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2024 DIGILAW 595 (RAJ)

Allahnoor Khan v. State of Rajasthan

2024-04-15

ARUN MONGA

body2024
ORDER : Mr. Arun Monga, J. - The petitioner's grievance herein inter alia arises from the impugned order dated 31.07.2023 (Annex.16), vide which petitioner's representation was rejected by declining him the requisite bonus marks as per actual length of his work experience by excluding Sundays and Holidays from for the period he had worked. Ostensible ground in addition is that he has not provided any evidence whether he worked as a Lab Assistant or Lab Technician. 2. Relevant facts first. Petitioner since 13.11.2013 had been serving as a Lab Technician on a contractual basis and he applied for the post of Lab Assistant pursuant to an advertisement issued on May 29, 2018. The advertisement specified bonus marks for experience. The petitioner possesses 4 years, 7 months, and 15 days of work experience. Despite being listed for document verification and meeting the eligibility criteria, an office order dated September 5, 2019, forwarded incorrect work experience details by excluding Sundays and Holidays while calculating the total period of work experience. Multiple representations highlighting the petitioner's eligibility and correct bonus qua length of work experience, were turned a blind eye. Finally, by impugned order dated 31.07.2023, the respondent authorities rejected the representation of the petitioner. Hence, this writ petition. 3. In the aforesaid backdrop, I have heard the rival contentions and perused the case file. 4. The controversy raised herein is no more res integra. Reference may be had to judgment rendered by a Coordinate Bench of this Court in the case of Suresh Choudhary v. State of Rajasthan & Ors. : S.B. Civil Writ Petition No.5694/2021 decided on 14.07.2023, which reads as below:- "1. By way of the present writ petition, the petitioner has raised a grievance that while considering his candidature, respondents have not awarded him bonus marks regardless of the fact that he has worked for more than 392 days. 2. The facts narrated briefly are that the petitioner vied for the post of Lab Technician pursuant to the Recruitment Notification dated 12.06.2020. Alongwith the application form, the petitioner claimed 10 bonus marks for having worked for 392 days as Lab Technician under 'Mukhyamantri Nishulk Janch Yojna'. In support of his claim, he furnished two certificates Nos. 8019 and 8020 dated 13.07.2020. 3. On declaration of result, the petitioner was accorded 47.792 marks, while cut off for OBC category was 48.73. 4. Alongwith the application form, the petitioner claimed 10 bonus marks for having worked for 392 days as Lab Technician under 'Mukhyamantri Nishulk Janch Yojna'. In support of his claim, he furnished two certificates Nos. 8019 and 8020 dated 13.07.2020. 3. On declaration of result, the petitioner was accorded 47.792 marks, while cut off for OBC category was 48.73. 4. The petitioner has approached this Court with the grievance that the respondents have erred in not giving him 10 bonus marks, on the pretext that his actual working days after deducting 53 days weekly offs were 339. 5. The fact that the petitioner has not been awarded bonus marks is not in dispute. The only question, which requires to be decided by this Court is, as to whether the weekly holiday (Sunday) and National Holidays etc. can be excluded while calculating experience for the purpose of bonus marks? 6. The answer to this question does not require any detailed deliberation. As per the Labour Laws, all organizations/institutions/enterprises etc., whether government owned or private are, required to observe weekly offs or are bound to allow one weekly off to each employee. If the petitioner was allowed a weekly off by the respondent themselves, his experience cannot be counted hyper-technically by excluding such day offs. The State's action of calculating petitioner's working days to be 339 (324+15) days and considering such period to be the actual working days is clearly illegal and violative of petitioner's fundamental rights. 7. If 53 days of weekly offs are added in the petitioner's actual number of working days i.e. 339 as per two experience certificates (Annexure-3), the petitioner's total number of working days comes to 392 days, which is obviously more than a year. 8. To provide or allow holiday of Sunday or weekly off is a statutory duty of all the employers including State Government. section 13(1)(b) of The Minimum Wages Act, 1948 and notifications issued by the appropriate Government from time to time enjoin upon the State Government/employer to give one paid holiday to the employee every week. The weekly off cannot be equated with a leave which an employee takes after it being sanctioned. Such weekly off is observed or required to be given by the organizations itself, without the employee demanding it. The weekly off cannot be equated with a leave which an employee takes after it being sanctioned. Such weekly off is observed or required to be given by the organizations itself, without the employee demanding it. Hence, such days of weekly offs cannot be deducted while calculating the experience or counting the number of days a candidate has worked. The respondent's stand is both, contrary to law and arbitrary, given that the experience is to be counted on yearly basis as per Rule 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965. 9. Almost similar view has been taken by this Court in the case of Mahipal Lakhera v. State of Rajasthan & Ors. : S.B. Civil Writ Petition No. 2577/2020 decided on 11.01.2021. 10. As a consequence of above deliberation, the present writ petition is allowed. 11. The respondents are directed to give 10 bonus marks to the petitioner and offer him an appointment (if he is otherwise eligible), by 31.08.2023 12. It is to be noted that by way of interim order dated 27.05.2021, one post of Lab Technician in petitioner's category (OBC) was ordered to be kept vacant. If the petitioner is found eligible, he be given appointment against such post and if he is ineligible, such post be filled up in accordance with law. 13. Stay application also stands disposed of." 5. Having seen the facts of the instant case, it turns out that the petitioner herein is similarly situated. 6. Accordingly, I see no reason, why the benefit of the aforesaid judgment be also not accorded to the petitioner. 7. It is so ordered 8. The instant writ petition is allowed in same terms as judgment ibid with consequences to follow. 9. Before parting, I may also hasten to add here that whether petitioner worked as a Lab Assistant or Lab Technician is irrelevant, in view of another judgment rendered by this Court in the case of Narendra Barwal v. State of Rajasthan & Ors. : S.B. Civil Writ Petition No.1669/2022 decided on 05.05.2022. Having perused the aforesaid judgment, I am in respectful agreement with the views expressed therein by my learned Brother Arun Bhansali J., (as he then was in this Court). : S.B. Civil Writ Petition No.1669/2022 decided on 05.05.2022. Having perused the aforesaid judgment, I am in respectful agreement with the views expressed therein by my learned Brother Arun Bhansali J., (as he then was in this Court). From the import of the judgment, it is clear that whether the work experience is on the post of Lab Technician or Lab Assistant (), it is insignificant as long as the candidate has worked in the laboratory since duties of Lab Assistant and Lab Technician are similar and overlapping in nature. 10. As an upshot, the impugned order dated 31.07.2023 (Annex.16), vide which the representation of the petitioner was rejected is quashed. The respondents are directed to consider the candidature of the petitioner and award him bonus marks as per his entitlement and reassess his performance. Resultantly, subject to his being otherwise found meritorious, subject to the availability of post in question as on today, the petitioner be given benefit of his performance. 11. Pending applications, if any, stand disposed of.