Ratan Singh & ors vs State Of Rajasthan & ors

In all these petitions, the common challenge is to validity of proviso to Rule 19 of the Rajasthan Medical & Health Subordinate Service (Second Amendment) Rules, 2018. The amended rules confined award of bonus marks (in recruitment to the cadre of Pharmacists in the State) to four categories of employees, who worked for the State Government or the Chief Minister B.P.L. Jeevan Raksha Kosh, National Rural Health Mission, Medi Care Relief Society and AIDS Control Society.

In a closely similar situation where similar rules with respect to recruitment of Government Nurses and the award of bonus marks was an issue, where the Single Judge had directed the grant of such benefit (bonus marks) on the basis of experience gained in societies, NGOs and other institutions (carrying out certain State public health programmes), a Division Bench disapproved the relief and set aside the judgment. The Division Bench ruling in State of Rajasthan & ors. Vs. Daulat Ram & ors. [D.B. Special Appeal Writ No. 673/2019] decided on 30.07.2019 had noticed the previous judgments in Gaurav Kumar Sen & ors. Vs. State of Rajasthan & ors. [D.B. Civil Writ Petition No. 24245/2018] decided on 29.10.2018 by the Jaipur Bench, and held as follows :-

"8. This Court notices that the specific argument addressed in Gaurav Kumar was that the expression "Government" had to be given a wide and liberal interpretation so as to include Central and State Government as well as other National Institutions. In other words, to put, the petitioners propounded an expansive interpretation of the term. The petitioners had also cited the Division Bench ruling in Dr. Rohit Sharma vs. State (Ayruveda Department) & Ors. (D.B. Civil Writ Petition No.925/2014), decided on 6.10.2016 and other Division Bench judgments including Manohar Singh and Yadvendra Shandilya. This Court, however, was of the view that the Rule could not be invalidated for the reason that it confined to experience which could be granted to the candidate to only enumerated categories. The Division Bench in the latest ruling of Gaurav Kumar held as follows :-

"We are afraid, validity of the Rule may not be struck down on the basis of what has been argued. Rule cannot be declared ultra vires the Constitution only because of the rule making authority did not extend the benefit of bonus marks to those working in the National Institute of Ayurveda, Jaipur, and the Regional Ayurveda Research Institute for Skin Disorder, Ahmedabad and Patna. A rule can be declared ultra vires only if it is shown that the rule making authority lacked legal competence inasmuch as the Rule violates any of the provision of the Constitution or the parent Act under which they are framed. Whether or not to extend the benefit of bonus marks to those working with the aforesaid Institutes, is a matter of policy of the State Government to decide.

Reliance has been placed by the learned counsel for the petitioners on para no.3 of the order dated 06.10.2016 of a coordinate bench of this court in a bunch of writ petitions leading one being D.B. Civil Writ Petition No.925/2014 - Dr. Rohit Sharma Vs. State and Others, which reads thus:-

"3. The controversy has further arisen because of the order passed by Division Bench pursuant to the order dated 27th April, 2016 where following order was passed:-

"Learned counsel for petitioners prays for withdrawal of the application filed for disposal of the writ petition in the light of the order dated 26.2.2016 passed in DB Civil Writ Petition No.10246/2013, Yadvendra Shandilya & Ors. Versus State of Rajasthan & Ors.

In view of aforesaid, application is dismissed as withdrawn. However, learned counsel for the respondents is directed to keep the author of the letter dated 8.2.2016 present in the court on the next date of hearing to explain his authority to pass an order in contravention to the Notification under challenge. If this court would not be satisfied by his authority, necessary order for action against him would be passed. Let this petition be listed on 2.5.2016 as a first case."

It would be evident from the aforesaid that the court summoned the author of the letter dated 8.2.2016 in the court to explain his authority to pass an order in contravention to the Notification under challenge. However, the learned counsel for the petitioner would argue that subsequently the court accepted the explanation of the author of the order dated 8.2.2016. The learned counsel for the petitioners referred to certain portion of the order dated 13.08.2013, which was quoted in the order dated 06.10.2016, supra, which reads as under:-

"As regards the submission made by the petitioner that he too has served & having length of experience on similar work in such of the society which is aided by the government is entitled to claim benefit of bonus marks in terms of amendment notification, suffice it to say that where-ever recruitment are made under either government or government's owned establishments appointments are by & enlarge made in conformity with the mandate of Art 14 of the Constitution and that is a pre-condition seeking public employment and merely because the society in which the petitioner is serving on similar like post as alleged and experience of its credit but the government has no control over the affairs of the society, still such appointments could not be said to be made in conformity with the mandate of Art. 14 of the Constitution and in our considered opinion they cannot claim parity with such of the incumbents who have length of experience or credit on similar work in claiming benefit of bonus marks in terms of amendment notification dated 13.05.2013.

Consequently, we do not find any substance in the petition and the same is devoid of merit and accordingly dismissed."

In our view, the letter dated 08.02.2016 cannot be considered to be a government order as it is a mere communication sent by the Deputy Secretary to the Government, Department of Ayurveda and Indian Medicines, to the Additional Advocate General of the State. The Government has therefore cancelled the said letter dated 08.02.2016. We are not persuaded to interfere with the decision of the Government in cancelling the aforesaid letter dated 08.02.2016 vide order dated 10.02.2017. In our view, the order does not suffer from any kind of illegality. We are also not persuaded to entertain the challenge to validity of Rule 19 of the Rules of 2013 since we do not find any merit in the writ petition."

It is quite evident from the above discussion that Gaurav Kumar dealt with the precise issue. The import of the Division Bench judgment is clear that the award of bonus marks is a benefit and cannot be claimed as a matter of right. The State can then fashion its Rules and policies to grant such benefits to specified or particular individuals having regard to the needs of its departments. In such circumstances given the imperative of Rule 19, the Court does not discern any arbitrariness, if the State insists that only four specified categories of institutions or programme where the individual had worked would be considered eligible for bonus marks ; irrespective of manner of their recruitment or appointment. In these circumstances, the impugned order cannot be sustained.

The argument on behalf of the writ petitioners that the employees of the State Universities and other such bodies which are aided by the State should also be included and that their experience should be granted bonus marks, in the opinion of this Court is unpersuasive. If one accepts the position in law that grant of bonus marks is a benefit, it also follows that the State is entitled to choose whom to accord the benefit. There cannot be a complaint of arbitrariness unless there is something manifestly unreasonable about the fashioning of such policies. The objective with which the State has framed its policy and confined grant of bonus marks for experience in four categories of the institutions is that each of them were carrying out State policies. It chose to grant bonus marks working in those institutions and not others, cannot in the opinion of the Court result in a complaint of discrimination or arbitrariness.

For the above reasons, this Court holds that the impugned judgments are in error and are accordingly set aside. The appeals are allowed accordingly. All pending applications are disposed."

It is argued on behalf of the petitioners that the decision in Daulat Ram (supra) ought not to be construed as binding because in the present case, all employees working and discharging similar functions, employed by Sahakari Upbhokta Wholesale Bhandar and Drugs Distribution Centers were primarily and essentially working only for the State and carrying out its policies.

This Court is of the opinion that the argument has no merit. In Daulat Ram - as indeed in Gaurav Kumar Sen, this Court highlighted that the grant of bonus marks is a benefit which cannot be claimed as a matter of right. If the State chooses to prioritize employees working in its establishment or directly in relation to a programme evolved by it and it chooses not to grant such benefit to others, this is neither discriminatory nor arbitrary. Therefore, the challenge to the amended rule cannot be accepted.

Civil Writ Petition No. 13884/2018

The petitioner seeks the benefit of age relaxation under Rule 10 of the Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2013. The State is directed to examine it and grant the benefit, if permissible.

Civil Writ Petition No. 13690/2018, 13750/2018 & 13902/2018

In these petitions, the petitioners worked for the Central Government and claim the same benefit as is granted to those working for the State of Rajasthan.

Having regard to the view expressed i.e. four categories of employees working for the State Government or in its specified programmes, are entitled to the benefit of bonus marks, this Court is of the opinion that there is no merit in the argument urged.

It is open to the State not to grant bonus marks to those working for the Central Government as well.

All the writ petitions are, accordingly, dismissed save and except the directions granted in Civil Writ Petition No. 13884/2018.