Dr. Ashutosh Parihar vs State of Rajasthan and Others

The petitioner, said to be possessing the requisite qualification and eligibility; and having offered his candidature for the post of Ayurved Chikitsadhikari under the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service Rules, 1973 (''the Rules of 1973'') pursuant to the advertisement dated 01.06.2013 (Annex. 5), has filed this writ petition stating grievance against the stipulation about grant of bonus marks in the recruitment in question only to the candidates working under the Government, or in Chief Minister BPL Jeevan Raksha Kosh, or in National Rural Health Mission; and not to the candidates like him, who are or had been working otherwise. The petitioner, who allegedly possesses the requisite qualification and had allegedly rendered his services as Ayurvedic Chikitsak to the Charitable Project Society of Lions Club, Jodhpur West, is aggrieved of the fact that he would not be given any bonus marks though he worked for over a year with the said society; and discharged the duties of the same nature. The stipulations as contained in the advertisement and the Rules of 1973 in this regard have been put to contention in this writ petition; and the petitioner has claimed the following reliefs: -

A. Rule 6 of the ''Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service (Second Amendment) Rules - 2013 may kindly be declared ultra vires up to the extant it provides exclusion of the candidate who are working with the institutions or centers other than the scheme of Chief Minister BPL Jeevan Raksha Kosh and National Rural Health Mission under government of Rajasthan.

B. Hon''ble Court may be pleased to quashed and set-aside the condition provided in the guide lines for BASE OF SELECTION and exclusion of the employees who are working with the institutions or centers other than the scheme of Chief Minister BPL Jeevan Raksha Kosh and National Rural Health Mission under government of Rajasthan are also entitled for bonus marks proportionate to their service on the basis of experience.

C. That the respondents may kindly be directed to extent the benefits of bonus marks to the petitioner by treating his working experience with the Lions Club in equal to the other candidate engaged in the government schemes mentioned in the notification dated 13.05.2013.

D. Cost of the writ petition may kindly be awarded in favour of the petitioner.

E. Any other appropriate writ, order or direction, which is in favour of petitioner, may kindly be passed.

It has strenuously been argued by the learned counsel for the petitioner that when the respondents have provided for bonus marks on the basis of experience, there is no justification for differential treatment to the persons like the petitioner, who are working with any organization or project other than those referred in the Rules of 1973. According to the learned counsel, there is no intelligible differentia in treating different the candidates who are engaged in particular Government schemes from the other persons, who have effective and actual working experience; and the baseless differentiation has no relation with the object sought to be achieved. It is submitted that when the ultimate object in providing bonus marks is to make sure the availability of skilled persons, there is no justification or logic in making unnecessary classifications.

Having given anxious consideration to the submissions made and having examined the material placed on record, we are clearly of the view that this writ petition remains bereft of substance and does not merit admission.

The material placed on record makes it clear that before starting of the selection process in question, by the notification dated 13.05.2013, the existing provisions of Rule 19 of the Rules of 1973 were amended with insertion of the following proviso:

Provided further that the Appointing Authority shall scrutinize the applications received by it to the posts of Ayurved Chikitsadhikari, Homoeopathy Chikitsadhikari, Unani Chikitsadhikari. The merit shall be prepared by the Appointing Authority on the basis of marks obtained in such qualifying examination 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, Chief Minister BPL Jeevan Raksha Kosh and National Rural Health Mission, as the case may be. The decision of the Appointing Authority regarding the eligibility or otherwise of a candidates, shall be final.

It appears that the Government had issued an order on 28.05.2013 specifying the bonus marks; and the stipulation in Clause 7 of the advertisement (Annex. 5) came to be stated in accord therewith. We may observe that validity or otherwise of the provision for bonus marks is not in issue in the present case. The consideration herein is to the limited extent as to whether restriction of bonus marks only to the persons working in the referred organizations/projects suffers from any illegality.

It is noticed that in the case of Mool Chand Jat and 15 Another Vs. State of Rajasthan and Others, a Division Bench of this Court has rejected similar nature contention in relation to the recruitment to the post of Pharmacist in the following:

In view of the above, if benefit of bonus marks has been extended only to the Pharmacists, who have gained experience under the Government Institutions, Cooperative Department, Shahakari Upbhokta Bhandar etc. As enumerated in the amended Rule 19 of the Rules of 1965 and such benefit has not been made available to the private Pharmacists, who have gained experience in private institutes/shops, it cannot be said that action of the Government was arbitrary or violative of Article 14 or 16 of the Constitution of India. Classification made by the Government does not suffer from the vice of arbitrariness, rather it appears to be reasonable and rational one. No case of discrimination is made out.

Then, in the case of Arvind Singh & Ors. Vs. State of Rajasthan & Ors. D.B. Civil Writ Petition No. 4709/2013, decided on 29.08.2013, in relation to the recruitment to the post of Pharmacist, an stipulation about grant of bonus marks to the persons working in referred organizations/projects only after the minimum experience of 1 year was put to question; and it was contended that total denial of bonus marks for the services rendered below 1 year was unconstitutional and the persons with lesser experience ought to have been provided proportionate benefit. This court rejected such contentions with the following observations:

Having considered the rival submissions, we are unable to find any illegality or unconstitutionality in the provisions sought to be questioned. Awarding of bonus marks for the purpose of recruitment is itself a matter of concession; and cannot be considered to be a matter of right. As to how, and in what manner, the concession is, if at all, to be given, remains within the domain of the employer concerned. The Government has proceeded to recognize the experience on similar nature work in the specific schemes/organizations/projects and has provided for 10% bonus marks for every completed year of experience with maximum of 30% bonus marks. We are unable to find any basis for the claim made by the petitioners that such bonus marks ought to be provided for the experience of lesser duration too, or on proportionate basis. As to which, and how much, of the experience is to be treated to be the requisite is, again, a matter within the domain and jurisdiction of the employer concerned; and it cannot be claimed as a matter of right that if the petitioners have worked for about 8-9 months, they should be given some bonus marks on the so-called proportionate basis.

We are clearly of the view that on the claim as made, the petitioners have failed to show any illegality or unconstitutionality in the provisions impugned or any illegality in the decision taken by the Government.

The observations aforesaid directly apply to the present case too with necessary variations. If at all the bonus marks are to be given, which itself is a matter of concession, as to which particular experience is to be treated eligible for such concession is a matter within the domain of the respondents; and it cannot be claimed as a matter of right that the persons like the petitioner, who had allegedly rendered honorary services to the Charitable Project Society of Lions Club, be also treated as having the requisite experience.

The petitioner having failed to show any illegality or unconstitutionality in the provisions impugned or any illegality in the decision taken by the Government, no case for entertaining this writ petition is made out. In the result, this writ petition fails and is, therefore, dismissed.