persons working with Government of Rajasthan and Medi Care Relief Society with experience similar to the work of Nurse Grade-II are posted at different hospitals and other institutions affiliated with the health projects and as such these persons are having a special knowledge of working in the State. A person having such knowledge certainly forms a class different than the persons not having such experience of working in the State. It is also pertinent to note that the benefit extended is only a little weightage on basis of the length of service with experience of working in Rajasthan and not the eligibility. A person having qualification eligibility is entitled to face the process of recruitment irrespective of having any experience or not. It is also pertinent to note that the benefit extended is only a little weightage on basis of the length of service with experience of working in Rajasthan and not the eligibility. A person having qualification eligibility is entitled to face the process of recruitment irrespective of having any experience or not. The experience gained in other States cannot be compared with the working in the State of Rajasthan as every State has having its own problems and issues and the persons trained to meet such circumstances stand on different pedestal. In view of it, we are of the considered opinion that the persons having experience on similar work under the Government, National Rural Health Mission and Medi Care Relief Society form absolutely a different category and the classification made under the proviso impugned is not at all discriminatory." 12. It is urged that the Rajasthan Medical and Health Subordinate Service Rules, 1965 were framed under proviso to Article 309 of the Constitution of India and have the force of law. Rule 2(f) of the Rajasthan Medical & Health Subordinate Service Rules, 1965 defines the Government as under: "(f) "Government" and "State" means respectively, the Government of Rajasthan and State of Rajasthan." 13. The proviso to Rule 19 of the said rules, is as follows: "Provided that in case of appointment to the posts other than pharmacist, which are not in the purview of the commission, made Selby prepared by the 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 the 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 Medi Care Relief Society." 14. It is argued that the petitioners are working as Lab Technician in the ECHS Hospitals or those in co-operative societies are not entitled for bonus marks as they discharging similar work under the Government (the Government i.e. Rajasthan Government), National Rural Health Mission and Medi Care Relief Society. It is argued that the petitioners are working as Lab Technician in the ECHS Hospitals or those in co-operative societies are not entitled for bonus marks as they discharging similar work under the Government (the Government i.e. Rajasthan Government), National Rural Health Mission and Medi Care Relief Society. Counsel highlighted that the award of bonus marks cannot be said to constitute an integral or essential part of the recruitment process, and would depend on the exercise of discretion by the state, in its choice of preferring a certain category of experience, which it might wish to grant such benefit. Such exercise of discretion is dependent on appreciation of the state's own needs for its health sector and the peculiarities of the given society. 15. The state submits that it withdrew the administrative order 08.02.2016 by an order dated 10 February 2018. It is further submitted that administrative order neither overruled nor amended the rules, nor could it do so. The reference of administrative order dated 08.02.2016, counsel stressed, is irrelevant. Learned counsel urged that provisions of the General Clauses Act is inapplicable in the present matter as provisions of Rule 2(f) of the Rajasthan Medical and Health Subordinate Service Rules, 1965 itself defines the "Government" as the Rajasthan government. 16. The State, argued the counsel, is competent to rectify its mistake and this was done by way the order dated 8 February 2016 - evident from the order dated 10 February 2017. Second batch 17. In the second batch, the bonus marks awarded to candidates for recruitment to the post of Pharmacist is in issue. The recruitment and service conditions in respect of Pharmacists is governed by provisions of the Rajasthan Medical and Health Subordinate Service Rules, 1965 (called hereinafter as the Rules of 1965 for convenience). Those rules were notified on 16.3.1966; they provided that the post of Pharmacist is duly encadered and finds mention under the Schedule-I of the said Rules of 1965. The procedure for direct recruitment is concerned, is provided under Part-IV of the Rules of 1965. The Rules of 1965 were amended from time to time through notifications and in respect of experience and service under various departments on the basis of similar work the proviso to Rule 19 was amended so as to enable the existing working employees to have the benefit of bonus marks as provided. 18. The Rules of 1965 were amended from time to time through notifications and in respect of experience and service under various departments on the basis of similar work the proviso to Rule 19 was amended so as to enable the existing working employees to have the benefit of bonus marks as provided. 18. The notification dated 24.11.2011 was issued and the said Rules of 1965 were amended by in 2011 (called hereafter "the amended Rules of 2011"). Under the amended Rules of 2011 the proviso to the Rule 19 was substituted and at that relevant time as well the working experience and length of experience based on similar work under the Cooperative Department and Sahkari Upbhokta Bhandar was not added. The amended proviso to Rule 19 reads as follows: "Provided that in case of appointment to the post of Pharmacist, the written examination shall be conducted by the Appointing Authority and the merit shall be prepared on the basis of marks obtained in such written examination 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 or National Rural Health Mission." 19. After the notification of 24.11.2011 when the recruitment on the post of Pharmacist was initiated and carried out, the candidates/employees working under the Cooperative Department or Sahkari Upbhokta Bhandar complained of hardship because bonus marks were denied to them despite working on the post of Pharmacist/similar work and despite having the big length of experience on working. However, this Court protected their interest. After the notification dated 24.11.2011 and making amended Rules of 2011, by notification, dated 21.2.2012 the Rajasthan Medical and Health Subordinate Service (Amendment) Rules, 2012 (called hereinafter as the 2012 Rules of 2012 for convenience) were framed and the first proviso to Rule 19 (after the 2011 amendment) was substituted. For the purposes of award of bonus marks on the basis of the similar work and length of experience even under the Cooperative Department or Sahkari Upbhokta Bhandar were added. For the purposes of award of bonus marks on the basis of the similar work and length of experience even under the Cooperative Department or Sahkari Upbhokta Bhandar were added. The substituted first proviso to Rule 19 - after the 2011 amendment is as below: "Provided that in case of appointment to the post of Pharmacist, the written examination shall be conducted by the Appointing Authority and the merit shall be prepared on the basis of marks obtained in such written examination 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, Medicare Relief Society, AIDS Control Society, Institutes under Cooperative Department or Sahkari Upbhokta Bhandar." 20. Later, a further notification (dated 6.2.2013) was issued; through it the working experience on similar work of Pharmacists in the Cooperative Department and Sahkari Upbhokta Bhandar were added. On 26.2.2013 an advertisement was issued, setting out benefit of bonus marks to candidates/employees working under the Cooperative Department and the Sahkari Upbhokta Bhandar. The cumulative effect of the advertisement dated 26.2.2013 and the amended rules was that grant of bonus marks on the basis of length of experience on similar work of Pharmacist the bonus marks was permissible to the extent of 10% for one completed year of the experience maximum to 30% bonus marks. 21. The petitioners in the second batch urge that after the amended Rules of 2012 and the advertisement dated 26.2.2013 and further completion of the later recruitment process and strangely the impugned notification was issued on 28.6.2018 in exercise of the powers conferred under the proviso to Article 309 of the Constitution. The 1965 Rules were again amended and in place of existing first proviso to Rule 19 (as existed up till the date of the notification dated 28.6.2018) the following proviso was substituted:- "Provided that in case of appointment to the post of Pharmacist, the written examination shall be conducted by the Appointing Authority/Board and the merit shall be prepared on the basis of marks obtained in such written examination and such bons 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, Medicare Relief Society, AIDS Control Society." 22. It is argued that the substituted first proviso to Rule 19 of the 1965 Rules by the impugned amendment the benefit of bonus marks-having regard to the length of experience on similar work/Pharmacist inter alia under the Cooperative Department and Sahkari Upbhokta Bhandar has been deleted. The petitioners contend that the impugned deletion and subsequent proviso, after amendment is wholly violative of Articles 14, 16 and 21 of the Constitution of India and is arbitrary and illegal and further contrary to the principle of equality before law. Counsel submits that this has resulted in discrimination in as much as by way of amended Rules the benefit to the employees/candidates working under Cooperative Department and Sahkari Upbhokta Bhandar has been taken away and denied. 23. Like in the case of Rule 19 - with regard to grant of bonus marks for Lab Technicians and Assistants, it is urged by the state that the petitioners' claim is without merit. It is argued in this regard that the state consciously wished to award bonus marks to only those Pharmacists who worked with the state, or the Chief Minister, BPL Jeevan Raksha Kosh, National Rural Health Mission, Medicare Relief Society, AIDS Control Society. It is urged again that the award of bonus marks for previous experience or what the public employer determines to be equivalent, or what such employer wishes to accord preference are not matters which fall within the domain of the executive. 24. Counsel for the petitioners relied on B. Manmad Reddy and Others vs. Chandra Prakash Reddy, 2010 (3) SCC 314 , to urge that the distinction between employees who work in the state government or in the specified programmes, and others is artificial and irrational. Therefore, argue counsel, the so called distinction is not based on any intelligible differentia. Likewise, even if that differentia is upheld, it has no nexus with the object of ensuring that experienced persons are recruited. 25. Counsel argued that there is no change in the fact situation to exclude experience gained in working for semi government and autonomous organizations, because such experience is akin to working in the state's department. Furthermore, as far as co-operative societies are concerned, the state funds such organizations to further its medical programmes and missions. The experience gained by its employees therefore, cannot be denied bonus marks, through the impugned amendments. Analysis and reasoning: 26. Furthermore, as far as co-operative societies are concerned, the state funds such organizations to further its medical programmes and missions. The experience gained by its employees therefore, cannot be denied bonus marks, through the impugned amendments. Analysis and reasoning: 26. It is evident from the above facts that in the first batch, the petitioners challenge the qualifying experience criteria, changed through the impugned amendment of 2018. Earlier (with effect from 28.06.2013) the essential qualification for direct recruitment to the post of Lab Assistant was Secondary or its equivalent and a diploma/certificate course in Medical Lab Technician from an institute recognized by the State or, (instead of a diploma/ certificate), one year's experience in medical lab run by the State Government. This has now been substituted by the impugned amendment. The essential qualification prescribed now is a Senior Secondary with Science or its equivalent with any diploma in Medical Laboratory Technology from a State recognized institute. The transitional provision however stipulates that for the first recruitment after the impugned Amendment Rules, in 2018, instead of Senior Secondary with Science or its equivalent, candidates with Secondary or equivalent qualifications with diploma in Medical Laboratory Technology from a State recognized institute (or instead of such diploma), candidates having minimum three years' experience of working as Laboratory Assistant, Laboratory Technician in the State Government Hospitals on contract basis or through Service Provider Agency, would be deemed eligible. 27. The petitioners argument is that preferring only Laboratory Assistants and Laboratory Technicians working in the State Government Hospitals on contract basis or through Service Provider Agencies and not giving similar treatment to the Laboratory Technicians/ Laboratory Assistants, working in the health sector, especially in cooperatives or autonomous and semi-Government institutions, or Central Government organizations (like ESI or ECHS) amounts to arbitrariness. 28. At the outset, this Court is of the opinion that the petitioners claim to equivalence is based upon their experience not in the Government, but in the health sector generally. The petitioners are not able to substantiate that the State, as an employer, is under an obligation to ensure that the work experience that they have gathered, in the cooperative sector or autonomous organizations where they worked for three years, should necessarily be considered. The petitioners are not able to substantiate that the State, as an employer, is under an obligation to ensure that the work experience that they have gathered, in the cooperative sector or autonomous organizations where they worked for three years, should necessarily be considered. Although the State is bound by Articles 14 and 16 of the Constitution of India, yet as a public employer, it is entitled to prescribe qualifications which are suited to its organizations. It can certainly decide in this regard-what counts for qualifying experience. This area is entirely within the domain of the public employer i.e. in this case, the State. 29. What the State appears to have kept in mind is its object in having three years' experience, while prescribing essential qualifications for Lab Technicians/Lab Assistants is that those working on contract basis in state laboratories, government hospitals etc. either directly under contract with the State or through third party agencies, alone would be entitled to treat such experience as equivalent to the other essential conditions. 30. This Court notices significantly that the stipulation with respect to essential qualifications, in the wake of the amendment, is that the concerned candidate should henceforth have possess Senior Secondary with Science or its equivalent and also should possess a diploma in Medical Laboratory Technology from an institute recognized by the State. It is only for the purposes of first recruitment-after the amendment that the qualification is relaxed so to say a Secondary or its equivalent and a diploma in Medical Laboratory Technology from State recognized institution, or instead of the latter, those possessing three years minimum experience as Laboratory Assistant/Laboratory Technicians working on contract with the State or working on contract through placement agencies with the State. Thus, the State appears to prefer those working with its institutions or in the State Departments in its hospitals, though on contract basis. This is apparently aimed at ensuring that through this first recruitment, regular appointment is offered to those deemed eligible in the selection/recruitment process. Having regard to the fact that these individuals worked in various State institutions, on contract basis and also appear to have discharged their duties in many instances, in remote areas and stressful conditions, the choice of the State in preferring these for first recruitment and to accord them permanent/ regular status, cannot, by any means, be characterized as arbitrary or discriminatory. 31. 31. In Roop Chand Adlakha vs. Delhi Development Authority, AIR 1989 SC 307 , after citing State of Jammu and Kashmir vs. Triloki Nath Khosa and Others, (1974) 1 LLJ 121 (SC) held that:- "The State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on Diploma Holders conditioning it by other requirements which may, as here, include certain quantum of service experience. In the present case, eligibility determination was made by a cumulative criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High Court, that the choice of the State was either to recognize Diploma Holders as "eligible" for promotion or wholly exclude them as "not eligible." If the educational qualification by itself was recognized as conferring eligibility for promotion, then the superimposition of further conditions such as a particular period of service, selectively, on the Diploma Holders alone to their disadvantage might become discriminatory. This does not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service experience. It is stated that on the basis of the "Vaish Committee" report, the authorities considered the infusion of higher academic and technical quality in the personnel requirements in the relevant cadres of Engineering Services necessary. These are essentially matters of policy. Unless the provision is shown to be arbitrary, capricious, or to bring about grossly unfair results, judicial policy should be one of judicial restraint. The prescriptions may be somewhat cumbersome or produce some hardship in their application in some individual cases; but they cannot be struck down as unreasonable, capricious or arbitrary. The High Court in our opinion, was not justified in striking down the rules as violative of Articles 14 and 16." 32. The above observations were quoted and applied in Shailendra Dania and Others vs. S.P. Dubey and Others, 2007 (5) SCC 535 . The decision of a state to frame its recruitment policies which might exclude some potential candidates from consideration, per se does not result in discrimination. The left over or excluded category of individuals have to show something apart from the exclusion that the classification was arbitrary or hostile. The decision of a state to frame its recruitment policies which might exclude some potential candidates from consideration, per se does not result in discrimination. The left over or excluded category of individuals have to show something apart from the exclusion that the classification was arbitrary or hostile. The Supreme Court held, in State of Mysore vs. P. Narasinga Rao, AIR 1968 SC 349 , that: "It is settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule. As we have already stated. Articles 14 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Article 16 is only an instance of the application of the general rule of equality laid clown in Article 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection." 33. This court is of opinion that the above decisions clearly hold that the public employer or state has the duty and the right to frame recruitment policies, including with regard to essential qualifications and experience. Unless the classification is shown to be palpably arbitrary, the state's choice in preferring a particular kind of qualification or experience cannot be called arbitrary. For these reasons, the challenge has to fail on this count. 34. Unless the classification is shown to be palpably arbitrary, the state's choice in preferring a particular kind of qualification or experience cannot be called arbitrary. For these reasons, the challenge has to fail on this count. 34. So far as the second batch is concerned i.e. candidates who seek to apply for the post of Pharmacists (as well as those working who wish to apply for the post of Lab Assistant/Lab Technician) and complained of arbitrariness in regard to exclusion of experience, of working with employers or under schemes which are not covered under a programme or scheme specified in Rule 19 of the amended Rules, this Court notices that what is in issue is not the prescription of essential qualification; rather it is the award of bonus marks for previous experience. Such cases stand on even weaker footing than those in the first batch. The State wishes to give preference and award bonus marks, to the employees working in specified programmes or specified employers (National Rural Health Mission, Chief Minister BPL Jeevan Raksha Kosh, Medicare Relief Society, AIDS Control Society). 35. The complaint of the petitioners in both categories i.e. for the post of Pharmacist as well as those aspiring to be selected as Lab Assistant is that the previous policy of granting bonus marks to those working on contract basis in the Rajasthan Cooperative Department or cooperatives or other Central Government organizations, have been excluded. In this regard, the petitioners rely upon a letter of 08.02.2016, which had stated that the definition of "Government" under the Rajasthan General Clauses Act, 1955, includes the Central Government and that for the purposes of grant of bonus marks, individuals working in any organization classifiable and falling within the definition of "State" under Article 12 of the Constitution of India, would be entitled to relief. 36. This Court is of the opinion that the petitioner's complaint of arbitrariness or discrimination in regard to exclusion of bonus marks for having worked as Pharmacist or Lab Technicians in the unspecified categories, i.e. those working in cooperatives, Central Government or some autonomous organizations, is insubstantial. Unlike in the case of equivalence in essential qualifications (where a limited review is permissible, if a claimant can successfully demonstrate that equivalence is a matter of law either through binding enactments or rules framed under it), the award of bonus marks is entirely discretionary. Unlike in the case of equivalence in essential qualifications (where a limited review is permissible, if a claimant can successfully demonstrate that equivalence is a matter of law either through binding enactments or rules framed under it), the award of bonus marks is entirely discretionary. In this regard, it has to be reiterated that no candidate seeking public recruitment has a right to claim preference. That the State or a public employer might fashion its policies in a particular manner to accord preference and consequently award bonus marks to only a specified category of previous experience, cannot be termed arbitrary. The only exception to this can be if award of bonus marks is to entirely unrelated experience i.e. previous experience which has no connection with the duties related to post for which recruitment is to be held. 37. The kind of experience to which bonus marks can now be awarded i.e. NRHM., employment under the State or its hospitals, AIDS Control Society etc. are intrinsically connected with and proximate to the posts of Pharmacists and Lab Technicians/Lab Assistants, working in the State Government. The recruitment is for the State Government. Therefore, the award of bonus marks to the four categories-which are preferred categories, cannot be a matter of judicial review. In this regard the Court is also cognizant of the fact that the State has the exclusive domain over the grant of such bonus marks while according preference to the one class of employees or another as long as the previous experience bares connection to the post or posts for which the recruitment is to take place. 38. In Sachivalaya Dainik Vetan Bhogi Karamchari Union vs. State of Rajasthan, (2017) 11 SCC 421 , the question was the award of preference through bonus marks to candidates who had previously worked on contractual terms with the state, or were still continuing, through a system of weightage, at the stage of regular recruitment. The Court upheld weightage in favour of experience gained during contractual or ad-hoc appointment and observed as follows: "18. The Court upheld weightage in favour of experience gained during contractual or ad-hoc appointment and observed as follows: "18. In spite of a pointed question, the learned counsel for the first respondent could not point out anything in State of Karnataka vs. Umadevi, (2006) 4 SCC 1 : 2006 SCC (L&S) 753, judgment which either dealt with or prohibited the State from giving weightage for the service rendered by the employees where services were used by the State either temporarily or on ad hoc bases (including daily-wage basis) irrespective of the regularity of their initial entry into the service. All that this Court declared in State of Karnataka vs. Umadevi, (2006) 4 SCC 1 : 2006 SCC (L&S) 753, is that such people cannot claim to be appointed automatically on the ground that their services were utilised on temporary basis for considerably long periods. 19. Even with reference to such claims State of Karnataka vs. Umadevi, (2006) 4 SCC 1 : 2006 SCC (L&S) 753, did not declare that in no case such claims should be entertained. This Court opined that there is a justification to consider the case of certain class of employees who have put in 10 years of such service (ad hoc or temporary): (SCC p. 42, para 53) "53.........In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 39. In Dr. M. Shalini vs. The Secretary to Government Health and Family Welfare Department, the question was with respect to grant of bonus marks to candidates who served in rural areas. In Dr. M. Shalini vs. The Secretary to Government Health and Family Welfare Department, the question was with respect to grant of bonus marks to candidates who served in rural areas. The Madras High Court explained the rationale for grant of such bonus marks or preference, in the following terms: "9. The object underlying the award of additional marks is to encourage the medical students to serve in the remote/difficult areas to ensure that access to medical facilities reaches the poor and downtrodden living in the rural areas. An area is being classified as remote/difficult based on various factors and when clause 38 of the prospectus categorically stipulates certain areas as remote/difficult area and the petitioners are admittedly working in rural areas, they are entitled for award of bonus marks. In such circumstances, there will be a direction to the respondents 4 and 5 to award additional/ bonus marks to the petitioners for the services rendered by them in the rural area as per clause 38..." 40. In Public Service Commission, Uttaranchal vs. Jagdish Chandra Singh Bora, (2014) 8 SCC 644 the Supreme Court reiterated that the provision for bonus marks to a class of candidates, or denial of such facility is a matter of policy. The court turned down an argument that grant of bonus marks was necessary in view of a previous Supreme Court judgment which had ruled that employers should give preference to trained apprentices. The Supreme Court held that denial of such preference or bonus marks to trained apprentices was not arbitrary and held as follows: "19. A perusal of the aforesaid would clearly show that all the candidates including the respondents, who applied in response to the advertisement dated 27-11-2001 were governed by the 2001 Rules. Rule 5 provides comprehensive criteria for making a selection to the post of Junior Engineer. The written examination was to be conducted by IIT, Roorkee. The selection was to be made on the basis of the total marks obtained by the candidates in the written examination and the interview. The list of successful candidates of the written examination was to be made available by IIT, Roorkee to PSCU. Thereafter, PSCU was to call the candidates for interview on the basis of minimum qualifying marks in the written examination. The list of successful candidates of the written examination was to be made available by IIT, Roorkee to PSCU. Thereafter, PSCU was to call the candidates for interview on the basis of minimum qualifying marks in the written examination. Section 5(11) provides that PSCU shall prepare a merit list by adding marks obtained by the candidates in the written examination and the interview. If two or more candidates secured equal marks, the candidates securing more marks in the written examination shall be preferred. In case, the marks obtained by two candidates in written examination are also equal, the older candidate shall be preferred to the younger. Therefore, it is evident that consciously the State had not provided for any preference to be given to the trained apprentices under the Rules. Keeping in view the provisions contained in the Rules, the State Government issued an advertisement on 27-11-2001. The advertisement also did not provide for any weightage to be given to the trained apprentices. All the candidates including the respondents participated in the selection process, being fully aware that no preference will be given to the trained apprentices. This was in spite of the directions issued by this Court in U.P. SRTC vs. U.P. Parivahan Nigam Shishukhs Berozgar Sangh, (1995) 2 SCC 1 . Therefore, it cannot be said that any accrued or vested right had accrued to the trained apprentices under the 2001 Rules. 20. The result of the written examination was declared on 10-7-2003. The interview was conducted by PSCU from 18-12-2003 to 22-12-2003. Thereafter, only the result was to be declared and the appointments were to be made on the basis of merit obtained by the candidates in the selection process. 21. As noticed earlier, the 2001 Rules specifically provided that the Rules are applicable only for the direct recruitment in the year 2002 for subordinate engineering services. The Rules also make it clear that the same shall become ineffective after the process of recruitment is completed. Thereafter, the selected candidates shall be governed by the Service Rules and the government orders applicable in the Government. This makes it abundantly clear that on 12-11-2002, the 2001 Rules ceased to exist." 41. There are three other judgments of this Court. In Ram Singh Barwal vs. State of Rajasthan, it was held that such award of bonus marks to only specified categories does not result in discrimination: "16. This makes it abundantly clear that on 12-11-2002, the 2001 Rules ceased to exist." 41. There are three other judgments of this Court. In Ram Singh Barwal vs. State of Rajasthan, it was held that such award of bonus marks to only specified categories does not result in discrimination: "16. Now, we come to the facts of this case to judge the issue as to whether there exists discrimination in the State action, which is violative of Articles 14 and 16 of the Constitution of India? 17. For awarding bonus marks for teaching experience of each year, there exists two groups: (i) Teachers of the private recognized institutions and (ii) Teachers of the educational projects like Para Teachers etc. Whether two categories can be said to be equal is the moot question to be decided. If the answer is that they are equal, then different bonus marks cannot be provided, but at the same time, if two categories are un-equals, definitely they cannot be made equals by providing same bonus marks. The Teachers in the government projects are those who are working in the remote areas not in regular pay scale but are getting honorarium. Their services are co-terminus to the projects. Those projects were brought to increase the literacy in the State, thus persons working in educational projects were to motivate children of the village to come for education. Such Teachers are not entitled for any other benefit than honorarium, thus benefit of gratuity, selection scale, provident fund etc. has not been provided to them. As against the aforesaid, Teachers in the private recognized institutions were entitled to regular pay scale apart from the benefit of gratuity and selection scale etc., in view of catena of the judgments of this Court and the Hon'ble Apex Court. Recognition of those private institutions is subject to award of regular pay scale and other benefit to the Teachers, who are working in the aided or unaided institutions, thus those Teachers generally work in the urban areas. 18. Recognition of those private institutions is subject to award of regular pay scale and other benefit to the Teachers, who are working in the aided or unaided institutions, thus those Teachers generally work in the urban areas. 18. Some of the counsel urged that even few Teachers in the private recognized institutions were not awarded regular pay scale, however, it cannot be taken as a guiding factor because Teachers in the private recognized institutions are otherwise eligible for all benefits as mentioned above and if they failed to take such benefit, it cannot result to their benefit apart from the fact that cases of few Teachers cannot govern the issue. Taking note of aforesaid facts, it clearly comes out that two categories cannot be said to be equal. In view of the aforesaid, different treatment for award of bonus marks can be provided by the Government because it is then based on reasonable classification and otherwise if un-equals are treated as equals, then also it violates Articles 14 and 16 of the Constitution of India. If the issue is judged from other point of view, then appellants have claimed parity with others without showing that they stand on same footing with that of the Teachers in educational projects. In view of aforesaid, we find no error in the judgment of the learned Single Judge. 19. Now, the question comes about the definition of teaching experience. It is submitted that definition of teaching experience provides no difference between a Teacher of educational project than that of a Teacher of a private recognized institution. It is true that perusal of the definition of teaching experience does not provide any difference between Teachers of the recognized institutions than of the educational projects. It is, however, necessary to look into the fact that it is mainly for judging the eligibility under the Rules. Rule 14 of the Rules of 2008 provides academic and professional qualifications of a candidate. For ready reference aforesaid Rule is quoted thus:- "Rule 14. Academic and Professional Qualifications - A candidate for direct recruitment to the posts specified in the Schedule shall, in additional to such experience as is required shall possess:- (i) the qualification and experience given in Column 6 of the schedule. (ii) working knowledge of Hindi written in Devnagri Scripts and knowledge of Rajasthan culture." 20. Academic and Professional Qualifications - A candidate for direct recruitment to the posts specified in the Schedule shall, in additional to such experience as is required shall possess:- (i) the qualification and experience given in Column 6 of the schedule. (ii) working knowledge of Hindi written in Devnagri Scripts and knowledge of Rajasthan culture." 20. Perusal of the aforesaid Rule shows that qualifications and experience would be as given in Column 6 of the schedule. Column 6 of the Schedule provides five years continuing teaching experience without any break in any recognized educational institutions/educational projects. This is apart from the educational qualifications as given therein. The word used under the schedule so as under the Rule is to be given meaning as defined under the Rules of 2008. The respondents have made no discrimination on that count and in fact all those who are having five years continuous teaching experience without any break in any private recognized educational institutional/educational/projects have been given same treatment while judging eligibility. 21. In view of aforesaid discussion, it is not a case where even definition of "teaching experience" as given under the Rules of 2008 has been violated. Thus, we are of the opinion that the administrative action of the respondents cannot be said to be discriminatory or illegal in award of different bonus marks for selection to the post of Prabodhak." 42. Again, in Mool Chand Jat vs. State of Rajasthan, (2013) 3 RLW 2494, award of bonus marks to Pharmacists, with a certain kind of experience in the Government, was upheld: "8. The benefit of bonus marks has been given under amended Rule 16 to the Pharmacists, who have obtained the experience of Government Schemes/Institutions under Cooperative Department or Sahakari Upbhokta Bhandar. Experience gained in private job has not been included for grant of bonus marks. In our opinion, private job stands on different footing and cannot be said to be on similar terms and conditions as rendered in Government Institutions etc. as provided in amended Rule 19. The private Pharmacists cannot be treated of same class, hence, they cannot take plea of discrimination. It is open to the State Government to give bonus marks to particular class of person. As there is difference in conditions, liabilities, requirement of job, the petitioners cannot claim similar treatment. The classification made by the Government cannot be said to be illegal or arbitrary. It is open to the State Government to give bonus marks to particular class of person. As there is difference in conditions, liabilities, requirement of job, the petitioners cannot claim similar treatment. The classification made by the Government cannot be said to be illegal or arbitrary. It is open to the Government to classify person for such purpose. Classification made cannot be said to be irrational. Article 14 permits classification on different bases. The responsibility of Government job/cooperative is different than private job. Since there is qualitative difference also in jobs, classification cannot be said to be arbitrary. We are not able to accept the submission that private work can be equated in all respects with the jobs enumerated in amended proviso to Rule 19 of the Rules of 1965. The condition of service responsibility differs from job to job, thus, private Pharmacists cannot claim part of the same class. Hence, plea of discrimination is not available to them. ********************* 12. In view of the above, if benefit of bonus marks has been extended only to the Pharmacists, who have gained experience under the Government Institutions, Cooperative Department, Sahakari Upbhokta Bhandar etc. as enumerated in the amended Rule 19 of the Rules of 1965 and such benefit has not been made available to the private Pharmacists, who have gained experience in private institutes/shops, it cannot be said that action of the Government was arbitrary or violative of Article 14 or 16 of the Constitution of India. Classification made by the Government does not suffer from the vice of arbitrariness, rather it appears to be reasonable and rational one. No case of discrimination is made out. 13. Apart from this, it is apparent that advertisement was initially published on 26.11.2011; later on, amended advertisement was issued on 30.12.2011 and last date for submission of on-line application and hard copy application was fixed as 4.1.2012 and 9.1.2012 respectively. Thereafter, vide notification dated 21.2.2012, amendment in Rule 19 of the Rules of 1965 was made with retrospective effect from 24.11.2011 and in view of the said amendment, a fresh advertisement was issued on 24.2.2012 incorporating award of bonus marks to the candidates, who have gained experience as Pharmacists in Government Institutions etc. Thereafter, vide notification dated 21.2.2012, amendment in Rule 19 of the Rules of 1965 was made with retrospective effect from 24.11.2011 and in view of the said amendment, a fresh advertisement was issued on 24.2.2012 incorporating award of bonus marks to the candidates, who have gained experience as Pharmacists in Government Institutions etc. as enumerated in the amended Rule 19 and last date for submission of on-line application was fixed as 2.3.2012 and for submission of hard copy application, last date was fixed as 12.3.2012. Thereafter, examinations were conducted from 15th to 17th June, 2012 and the result was declared on 29.6.2012." 43. The judgment in Mitendra Singh Rathore vs. State of Rajasthan, 2013 (4) RLW 3451 (Raj.), dealt with a challenge to the denial of bonus marks in respect of experience gained by candidates who were otherwise qualified to participate, by a comparable restricting condition: that such preferential or bonus marks would be awarded in respect of previous employment in government projects or government sponsored schemes. The court held that the classification was reasonable and justified and observed as follows: "17. The experience required under Proviso second of Rule 273 of the Rules of 1996 is on definite posts under definite schemes sponsored by the Panchayati Raj Institutions and under MGNREGA. This too is having a rational as the schemes are required to be implemented with a new vision of development and governance at the grass root level through the Panchayat Raj Institutions as per thrust of the 73rd constitutional amendment and the State enactment made in consonance thereto. The need of experience hands in service, thus, is rational and required, but the issue deserves consideration is that whether the experience earned on the posts aforesaid in the schemes concerned have any distinction on the count of different mode of employment. It is not in dispute that the main requirement of the statutory weightage is experience on certain posts in definite schemes and not the mode of employment. It is also a position accepted that the experience gained on the posts of Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Co-ordinator IEC, Coordinator Training and Coordinator Supervision in MGNREGA or any other scheme of Department of Rural Development and Panchayati Raj is same and that does not differ due to mode of employment. The persons employed directly by the Panchayati Raj Institutions or under MGNREGA or through the placement agencies working on the posts aforesaid in MGNREGA or in other schemes of Department of Rural Development and Panchayati Raj discharge same duties with same responsibilities and liabilities, as such, the experience gained is also same, thus, the experience gained by the persons employed through the placement agencies in no manner can be treated as less or not relevant to have necessary skill, knowledge, insight or any other merit required by Panchayati Raj and Zila Parishad Service. 18. The object of granting weightage to the experienced hands is to have meritorious persons with insight, skill and knowledge of the job and that in no manner shall have adverse effect on giving weightage to the persons who acquired experience on being employed through placement agencies. The classification sought to be made under Proviso Second to Rule 273 of the Rules of 1996 on the basis of mode of employment or to say by denying weightage to the persons employed on posts of Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Co-ordinator IEC, Coordinator Training and Coordinator Supervision through placement agencies in MGNREGA or any other scheme of Department of Rural Development and Panchayati Raj, as a matter of fact, is having no nexus with the object sought to be achieved by granting weightage in the form of bonus marks to the experienced hands, therefore, the classification made under Proviso Second to Rule 273 of the Rules of 1996 on the basis of the mode of employment, is having no rational, hence, is in violation of Article 14 and 16 of the Constitution of India. 19. The distinction sought to be made with the persons employed through the placement agencies is that those were under the control of the placement agencies and, as such, necessary details pertaining to their experience were with the placement agencies only. Much emphasis is given by the respondents that the State Government or the Panchayati Raj Institutions, as the case may be, entered into agreement with the placement agencies leaving it open for the placement agencies to accomplish the task given through the persons employed by that agency without definite identification of the person concern by the Panchayati Raj Institution. Much emphasis is given by the respondents that the State Government or the Panchayati Raj Institutions, as the case may be, entered into agreement with the placement agencies leaving it open for the placement agencies to accomplish the task given through the persons employed by that agency without definite identification of the person concern by the Panchayati Raj Institution. The stand taken by the respondents is not at all acceptable at its face. It is not in dispute that the placement agencies are nothing but contractor to supply labour force. The roll of the labour force supplied through contractor is available with the principal employer i.e. the State Government and different Panchayati Raj Institutions who availed services of such persons through placement agencies. The State Government, as such, is having all necessary details with regard to the work done by the persons employed through the placement agencies. On having these details, measurement of the experience acquired by the persons rendering service in MGNREGA or under different schemes relating to Department of Rural Development and Panchayati Raj can very well be assessed by the respondents. In any case, this procedural problem can not be a reason valid to make an unreasonable classification. At this stage it is also pertinent to note that the Panchayat Raj Institutions have already issued experience certificates to the persons employed through placement agencies." 44. This Court is of the opinion that the weight of judicial authorities overwhelmingly lies against the petitioners. It is also noteworthy that the petitioners are candidates for public employment; they are demanding that the experience gained by them (not in the government or in its departments) should be awarded bonus marks. Neither Article 14, nor Article 16, in the opinion of the court would aid them to argue that fashioning a recruitment policy which factors bonus marks for specified categories of experience gained can, to the extent it excludes any experience be termed discriminatory. Those who work in government establishments or the specified categories of public employment, form a distinct class, which the state wishes to prioritize, in considering for selection, for its hospitals and medical establishments. This decision falls within the realm of executive policy, over which the court is ill equipped to judge on the merits. 45. This Court is further un-persuaded with the petitioners' argument as regards withdrawal of the letter dated 08-02-2016. This decision falls within the realm of executive policy, over which the court is ill equipped to judge on the merits. 45. This Court is further un-persuaded with the petitioners' argument as regards withdrawal of the letter dated 08-02-2016. That letter no doubt, advanced an interpretation that for state employment (i.e. Rajasthan Civil Service Rules) all experience gained in departments of the state as well as corporations and bodies falling within the wider description of "State" under Article 12 are relevant. However, this concession was withdrawn. This court cannot fault the state for withdrawal of that letter, because the Rules clearly envision a narrow definition of "Government" and confine the expression to the Government of Rajasthan. Therefore, the state was correct in not extending parity to employees of Central government or autonomous institutions etc. Likewise, the exclusion of experience gained in corporations and co-operative societies cannot be termed as arbitrary. 46. In view of the above discussion, this Court holds that there is no merit in the challenge to the amendments, in both batches of writ petitions. All the writ petitions are accordingly dismissed the pending applications too are disposed of.