AI Structured Summary
Not yet generated for this judgment
Judgment
SBCWP No.2622/2018 has been filed by the petitioner aggrieved against the order dated 2.1.2018 (Annex.P/9), whereby, the representation made by the petitioner seeking appointment on the post of LDC pursuant to recruitment, 2013, has been rejected.
SBCWP No.3769/2018 has been filed by the petitioner questioning the legality and validity of the order dated 13.3.2018 (Annex.14), whereby, the appointment accorded to the petitioner by order dated 4.9.2017 on the post of LDC, has been cancelled holding that the petitioner was not entitled for award of bonus marks.
The petitioners, who were working as 'Care Giver' with the Sarva Shiksha Abhiyan applied for the post of LDC pursuant to recruitment, 2013 (Annex.3 in CW 2622/2018).
Initially, on account of the fact that the computer qualification i.e. RSCIT obtained by the petitioner - Pushkar Garg was dated 1.6.2013, the petitioner was denied appointment. However, subsequent thereto, the respondents on their own vide Circular dated 30.10.2017 came to the conclusion that those who obtained the requisite qualification of RSCIT by 1.6.2013 were eligible. When the candidature of the petitioner was not considered by the respondents based on the said stipulation, he approached this Court by filing SBCWP No.14774/2017, which was decided on 15.11.2017, requiring the respondents to consider the petitioner's computer qualification in terms of Circular dated 30.10.2017.
Pursuant to the order dated 30.10.2017, by order dated 2.1.2018 (Annex.P/9 in CW 2622/2018), the respondents rejected the representation made by the petitioner observing as under:-
"माननीय राजस्थान उच्च न्यायालय के उक्त निर्णय की पालना में विभागीय पत्र क्रमांक 4067, दिनांक 30.10.2017 की पालना में श्री पुष्कर गर्ग का कम्प्यूटर प्रमाण पत्र (RSCIT) 01 जून 2013 का होने से स्वीकार किया गया है, परन्तु विज्ञप्ति के बिन्दु संख्या 08 के उप बिन्दु 11 में वर्णित पदों में केयर गिवर का पद नहीं होने से श्री पुष्कर गर्ग कनिष्ठ लिपिक सीधी भर्ती 2013 के अन्तर्गत कनिष्ठ लिपिक के पद पर चयन की पात्रता नहीं रखता है। अतः यह निर्णय लेते हुए याची के अभ्यावेदन को निस्तारित किया जाता है।"
The said order has been questioned by the petitioner on various grounds inter alia with the submissions that clause 8(xi) has nothing to do with the claim of the petitioner for bonus marks as the said clause pertains to relaxation in age.
Further submissions have been made that the rejection of petitioner's claim for award of bonus marks by indicating that as the post of Care Giver was not indicated in the advertisement, the petitioner was not entitled for award of bonus marks is not justified in view of the judgment of this Court in Anoop Kakra v. State Rajasthan & Anr.: S.B. Civil Writ Petition No.4637/2019, decided on 12.4.2019.
Further submissions have been made in the writ petition that one Bhupendra Kumar Chasta, who was holding the same position i.e. Care Giver, has been accorded appointment by Zila Parishad Rajasmand based on the experience certificate (Annex.10) and, therefore, the denial by the respondents to accord appointment to the petitioner is discriminatory as well and, therefore, the petitioner is entitled for being accorded appointment on the post of LDC.
In reply to the writ petition filed by the respondents, it was pointed out that the appointment of said Bhupendra Kumar Chasta has been cancelled by order dated 13.3.2018 and, therefore, the cause of the petitioner, based on discrimination, does not survive.
Further submissions have been made that as the petitioner does not fulfill the requirements for award of bonus marks, the same has been rightly denied to the petitioner and, therefore, the petition deserves dismissal.
As the respondents on account of filing of the writ petition (CW 2622/2018) and indicating appointment having been granted to Bhupendra Kumar Chasta, cancelled his appointment, Bhupendra Kumar Chasta has filed SBCWP No.3769/2018 questioning the validity of the order passed by the respondents on several grounds claiming that the award of bonus marks to the petitioner was justified and that cancellation of his appointment is without any basis.
A reply to the said writ petition has been filed by the respondents inter alia seeking to contend that as the work being undertaken by the petitioner as Care Taker is not similar to that of LDC, post on which the appointment is being sought, the petitioner was not entitled for grant of bonus marks and as the petitioner was wrongly awarded the bonus marks, his appointment has been rightly cancelled.
Learned counsel for the petitioners made submissions that the action of the respondents in denying the award of bonus marks to the petitioners on account of their working on the post of Care Giver under the Sarva Shiksha Abhiyan has no basis.
With reference to the provisions of Clause 11 of the advertisement as well as the judgment in the case of Anoop Kakra (supra), it was submitted that merely because the post of Care giver is not indicated in the advertisement the same is not a reason sufficient for denying the award of bonus marks and, therefore, the action of the respondents in denying the bonus marks / cancelling the appointment accorded to the petitioner, deserves to be quashed and set aside.
Learned counsel appearing for the State vehemently made submissions with reference to the certificate issued to Bhupendra Kumar Chasta (filed as Annex.7 in CW 3769/2018) and the job chart of LDC (filed as Annex.R/1) made submissions that the work being undertaken by the petitioners is not similar to that of LDC and, therefore, the respondents are justified in denying award of bonus marks / cancelling the appointment accorded to the petitioner and, therefore, the petitions deserve to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare look at Clause 11 of the advertisement, which deals with award of bonus marks, insofar as, relevant reads as under:-
"(अ) शैक्षणिक योग्यता एवं अनुग्रह अंक :-
आवेदक का चयन सीनियर सैकेण्डरी परीक्षा में प्राप्तांक प्रतिषत तथा पूर्व में कार्यरत कार्मिकों को प्राप्त होने वाले अनुग्रह अंकों के योग के आधार पर किया जावेगा। राजस्थान पंचायती राज नियम 1996 के संषोधित प्रावधानों के अनुसार मनरेगा अथवा ग्रामीण विकास और पंचायती राज विभाग की किसी योजना में कार्यक्रम अधिकारी/सहायक कार्यक्रम अधिकारी, वरिष्ठ तकनीकी सहायक, प्रोग्रामर, सहायक लेखाधिकारी, कनिष्ठ तकनीकी सहायक, कनिष्ठ अभियन्ता, ग्राम रोजगार सहायक, डाटा एन्ट्री आपरेटर, लेखा सहायक, कनिष्ठ लिपिक, समन्वयक आई ई सी, समन्वयक प्रषिक्षण, कोर्डिनेटर सुपरविजन तथा कम्प्यूटर आपरेटर विथ मषीन (नियोजन अभिकरण के माध्यम से लगे हुओ के सिवाय) पद डी.डी.पी. / डी.पी.ए.पी. के अन्तर्गत जल ग्रहण विकास दल के अभियान्त्रिकी, कृषि, पषुपालन या समाज विज्ञानी सदस्य अथवा निर्मल भारत अभियान (सम्पूर्ण स्वच्छता कार्यक्रम) के अन्तर्गत जिला समन्वयक स्वच्छता / SWSHE ब्लाक कोर्डिनेटर/लेखाकार या कम्प्यूटर/एम.आई.एस.असिसटेंट के पद पर अनुग्रह अंक प्रदान किये जा सकेंगे। उपरोक्त वर्णित किसी भी कार्मिक को एक वर्ष से कम अवधि के अनुभव पर किसी प्रकार का अनुग्रह अंक अनुज्ञात नहीं होगा। नियम 273 राजस्थान पंचायती राज नियम 1996 के प्रावधानों ंके अनुसार अभ्यर्थी द्वारा सीनियर सैकेण्डरी परीक्षा में प्राप्तांकों को 70 प्रतिषत वेटेज दिया जावेगा।"
The source for award of bonus marks is proviso to Rule 273 of the Rajasthan Panchayati Raj Rules, 1996 ('the Rules of 1996'), which 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 MGNREGA or in any other scheme of the Department of Rural Development and Panchayati Raj in the State."
A bare look at the indications made in the advertisement as well as the Rule indicate that several posts have been enumerated therein having totally varied job profiles, inasmuch as, the post of Junior Technical Assistant, Junior Engineer, Data Entry Operator, Computer Operator with Machine etc. have been included. The job profile of Junior Engineer can in no manner be compared with that of Data Entry Operator and/or Computer Operator with Machine, which clearly indicates the intention to award bonus marks to those serving with the department at a certain level irrespective of their job profile.
The submission made by learned counsel for the respondents with reference to the job chart of LDC filed as Annex.R/1 has no basis, insofar as, the provisions of Rule 273 of the Rules of 1996 are concerned as the same nowhere requires award of bonus marks based on any comparison or similarity with the job chart of LDC.
It would be relevant to indicate that similar provision for award of bonus marks exists under the Rajasthan Medical & Health Subordinate Service Rules, 1965 ('the Rules of 1965'), which inter alia reads as under:-
"Provided that in case of appointment to the posts other than Pharmacist, which are not in the purview of the Commission, merit shall be 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 these 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."
(emphasis supplied)
A perusal of the above provision under the Rules of 1965 shows that bonus marks can be awarded for posts other than Pharmacist having regard to the length of experience on similar work under the Government. No such requirement of experience on similar work under Rule 273 has been indicated, which fortifies the above distinction and the baselssness of the submissions made.
This is not the case of the respondents in the reply that the work of Care Taker being undertaken by the petitioners is not similar to any of the positions, which have been indicated in the advertisement / Rule 273. The indication, which has been made in the order impugned (Annex.P/9 quoted above) is that as the post of Care Giver is not included in the advertisement, the petitioners are not entitled for award of bonus marks.
This court in the case of Anoop Kakra (supra) wherein, the petitioner was working on the post of Gram Vikas Adhikari under the Ajivika Mission and the claim of award of bonus marks was denied, came to the following conclusion:-
"Coming to the nature of service rendered by the petitioner and the requirement of the Rules is concerned, as noticed earlier as per Rules, even a Gram Panchayat Sahayak is entitled for award of bonus marks and admittedly, the petitioner had worked as Gram Vikas Adhikari under the Aajivika Mission, which is a higher position and therefore, apparently, there is no reason for the respondents to indicate that the nature of work undertaken by the petitioner was such that he was not entitled for the award of bonus marks based on his experience."
In view of the order passed by this Court in the case of Anoop Kakra (supra), merely because the post of Care Giver is not included in the advertisement / Rule 273, the petitioners cannot be denied award of bonus marks.
Even in the case of Bhupendra Kumar Chasta, wherein, show-cause notice was issued to the petitioner and the petitioner gave detailed reply, in the order impugned (Annex.14 in CW 3769/2018), nothing was indicated by the respondents as is now being contended in the reply to the writ petition.
The operative portion of the order dated 13.3.2018 reads as under:-
"श्री भूपेन्द्र कुमार चाष्टा को कनिष्ठ लिपिक पद हेतु (महानरेगा अन्तर्गत) जारी विज्ञप्ति पर कार्यालय के आदेष क्रमांक 902 दिनांक 4.9.2017 द्वारा क०लि० के पद पर नियुक्ति दी गई थी। नियुक्ति प्रकरण में दस्तावेजों की पुनर्जांच में यह पाया कि श्री चाष्टा द्वारा एसएसए में केयर गिवर के पद पर कार्य किया है जबकि भर्ती हेतु जारी क०लि० की विज्ञप्ति में उक्त पद बोनस अंक के लाभ के विज्ञापित पात्रता नहीं रखता है। अतः जिला स्थापना समिति बैठक दिनांक 9.3.2018 के प्रस्ताव संख्या 3 के निर्णयानुसार अभ्यर्थी का चयन निरस्त कर नियुक्ति एतद् द्वारा समाप्त की जाती है।"
In view thereof, the attempt made on part of the respondents to shift the ground for rejecting the candidature of the petitioners from non-inclusion of the post in the advertisement / Rule 273 to difference in the job profile of Care Giver with that of LDC, which ground also, as noticed hereinbefore, is baseless, the action of respondents in not according bonus marks to the petitioner in CW 2622/2018 and cancelling the appointment of petitioner in CW 3769/2018 cannot be sustained.
Consequently, the writ petitions filed by the petitioners are allowed.
The order dated 2.1.2018 (Annex.P/9 in CW 2622/2018) is quashed and set aside. The respondents are directed to award bonus marks to the petitioner based on the experience certificate produced by the petitioner, if he is otherwise entitled for the award of such bonus marks. Further, in case, the petitioner is otherwise eligible and stands in merit, he may be accorded appointment in accordance with law. Needful may be done by the respondents within a period of four weeks from today.
The order dated 13.3.2018 (Annex.14 in CW 3769/2018) is quashed and set aside. The petitioner would be entitled to all consequential benefits alongwith continuity in service from the date his services were terminated. Needful may be done by the respondents within a period of four weeks from today.