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2023 DIGILAW 490 (RAJ)

Giriraj Gujrati son of Late Shri Ramchandra Gujrati v. State of Rajasthan, through the Principal Secretary

2023-02-13

KULDEEP MATHUR, SANDEEP MEHTA

body2023
JUDGMENT : (Kuldeep Mathur, J.) 1. The instant intra court appeal is preferred by the appellant-writ petitioner for assailing the order dated 22.12.2022 passed by the learned Single Bench whereby, the writ petition seeking a direction upon the respondents to consider the experience certificate issued by Social Justice and Empowerment Department in favour of the appellant-writ petitioner for grant of bonus marks against the post of Lower Division Clerk (LDC) pursuant to the advertisement dated 16.02.2013, was dismissed. 2. Briefly stated facts of the case are that the appellant-writ petitioner was appointed as Computer Operator on daily-wages basis by placement agency (Madhu Advertiser’s) on contract basis w.e.f. 01.10.2019 in the office of Assistant Director, Social Justice and Empowerment Department, Bhilwara. By an order dated 02.10.2010, twenty nine activities/schemes of various departments including Social Justice and Empowerment Department were transferred to the Department of Rural Development and Panchayati, Government of Rajasthan with functionaries and funds for their effective implementation, in light of 73rd Amendment to the Constitution of India. The case set up by the appellant is that in furtherance of order dated 02.10.2010, he was directed to work under direct supervision of the officials of Panchayati Raj Department for implementation of the schemes transferred from Social Justice and Empowerment Department. An advertisement dated 16.02.2013 was issued for LDC Recruitment, 2013 wherein a computer operator working with Panchayati Raj Department having experience of more than one year was held entitled for bonus marks seeking appointment on the advertised post. The appellant-writ petitioner submitted the application form and claimed bonus marks for the experience gained by him while working as Computer Operator through placement agency in the respondent-department. The recruiting agency denied bonus marks to the appellant on the count that he was not appointed by Panchayati Raj Department either directly or through placement agency in any of its activities/schemes. 3. The learned Single Bench by the impugned order dated 22.12.2022 dismissed the writ petition filed by the petitioner claiming bonus marks for the experience gained by him holding that he had not worked under MGNREGA or any other schemes of Panchayati Raj Department and therefore, he was not entitled for bonus marks while seeking appointment on the post of LDC, in furtherance of the advertisement dated 16.02.2013. The order dated 22.12.2022 is assailed in this intra court appeal. 4. The order dated 22.12.2022 is assailed in this intra court appeal. 4. Learned counsel for the appellant vehemently submitted that though the appellant was appointed as Computer Operator through placement agency in Department of Social Justice Empowerment, however after issuance of order dated 02.10.2010, various activities/schemes of Social Justice and Empowerment Department were transferred to Panchayati Raj Department with functionaries and funds, the appellant had worked only under the schemes transferred to Panchayati Raj Department. Learned counsel drew the Court’s attention towards various office orders including office order dated 24.03.2011 to substantiate the fact that the appellant-writ petitioner had worked under various activities/schemes of Social Justice and Empowerment Department transferred to Panchayati Raj Department, while working under direct control and supervision of the authorities of Panchayati Raj Department. Lastly, it was submitted that the purpose of bonus marks/extra marks in any recruitment process is to have inclusion of experienced persons while drawing merit list/select list without compromising knowledge, skill, exposure, concept of task given and procedural knowledge. It would thus be unjust if the appellant-writ petitioner is deprived of bonus marks for the experience gained against his working in the schemes of Social Justice and Empowerment Department transferred to Panchayati Raj Department. It was thus submitted that impugned order dated 22.12.2022 passed by learned Single Bench is unsustainable in the eyes of law. 5. Per contra, learned counsel for the respondents submitted that the experience certificate for working as Computer Operator on contractual basis, was issued to the appellant by the Social Justice and Empowerment Department which is indicative of the fact that the appellant was not appointed by Panchayati Raj Department directly or through placement agency. Learned counsel for the respondents submitted that since appellant had not worked under MGNREGA or any other scheme of the Panchayati Raj Department, he was not entitled for bonus marks for the experience, he has gained. Lastly, it was submitted that the experience certificate and other documents relied upon by the appellant do not refer to any scheme which was transferred to Panchayati Raj Department from Department of Social Justice and Empowerment. He thus urged that the view taken by the learned Single Bench dismissing the writ petition by the impugned order dated 22.12.2022 does not warrant any interference by this Court 6. He thus urged that the view taken by the learned Single Bench dismissing the writ petition by the impugned order dated 22.12.2022 does not warrant any interference by this Court 6. We have given our thoughtful consideration to the submissions advanced at bar and, have carefully perused the impugned order and the documents placed on record. 7. Second proviso to Rule 273 of Rajasthan Panchayati Raj Rules, 1996, introduced by Government of Rajasthnan, vide notification dated 29.01.2013, reads as under:- “Provided also that in case of appointment to the post of Lower Division Clerk, merit shall be prepared by the Appointing Authority on the basis of such weightage as may be specified by the State Government for the marks obtained in Senior Secondary or its equivalent examination and such marks as may be specified by the State Government having regard to the length of experience exceeding one year acquired by persons engaged on the post 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, Coordinator Supervision, other than through placement agency, in MGREGA or in any other scheme of the Department of Rural Development and Panchayati Raj in the State.” 8. The word ‘experience’ as defined by Merriam Webster Dictionary reads as follows:- “practical knowledge, skill, or practice derived from direct observation of or participation in events or in a particular activity” 9. The object of providing bonus marks in recruitment process is to place candidates having sufficient experience of working in connection with the Panchayati Raj Department on contractual/ad- hoc basis in an advantageous position in the recruitment process so as to have skilled, focussed and disciplined candidates suitable for the post, while acknowledging services rendered by them in the activities/schemes of Rural Development and Panchayati Raj Department. 10. It is not in dispute before us that the controversy with regard to entitlement for bonus marks to a person having worked through placement agency has already been set to rest by a co-ordinate Bench of this Court in the case of Mitendra Singh Rathore & Ors. vs. State of Rajasthan & Ors. (D.B. C.W.P. No.1723/2013), decided on 30.07.2013, observing that weightage/bonus marks against the experience is also required to be extended to the persons employed through the placement agencies. 11. vs. State of Rajasthan & Ors. (D.B. C.W.P. No.1723/2013), decided on 30.07.2013, observing that weightage/bonus marks against the experience is also required to be extended to the persons employed through the placement agencies. 11. It is also not in dispute before us that vide order dated 02.10.2010, various activities/schemes run by Social Justice and Empowerment Department were transferred to Panchayati Raj Department with functionaries and funds. 12. The objections raised by the counsel for Department of Rural Development and Panchayati Raj were that the appellant was neither appointed under MGNREGA nor in any other scheme of the Panchayati Raj Department directly or through placement agency; the salary of the appellant was paid from the funds of Social Justice and Empowerment Department. 13. From the record of the case, it is apparent that after issuance of order dated 02.10.2010, whereby various activities/schemes of Social Justice and Empowerment Department stood transferred to Panchayati Raj Department with functionaries and funds, the appellant was asked to work as Computer Operator in connection with the transferred activities/schemes. Though, the principal employer of the appellant was Department of Social Justice and Empowerment, but since appellant had worked and acquired experience while rendering services under various schemes relating to Panchayati Raj Department, after issuance of order dated 02.10.2010, it would be improper and unjust if this procedural aspect is allowed to defeat the ends of substantial justice while making an unreasonable classification. 14. The objections raised by the counsel for the respondents are not sustainable particularly when, the petitioner had mostly worked with Panchayati Raj Department after order dated 02.10.2010. Consequently, the impugned order dated 22.12.2022 passed by the learned Single Bench in writ petition is reversed. 15. In the result, the special appeal is allowed. The respondents are directed to consider candidature of the appellant against the post of LDC pursuant to advertisement dated 16.02.2013 by awarding bonus marks qua experience certificate dated 04.01.2013 issued in his favour for working on the post of Computer Operator in the transferred activities/schemes of the Department of Rural Development and Panchayati Raj. It is further directed that if petitioner falls in merit, then he shall be given appointment from the date, persons lower in merit to him were accorded appointment. The appellant however shall not be entitled to any back wages. 16. No order as to costs.