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Judgment
Mr. Manish Patel, learned counsel has filed caveat in the matter.
A copy of the writ petition has been supplied to him.
At the request of learned counsel for the parties, the matter has been finally heard as counsel for the respondents made submissions that the order
dated 24.05.2018 (Annex.7) is a speaking order, wherein all reasons have been indicated.
This writ petition has been filed by the petitioner aggrieved against the order dated 24.05.2018 (Annex.7) and direction to the respondents to consider
the experience of the petitioner in terms of Annex.1 for the grant of appointment to the post of Lower Division Clerk pursuant to the advertisement
dated 14.02.2013. The petitioner was issued experience certificate dated 13.11.2017 indicating experience for the period 21.12.2009 to 18.04.2013 i.e.
for a total period of 03 years, 03 months & 28 days.
Whereafter, the said certificate on account of subsequent developments was modified by the certificate dated 23.02.2018 (Annex.3) reducing the
period of petitioner’s experience for a period of 02 years, 10 months & 04 days though for the same period i.e. 21.12.2009 to 18.04.2013. The
petitioner preferred SBCWP No.3414/2018, which came to be disposed of with a direction to the respondents to consider the additional affidavit
alongwith chart filed by the petitioner in the said writ petition and calculate the experience of the petitioner so as to decide entitlement of bonus marks.
Pursuant thereto, the Programme Officer sent a communication dated 01.05.2018 (Annex.5) indicating the experience of the petitioner as 03 years &
09 days. However, the same was not accepted and the Accounts Officer, Zila Parishad, Udaipur, prepared a chart indicating that for 1047 days the
petitioner was paid the honorarium in his position as Computer Operator with Machine, which was calculated as 02 years, 10 months & 17 days,
based on which, certificate Annex.3 was issued.
Whereafter, order dated 24.05.2018 (Annex.7) has been passed by the respondents inter-alia concluding as under :-
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It is submitted by learned counsel for the petitioner that the action of the respondents in reducing the period of petitioner’s experience based on the
period for which the honorarium was paid to the petitioner is ex-facie illegal. It is submitted that admittedly the petitioner had worked for the period
21.12.2009 to 18.04.2013 on account of which the petitioner was entitled to a certificate for 03 years, 03 months & 28 days. After the controversy
arose, still the Programme Officer indicated the experience of the petitioner at 03 years & 09 days after taking into consideration the unpaid leave of
the petitioner. However, the respondents, based on the period for which the petitioner was paid the honorarium has calculated the experience which is
ex-facie illegal and incorrect.
Submissions have been made that a bare look at the Staff Attendance Register produced as Annex.8 indicates that for the period April, 2010 and
May, 2010, though the petitioner remained absent, he was accorded Medical Leave which is evident from the attendance register, wherein against the
name of the petitioner ‘ML’ has been indicated. However, the said period of 61 days has not been calculated by the respondents by merely
saying that no material was available regarding grant of leave, which is against the record and therefore, the action of the respondents deserves to be
quashed and set-aside.
Learned counsel appearing for the respondent-State supported the order impugned Annex.7. It was submitted that a bare look at the chart indicating
the absence of the petitioner for various periods would indicate that the petitioner has taken extra-ordinary leave without any medical being available
on record and therefore, though the normal procedure is that from the beginning of the experience till last, the experience certificate is issued, in the
case of the petitioner on account of excessive leave taken by the petitioner, the same has been deducted and therefore, the order impugned does not
call for any interference.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare look at the order Annex.7 would indicate that the respondents have chosen to compute the experience of the petitioner based on the
honorarium paid to him, which is contrary to the normal practice of the calculating the experience based on the date of joining till the last date of
service. For the leave period, a indication has been made that the same was prohibited as per the contract, a perusal of the table indicates that the
petitioner had availed the said leave during April, 2010 and May, 2010 after joining on 21.12.2009, however, his services were not terminated and the
petitioner continued to serve till 18.04.2013, when coupled with the fact that in the attendance register ‘ML’ (Medical leave) has been indicated
by the respondents clearly reflects that the petitioner was indeed granted leave during the said period and no action based on such absence was taken
against the petitioner.
In view of the above fact situation, wherein the normal practice has been given a go bye only with a view to somehow reduce the experience of the
petitioner from more than 03 years to less than 03 years so as to deprive him the grant of adequate bonus marks, the action of the respondents in
passing the order dated 24.05.2018 (Annex.7) and issuing certificate Annex.3 cannot be sustained.
Consequently, the writ petition filed by the petitioner is allowed. The amended experience certificate dated 23.02.2018 (Annex.3) and order dated
24.05.2018 (Annex.7) passed by the respondents are quashed and set-aside. The respondents are directed to issue appropriate certificate pursuant to
the report submitted by the Programme Officer dated 01.05.2018 (Annex.5) for 03 years & 09 days and the respondents are further directed to
consider the experience of the petitioner based on the said certificate for grant of appointment on the post of LDC in his category pursuant to the
advertisement dated 14.02.2013.
The needful may be done by the respondents within a period of four weeks from the date of this order.