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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Arun Bhansali, J.
Tayyab Hussain S/o Zulfikar Ali - Petitioner
Versus
State of Rajasthan, Through the Secretary, Department of Medical And Health Services and ors. – Respondents
S.B. Civil Writ Petition No. 1423 of 2022
Decided On : 05-05-2022
Constitution Of India,1950 – Article 226 - Rajasthan Medical and Health Subordinate Service Rules, 1965 - Rule 19 – Canvassing Power of High Court to issue Certain Writs - Whether petitioner was on sanctioned leave and in absence respondents could not have deducted said period, as in case, petitioner was on sanctioned leave – Held, Plea raised that respondents that after Eleven Pointer was submitted by authorities, should have been called upon by authorities to indicate reason for absence of petitioners for days indicated in Eleven Pointer, is baseless, in as much as, once information was received by respondents, there remains no reason for respondents to seek further information, in as much as, information submitted was based on actual payment made to petitioner - To seek further information, is essentially to keep recruitment pending forever, inasmuch as, recruitment even otherwise is already delayed for over years – Petition dismissed.
ORDER :
1. This writ petition has been filed by the petitioner seeking a direction to the respondents to issue a fresh experience certificate to the petitioner after adding leave and grant bonus marks after calculation of leave in the experience. Further prayer has been made that the action of the respondents in considering 3 years’ experience qua the professional qualification only and not for award of bonus marks, be declared as arbitrary, unreasonable, illegal and the same be quashed and set aside.
2. The petitioner applied for the post of Lab Assistant pursuant to advertisement dated 29.5.2018. The advertisement inter alia indicated the following educational -professional qualification for eligibility:-
3. The petitioner is secondary pass and is relying on having 3 years’ experience of working as Laboratory Assistant / Laboratory Technician.
4. The advertisement further provides for award of bonus marks in terms of Rule 19 of the Rajasthan Medical and Health Subordinate Service Rules, 1965 (‘the Rules’). The petitioner in his online application inter alia claimed experience from 4.4.2013 to 30.4.2018 as Lab Assistant.
5. The said experience of the petitioner was supported by an experience certificate issued by the Principal Medical officer, Ratangarh dated 25.6.2018 (Annex.5), wherein, it was indicated that petitioner had worked as ‘Assistant Lab Technician’ on contractual basis for the period 4.4.2013 to 30.4.2018 and his period of work was 4 years, 7 months and 13 days.
6. It appears that the experience certificate, which was produced by the petitioner and other candidates led the State to get specific details pertaining to the experience of the candidates and for the said purpose, the respondents issued a Eleven Pointer to various authorities who had issued the experience certificates to indicate the details of the experience gained by the candidates.
7. The experience certificate issued to the petitioner, based on the Eleven Pointer (Annex.4), indicated that petitioner had worked as Lab Technician, and for the period 4.4.2013 to 31.3.2015 he had worked for 586 days, from 1.4.2015 to 30.4.2017 for 568 days and from 1.5.2017 to 30.4.2018 for 288 days. Based on the Eleven Pointer, the experience of the petitioner was taken as 3 years 11 months 12 days instead of 4 years 7 months 13 days as indicated in the experience certificate dated 25.6.2018 (Annex.5).
8. The respondents, based on the decision taken in this regard, after deducting 3 years towards the eligibility as indicated in the advertisement, found that as the petitioner’s experience over and above 3 years is less than 1 year, did not award any bonus marks to the petitioner, resulting in, the petitioner having less than the cut-off marks, for which, the interim merit list dated 21.12.2021 (Annex.6) was issued, wherein, for petitioner’s category the cutoff indicated was 46.283, whereas the petitioner had 38.667 as the marks based on his qualification i.e. Secondary.
9. Learned counsel for the petitioner made submissions that action of the respondents in ignoring the certificate dated 25.6.2018 (Annex.5), which indicated an experience of 4 years 7 months 13 days to the petitioner, by seeking further information reducing the same to 3 years 11 months 12 days, is not justified.
10. Submissions have been made that the response to the Eleven Pointer vide Annex.4, for the period 4.4.2013 to 30.4.2018, based on the wages paid to the petitioner, is not justified as the respondents have not taken into consideration the Sundays and Holidays including the leave granted to the petitioner during the said period and once the Sundays, Holidays and leave, are counted for the said period, the petitioner would be attaining the requisite experience and would be entitled to award of bonus marks
The main legal point established in the judgment is the requirement to consider experience certificates and the principles of natural justice in determining eligibility for the post of Laboratory Ass....
Point of Law : Court is firmly of the opinion that experience certificate dated issued by respondent department is required to be taken into consideration for grant of bonus marks to the petitioner.
Weekly offs cannot be excluded from work experience calculations for bonus marks, as it violates statutory obligations and fundamental rights.
Weekly offs and holidays must be included in calculating work experience for bonus marks, as excluding them violates fundamental rights.
Purpose of calculation of bonus marks, experience of a candidate as provided in Clause 8 of advertisement.
The main legal point established in the judgment is that the experience certificate should be considered valid, and the decision not to award marks for the petitioner's experience was not sustainable....
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