The court established that the interpretation of 'similar work' by the appointing authority is valid unless proven arbitrary or malicious.

JUDGMENT :

SAMEER JAIN, J.

1. After hearing the arguments averred and with consent of learned counsel for both the parties, vide order dated 28.05.2024 the instant matter was reserved.

BACKGROUND

2. The instant petition is filed assailing the impugned provisional list dated 01.08.2023, issued by the respondents. In the said list the respondents, granted bonus marks for the work experience on the basis of ‘similar work’, to all the contractual employees working under the National Rural Health Mission (NRHM).

3. The crux of the matter is that the respondent no. 2 issued advertisement no. 03/2023, under the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 1973 (hereafter referred as the Rules of 1973), inviting applications for 358 posts for Homeopathic Medical Officers (Annexure-2). Thereafter, an amended notification dated 23.05.2023 was published by the said respondents, inserting Rule 19 of the Rules of 1973, for the grant of bonus marks to the candidates. After undergoing the examination for the said post, the petitioners were selected and appointed as Ayush Homeopathic Doctors. Presently, the petitioners are working at various Community Health Centres and Primary Health Centres located within the state of Rajasthan, on ad hoc/contractual basis.

4. Considering the long period of service the petitioners were certified with work experience certificate undersigned by the authorities of the Office of Chief Medical and Health officer of different districts. (Annexure-7).

5. The controversy arose when the impugned provisional list was issued by the respondents. Wherein, the respondents granted bonus marks to candidates, considering the ‘similar work’ experience. Moreover, the instant petition was preferred when after attaining the requisite information via RTI, as the person working under the RBSK scheme including the respondent no. 5-7 were not entitled of the said bonus marks as they were only discharging duties of ‘screening’ qua the children at various Aanganwadis, madarsas and government schools, whereas the petitioners were/are discharging the other duties of a Homeopathic Doctor as that of diagnosing, treating and prescribing the medicines to the patients.

PLEADINGS

6. In this backdrop, learned counsel for the petitioner had submitted that the petitioners are aggrieved by the impugned provisional list, dated 02.08.2023 issued by the respondent department, wherein, in an illegal and arbitrary manner, the respondent-department granted bonus marks for work experience qua the ‘similar work’ to all the ‘contractual employees’ working under the National Rural Health mission (NRHM) and Ayush Doctors of the Rashtriya Bal Swasthay Karyakarm (RBSK). It was next submitted that the said employees were persons who were qualified ‘Homeopathic Doctors’, having degree of Doctor in Homeopathy, but were not practicing as doctors and were involved in work of ‘screening’ of the students in various schools, qua diagnosis regarding their deformities. Hence, the said services which were per se rendered by the said contractual employees, does not fall under the ambit of ‘similar work’ definition. Therefore, the bonus marks so awarded by the respondent department to the said candidates dehors the conditions requisite in the said advertisement and Rule 19 of the Rules of 1973.

7. In this regard, reliance was also placed upon the operational guidelines of RBSK Scheme (Annexure-9) and the screening referral card (Annexure-10). Learned counsel had further submitted that point no. – 5 of the Operational Guidelines, categorically states that for the children belonging to the age group of 6 to 18 years, who would be screened in the government and the government aided schools, at least three dedicated ‘Mobile Health Teams’ will be allotted to each block. The main function of the said team was to conduct the ‘screening’ of the children. Thereafter, it was explicitly made clear, that the said teams will be provided with certain equipment, which mi