RAJASTHAN HIGH COURT JUDGEMENT : Weightage of Marks Issue in Rajasthan Government Jobs

RAJASTHAN HIGH COURT JUDGEMENT : Weightage of Marks Issue in Rajasthan Government Jobs

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
J U D G M E N T
(1) S.B.CIVIL WRIT PETITION NO.4144/2013
(Archana Vs. State of Rajasthan & Ors.)
(2) D.B.CIVIL SPECIAL APPEAL NO.630/2013
In
S.B.CIVIL WRIT PETITION NO.4144/2013
(State of Rajasthan & Ors. Vs. Archana & Anr.)
(3) S.B.CIVIL WRIT PETITION NO.9780/2013
(Virendra Ragwani Vs. State of Rajasthan & Ors.)
(4) S.B.CIVIL WRIT PETITION NO.10236/2013
(Ranveer Deharu & Ors. Vs. State of Rajasthan & Ors.)
(5) D.B.CIVIL WRIT PETITION NO.5583/2013
(Nagendra Singh Chouhan Vs. State of Rajasthan & Ors.)
DATE OF JUDGMENT :: 25th September, 2013
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE VIJAY BISHNOI
Mr. G.S.Bafna, Advocate General assisted by
Mr. Sarvesh Jain; and
Mr. G.R.Punia, Additional Advocate General assisted by
Mr. Mahendra Choudhary.
Dr. P.S.Bhati and Dr. Nupur Bhati, counsels for the petitioners in
SBCWP No.4144/2013.
Mr. Ashok Chhangani, Mr. M.S.Godara and Mr. R.S.Choudhary,
counsels for the petitioners in SBCWP Nos.9780, 10236 and
5583 of 2013).
.....
BY THE COURT :(PER HON'BLE GOVIND MATHUR,J.)
REPORTABLE
By 73rd amendment of the Constitution of India, a constitutional status was conferred on Panchayati Raj Institutions as the third stratum of governance. The amendment
aforesaid was a landmark step to satisfy directives of the State
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Policy enshrined under the Constitution. With an object to bring a law relating to Panchayati Raj Institution in conformity with the constitutional status granted to such institutions, the Rajasthan
State Legislature enacted Rajasthan Panchayati Raj Act, 1994
(hereinafter referred to as ‘the Act of 1994’). The Act of 1994 is
a complete code of governance through Panchayati Raj
Institutions in rural area of the State.
Section 78 to Section 84 of the Act of 1994 deals with appointment and deputation of officers and staff, while Section 89 deals with the formation of service for the Panchayati
Raj Institutions in the name of “Rajasthan Panchayat Samiti and Zila Parishad Service”. Section 90 deals with the constitution and functions of District Establishment Committee and Section 91
pertains to discipline among the members of the Panchayat Samiti and Zila Parishad service.
Section 102 of the Act of 1994 empowers the State Government to make Rules to carry out objects and the purposes of the Act. Exercising this power, the State of Rajasthan framed “The Rajasthan Panchayati Raj Rules, 1996” (hereinafter referred to as the ‘Rules of 1996’). Chapter XII of
the Rules of 1996 relates to the recruitment of staff for the Panchayati Raj Institutions and to regulate other service conditions for the employees.
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A complete procedure required to be adhered while making direct recruitment to the Rajasthan Panchayat Samiti and Zila Parishad Service is given in Rules 270 to 277. As per
Rule 270, the District Establishment Committee on receiving requisitions for direct recruitment by the Panchayat Samiti or the Zila Parishad, as the case may be, shall invite applications
through open advertisement in daily newspaper having wide circulation. The application as per Rule 271 is required to be made in a format prescribed by the District Establishment Committee. After scrutiny of the applications, the District Establishment Committee is required to conduct written test for all categories of service except for Class-IV service and for the post of Drivers. The written test aforesaid is to be conducted as per the procedure given in Rule 273 of the Rules of 1996. At the
time of introduction of the Rules, the Rule 273 was in the following terms :-
“Rule 273. Written test.- The Committee may hold a written test for all categories of
service except drivers and class IV. [The examination shall be conducted as per
directions of the State Govt. The syllabus for competitive examination for direct recruitment
to the post of [School teachers class 1 to 5 shall be as specified in Schedule II and
Teachers classes 6 to 8 shall be specified in schedule III.] D.E.C. Will prepare the merit list
on such basis:
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Provided that selections for the various posts shall be made in accordance with the general
directions given by the State Government from time to time in this respect. It may not be
necessary to call the candidate for interview if so provided in those directions.”
A second proviso was added to Rule 273 under a notification dated 11.5.2011 and that reads as under :-
“Provided further that for the recruitment of Teachers Classes 1 to V and VI to VIII, the District Establishment Committee shall prepare merit list on the basis of marks obtained in
written test and adding 20% of marks obtained in Teacher Eligibility Test.”
An amendment was further made in Rule 273 aforesaid by introducing a new proviso vide the Government of Rajasthan notification dated 17.12.2012, however, the same was
re-amended by the Rajasthan Panchayati Raj (Amendment) Rules, 2013 notified under a notification dated 29.1.2013 and the existing second proviso 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
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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.
Explanation : Wherever percentage of the marks can not be ascertained due to grade awarded to the
candidate in the particular examination, the median of the grade awarded to the candidate in such examination shall be basis for the preparation of the merit list.”
In view of the second proviso to Rule 273, the persons who have acquired experience of working exceeding one year as 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 in Mahatma Gandhi National Rural Employment Guarantee Scheme (hereafter referred to as ‘MGNREGA') or in any other scheme of
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the Department of Rural Development and Panchayati Raj in the State of Rajasthan are entitled to have additional weightage as specified by the State Government while getting their candidature considered for recruitment. The Government of Rajasthan in pursuance to the proviso aforesaid decided to allow 10 bonus marks on having experience of more than one year but
less than two years on the specified posts. The bonus marks to the tune of 20 and 30 respectively are required to be given in the event of having experience of more than two years but less
than three years and of more than three years. While providing such weightage an exclusion is made under proviso second for the persons having experience on the specified posts, if
employed through Placement Agencies.
The classification made under proviso second to Rule 273 of the Rules of 1996 on basis of the mode of engagement on specified post in MGNREGA came to be declared bad by a
Division Bench of this Court in batch of writ petitions led by
DBCivil Writ Petition No.1723/2013, Mitendra Singh Rathore &
Ors. v. State of Rajasthan & Ors. In result, the proviso second to
Rule 273 of the Rules of 1996 now 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
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examination and such marks as may be specified by the State Government having regard to the length of experience exceeding on 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 in MGNREGA or in any other scheme of the Department of Rural
Development and Panchayati Raj in the State.”
A process of selection was initiated by different Zila Parishads in the State of Rajasthan to fill up the existing vacancies relating to the post of Lower Division Clerk and while making such selection a weightage is required to be given to the
experienced hands. Petitioner Archana preferred a petition
for writ (SBCivil Writ Petition No.4144/2013) to have a
direction for the respondents to issue a certificate of experience
to her and further to grant bonus marks accordingly.
Learned Single Judge, while considering the petition,
examined several provisions of the Act of 1996 and prima facie
arrived at the conclusion that the grant of bonus marks against
the experience is an “unconstitutional action of the State”.
Learned Single Judge, thus, referred following three questions to
the Larger Bench for appropriate answer :-
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“(A) Whether the second proviso to Rule 273 of the Rajasthan
Panchayat Raj Rules 1996 added vide notification dated
29.01.2013 is not an attempt to undo the judgment rendered by
the Hon'ble Supreme Court in the case of Secretary, State of
Karnataka Vs. Uma Devi, reported in (2006)4 SCC 1, because
under the said proviso the State Government granted weightage
of 10 marks for the experience of each year, up to three years,
to the employees engaged on ad hoc/temporary/contract basis
in the various schemes or projects of the Rural Development
Department and deserves to be declared unconstitutional?
(B) Whether in view of the existing Rule 273 in which written
test is provided for recruitment on the post of L.D.C. whether
under second proviso added vide notification dated 29.01.2013
the respondent State can make recruitment without conducting
written examination?
(C) Whether in the absence of any provision in the amended
Rule 266 with regard to qualification of experience for the post
of L.D.C. bonus marks for experience can be granted and
whether the same is not violative of Articles 14 and 16 of the
Constitution of India?”
Learned Single Judge in two other petitions for writ
viz. Virendra Ragwani v. State of Rajasthan & Ors. and Ranveer
Deharu v. State of Rajasthan & Ors. also formulated certain
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questions of law and made reference for their adjudication by
Larger Bench. In these two petitions the petitioners sought a
direction for respondents to conduct the process of selection for
appointment to the post of Junior Engineer Degree/Diploma
Holder on basis of the educational qualification prescribed in Rule
15 of the Rajasthan Rural Development and Panchayati Raj State
and Subordinate Service Rules, 1998 (hereinafter referred to as
“the Rules of 1998”) without extending any weightage/bonus
marks on basis of experience. Suffice to mention that in an
another petition for writ (DBCivil Writ Petition No.5583/2013,
Nagendra Singh Chouhan v. State of Rajasthan & Ors., a
challenge is given to proviso to Rule 23 of the Rules of 1998.
In the cases of Virendra Ragwani, Ranveer Deharu
and Nagendra Singh Chouhan the petitioners are Engineers and
aspirants for appointment to the post of Junior Engineer
Degree/Diploma Holder under the process of selection initiated
vide an advertisement dated 25.3.2013, issued by the Secretary
to the Government of Rajasthan-cum-Commissioner,
Department of Rural Development and Panchayati Raj.
Recruitment to the posts referred in the advertisement
mentioned above is required to be made as per the Rules of
1998. The Government of Rajasthan by Rajasthan Rural
Development and Panchayati Raj State and Subordinate Service
(Amendment) Rules, 2013 substituted first proviso to Rule 23 in
following terms :-
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“Provided that in case of appointment to the
post of Junior Engineer, Assistant Programme
Officer, Computer Instructor (PR), Accounts
Assistant, Co-ordinator Training, Co-ordinator
I.E.C. and Co-ordinator Supervision 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
such minimum academic qualification or
technical qualification, except allied
qualifications, as mentioned in the Schedule of
these rules and such marks as may be specified
by the State Government having regard to the
length of experience, exceeding one year by
persons on the similar work under MGNREGA, or
any scheme or project of the Department of
Rural Development and Panchayati Raj or the
Department of Education in this State.
Explanation: (i) Wherever percentage of the
marks can't be ascertained due to grade
awarded to the candidate in the particular
examination, the median of the grade awarded
to the candidate in such examination shall be
basis for the preparation of the merit list.
(ii) For the purpose of this rule allied
qualification means certificate / diploma /
degree relating to knowledge of Computer
Application.
(iii) For the purpose of this rule, experience on
similar work shall be ascertained as under,
namely:-
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S.No. Experience of working gained as To be considered for the
post
Remarks
1. Junior Technical Assistant/Senior
Technical Assistant/Junior
Engineer working in Department
of Rural Development and
Panchayati Raj or the Department
of the Education
Junior Engineer
2. Programme Officer/Assistant
Programme Officer/Manager
SGSY
Assistant Programme
Officer
3. Programmer/MIS Manager Computer Instructor (PR)
4. Lekha Sahayak/Accountant/
Assistant Accounts Officer
Accounts Assistant
5. Co-ordinator Training/
Consultant Training
Co-ordinator Training
6. Co-ordinator I.E.C. Co-ordinator I.E.C.
7. Co-ordinator Supervision Co-ordinator Supervision
After substituting the proviso first to Rule 23 in the
terms above, the Government of Rajasthan prescribed
weightage against experience to the extent of ten marks in the
event of service above one year but less than two years; 20
marks in the event of experience of service about two years but
less than three years and of 30 marks for having experience of
service for three or more years.
Petitioner Nagendra Singh Chouhan has questioned
correctness of the proviso to Rule 23 of the Rules of 1998 on
several counts including that grant of weightage under the
proviso aforesaid is nothing but an effort to frustrate the
judgment of Hon'ble Supreme Court in the case of State of
Karnataka v. Uma Devi (supra). It is also asserted that under
the Rules of 1998 the eligibility prescribed for recruitment to the
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post of Junior Engineer Degree/Diploma Holder is having either a
Degree or Diploma in Engineering, but no reference of
experience is given therein, as such, by proviso an additional
eligibility could have not been prescribed. It is also asserted that
grant of weightage against the experience is having no rational
with the object sought to be achieved by making recruitment
under the Rules of 1998. The object of the Rules is to have best
available merit and that can be served only by recruiting the
hands with meritorious qualificational eligibility. The experience
is nothing to do with merit desirable for the lowest post cadered
under the Rules of 1998.
The issues involved in the case of Virendra Ragwani,
Ranveer Deharu and Nagendra Singh Chouhan are same, as
such, the questions referred in the cases of Virendra Ragwani
and Ranveer Deharu are also applicable to the case of Nagendra
Singh Chouhan. The questions so referred are as under:-
“(A) Whether substitution of existing proviso to Rule 23 is not
contrary to the judgment rendered by the Hon'ble Supreme
Court in Uma Devi's case (supra), in which, it has been held that
appointment should be made in accordance with law and there
should not be any regularization of those employees who were
appointed contrary to the rules framed under proviso to Article
309 of the Constitution of India;
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(B) Whether the respondent State can give complete good-bye
to Rule 15 and original Rule 23 which are in existence and grant
bonus marks for the services rendered by the employees on
different posts in the projects as per the proviso added vide
notification dated 06.03.2013;
(C) Whether providing only 70% marks for educational and
professional qualification and providing 30 marks for experience
acquired by the candidates in different projects is in consonance
with Articles 14, 16 and 21 of the Constitution of India. If not,
then, why the amendment made vide notification dated
06.03.2013 should not be declared unconstitutional; and
(D) Whether such bonus marks can be provided by the State
Government without making any amendment in the qualification
laid down in the Schedule appended to the Rules of 1998.”
On being referred, these matters are before us in
accordance with Rule 59 of the Rajasthan High Court Rules,
1952.
It is pertinent to note that the order of reference
itself too is under challenge in DBCivil Special Appeal
No.630/2013, State of Rajasthan & Ors. Vs. Archana.
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Learned Advocate General Shri G.S.Bafna, learned
Additional Advocate General Shri G.R.Punia, Shri Pushpendra
Singh Bhati, counsel for petitioner Archana addressed the Court
on several counts including that -
(1) The reference made by learned Single Judge is incompetent
in view of the fact that as per Rule 59 of the Rajasthan High
Court Rules, 1952 reference could have been made only on a
question or questions of law arising in the case concerned. In
the present case there was no issue with regard to validity of
the grant of weightage in the form of bonus marks against the
experience;
(2) In the case in hand no one questioned validity of the proviso
second to Rule 273 of the Rules of 1996 for grant of
weightage against the experience, thus, validity of the
provision cannot be examined;
(3) Learned Single Judge misconstrued the judgment of Hon'ble
Supreme Court in Secretary, State of Karnataka Vs. Uma Devi,
reported in (2006)4 SCC 1. The case aforesaid is having no
application to the facts of the present case. Beside that even
in the case of Uma Devi it is kept open for having a provision
to extend weightage for experience (reference para 55 of the
judgment);
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(4) The weightage against the experience is prescribed to ensure
merit in service and that has already been settled by several
judicial pronouncements as a valid criteria. The experience
decorates personality with maturity and that extends desired
efficiency to public service; and
(5) The quantum of weightage given in the form of bonus marks
is absolutely within the domain of the State Government and
as such it is not open for examination by the Court. No
challenge too is given to the quantum of weightage and as
such that is not required to be examined while considering this
reference.
Shri Mahendra Singh Godara and Shri Ashok
Chhangani have supported the reference made with assertion
that in view of the judgment in the case of State of Karnataka v.
Uma Devi (supra) no weightage could have been allowed to the
aspirants having experience of working with the schemes floated
under MGNREGA and under the Department of Rural
Development and Panchayati Raj. It is asserted that the relevant
Rules nowhere prescribe experience as an eligibility, therefore,
that cannot be treated as a valid criteria for determining merit.
According to learned counsels the proviso introduced under Rule
273 of the Rules of 1996 and proviso to Rule 23 of the Rules of
1998 are bad being in contravention to the principle eligibility
prescribed under the relevant Rules.
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It is asserted by Shri Ashok Chhangani, learned
counsel for the petitioner in the case of Nagendra Singh Chouhan
that a proviso to Rule is something engrafted on a preceding
enactment, but in the instant case the proviso is creating a
substantive right in favour of the aspirants who are having
experience of service. According to Shri Chhangani neither Rule
273 of the Rules of 1996 nor Rule 23 of the Rules of 1998 are
concerned with eligibility or determination of merit, as such, by
way of granting weightage through proviso the respondents are
extending a new right, which as a matter of fact is not concerned
with the main provision. The provisos as such are bad.
Heard and considered the rival submissions advanced
by learned counsels.
So far as the argument advanced by learned
Advocate General relating to competence of making a reference
is concerned, suffice to mention that Rule 59 of the Rajasthan
High Court Rules, 1952 (hereinafter referred to as “the Rules of
1952”) provides that “the Chief Justice may constitute a Bench
of two or more Judges to decide a case or any question or
questions of law formulated by a Bench hearing a case. In the
latter event the decision of such Bench on the questions so
formulated shall be returned to the Bench hearing the case that
Bench shall follow that decision on such question or questions
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and dispose of the case after deciding the remaining questions, if
any, arising therein”.
As per Rule 59 of the Rules of 1952 reference is
required to be made by Hon'ble the Chief Justice on the
questions of law formulated by the Bench hearing a case. The
issues framed by learned Single Judge are quite relevant and are
arising from the cases concerned in view of the fact that
ultimately the issue relates to a fair recruitment by determining
merit by a fair mode of selection. Learned Single Judge
formulated the question about validity of the weightage i.e. to be
granted for determination of merit while making appointments
on the posts concerned and these are pure questions of law.
True it is, in the petition for writ preferred by Ms. Archana no
challenge is given to the weightage given, but the same is
claimed as settled by the State of Rajasthan, however, it is
always open for writ Court to see that whatever claimed is
constitutional or not, though may be having statutory credil. If
the claim made is based on a statute and validity of that too is
having doubt, then that can very well be examined by the writ
Court. As per Rule 55 of the Rules of 1952 a Single Judge cannot
adjudicate the constitutionality of a statute, thus, in the instant
matter learned Single Bench formulated the questions and
referred the same to a Larger Bench. Beside the above, the
argument advanced with regard to competence of reference
looses its importance in view of the fact that in the case of
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Nagendra Singh Chouhan a challenge is also given to the
provision prescribing authority to the State of Rajasthan for
extending weightage on basis of the experience. It is also
pertinent to note that in the case of Nagendra Singh Chouhan
the issue with regard to quantum of weightage (quantum of
bonus marks) given against the experience is also questioned.
Learned Single Judge has also made a reference in the case of
Virendra Ragwani and Ranveer Deharu in the terms that
“whether providing only 70% marks for educational and
professional qualification and providing 30 marks for experience
acquired by the candidates in different projects is in consonance
with Articles 14, 16 and 21 of the Constitution of India. If not,
then, why the amendment made vide notification dated
06.03.2013 should not be declared unconstitutional”.
Looking to this factual background, we are of the
view that all the questions referred by learned Single Judge for
adjudication by Larger Bench are required to be examined and
answered. The questions raised in the case of Nagendra Singh
Chouhan being interlinked with the questions referred to the
Larger Bench too are required to be adjudicated by us.
For our convenience we have rearranged the seriatim
of the questions formulated by learned Single Bench and i.e. as
under:-
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(1)Whether in view of the existing Rule 273 in which written test
is provided for recruitment on the post of L.D.C. whether under
second proviso added vide notification dated 29.01.2013 the
respondent State can make recruitment without conducting
written examination?
(2)Whether in the absence of any provision in the amended Rule
266 with regard to qualification of experience for the post of
L.D.C. bonus marks for experience can be granted and whether
the same is not violative of Articles 14 and 16 of the Constitution
of India?
(3)Whether the respondent State can give complete good-bye to
Rule 15 and original Rule 23 which are in existence and grant
bonus marks for the services rendered by the employees on
different posts in the projects as per the proviso added vide
notification dated 06.03.2013?
(4)Whether such bonus marks can be provided by the State
Government without making any amendment in the qualification
laid down in the Schedule appended to the Rules of 1998?
(5)(a)Whether the second proviso to Rule 273 of the Rajasthan
Panchayat Raj Rules 1996 added vide notification dated
29.01.2013 is not an attempt to undo the judgment rendered by
the Hon'ble Supreme Court in the case of Secretary, State of
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Karnataka Vs. Uma Devi, reported in (2006)4 SCC 1, because
under the said proviso the State Government granted weightage
of 10 marks for the experience of each year, up to three years,
to the employees engaged on ad hoc/temporary/contract basis
in the various schemes or projects of the Rural Development
Department and deserves to be declared unconstitutional?
(5)(b) Whether substitution of existing proviso to Rule 23 is not
contrary to the judgment rendered by the Hon'ble Supreme
Court in Uma Devi's case (supra), in which, it has been held that
appointment should be made in accordance with law and there
should not be any regularization of those employees who were
appointed contrary to the rules framed under proviso to Article
309 of the Constitution of India?
(6) Whether providing only 70% marks for educational and
professional qualification and providing 30 marks for experience
acquired by the candidates in different projects is in consonance
with Articles 14, 16 and 21 of the Constitution of India. If not,
then, why the amendment made vide notification dated
06.03.2013 should not be declared unconstitutional?
QUESTION NO.1 :-
The first issue required to be answered by us is that
whether the requirement of holding written test as per Rule 273
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of the Rules of 1996 has wrongly been dispensed with while
making recruitment to the post of Lower Division Clerk?
As already stated, as per the Rules of 1996 direct
recruitment to the post of Lower Division Clerk is required to be
made as per the procedure prescribed from Rule 270 to Rule
277. As per Rule 270 of the Rules of 1996, on a requisition for
direct recruitment to the service having been made by the
Panchayat Samiti or the Zila Parishad, the District Establishment
Committee shall invite applications through open advertisement
in daily newspapers having wide circulation. The application for
appointment is required to be made in the format prescribed by
the committee. As per Rule 272 of the Rules of 1996 “the
committee shall scrutinise the applications received by it and call
the candidates eligible for appointment under these Rules to
appear before it for interview/written test”. Under Rule 272
the District Establishment Committee is having option either to
call the candidates to face interview or to hold a written test.
Rule 273 prescribes a broad discretion to the committee to hold
a written test, if required, as such holding of written test is not
mandatory. A plain reading of the Rules 272 and 273 of the
Rules of 1996 quite satisfactorily convey that holding of written
test is not a condition precedent for making direct recruitment.
The respondents, thus, committed no illegality or even
irregularity by proceeding with selection through direct
recruitment without conducting written examination.
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QUESTION NO.2 :-
The question No.2 as formulated by learned Single
Bench is having two limbs and those are :-
(1)Whether the weightage in the form of bonus marks could
have been granted without making an amendment under Rule
266 of the Rules of 1996 that prescribes eligibility for
appointment to the post of Lower Division Clerk inter-alia?
(2)That whether grant of bonus marks does not violate the
fundamental principle of equality enshrined under Articles 14
and 16 of the Constitution of India?
So far as Rule 266 of the Rules of 1996 is concerned,
it prescribes that a person having the qualification of Secondary
from a recognised Board with a typing speed of 20 and 25 words
per minute in Hindi and English typing respectively can be
considered for appointment as Lower Division Clerk. For
appointment to the post of Lower Division Clerk there is no
eligibility to have experience. As per the order of reference made
by learned Single Judge when the experience is not prescribed
as an eligibility, then no bonus marks could be awarded while
determining merit for appointment and, if merit is prepared
otherwise, then that shall not only be in violation of Rule 266 of
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the Rules of 1996, but shall also be in violation of doctrine of
equality.
An aspirant for appointment to the post of Lower
Division Clerk and other posts referred in Rule 266 is required to
have minimum eligibility given in the Rule concerned. No
appointment can be made on the posts referred in Rule 266 by a
person who is not having requisite qualification. However, the
grant of weightage in the form of bonus marks is not a part of
eligibility but a mode adopted to extend more efficiency, skill and
maturity to the service by giving preference to experienced
hands. In public service the prime object of recruitment process
is to sort out the most meritorious person to give an edge to
service that is essential to serve and execute public duties and
policies. The determination of such merit depends on several
factors including qualificational eligibility and experience. In the
instant matter the respondents are making appointments to the
posts available with Panchayati Raj Institutions. A Division Bench
of this Court in DBCivil Writ Petition No.1723/2013, Mitendra
Singh Rathore & Ors. v. State of Rajasthan & Ors., had an
occasion to examine the importance of the experience required
in services including Panchayat Raj service and observed as
under:-
“The Panchayati Raj Institutions as per Schedule-XI
of the Constitution of India read with Rajasthan
Panchayati Raj Act, 1994 and the Rules framed
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thereunder are having a very significant role in
nation building by extending and implementing
various developmental plans. Several schemes under
MGNREGA too are supposed to be accomplished
through Panchayati Raj Institutions. In such
circumstances the need of a big man force is
obvious. The service further requires skill with
insight for the nature of job to meet the task given.
An experienced person by examining, understanding
and factually undertaking same task catch an insight
and propound understanding of the job concern.
Such insight and understanding of the work extends
an edge to such persons in doing the work assigned
with passion and interest. It also introduces such
persons with the world of work and to learn dos and
don'ts attached thereto. The experience comprises
knowledge, skill, exposure, concept of the task given
and procedural knowledge thereof. All these
ingredients provides a merit that is necessary for
service. This merit helps in accomplishing the task
successfully, as such, the grant of weightage for
experience is in interest of service so also in interest
of the objects for which service is created. The need
of granting weightage under 2nd Proviso to Rule 273
of the Rules of 1996 is with this view only.
The experience required under Proviso second of
Rule 273 of the Rules of 1996 is on definite posts
under definite schemes sponsored by the Panchayati
Raj Institutions and under MGNREGA. This too is
having a rational as the schemes are required to be
implemented with a new vision of development and
governance at the grass root level through the
Panchayat Raj Institutions as per thrust of the 73rd
constitutional amendment and the State enactment
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made in consonance thereto. The need of
experience hands in service, thus, is rational and
required.”
While adopting the reasonings given in the case of
Mitendra Singh (supra) we are of the view that the grant of
weightage while making appointment to the post in Panchayat
Raj service is neither irrational nor it makes any classification
without having intelligible differentia. We are also of the view
that such bonus marks in no manner offends the eligibility
prescribed under Rule 266 of the Rules of 1996. Rule 266,
prescribes minimum eligibility, but not the criteria for
determining merit, which as a matter of fact is given under
proviso to Rule 273 of the Rules of 1996.
While examining this question, we also deem it
appropriate to deal with the argument advanced by Shri Ashok
Chhangani that the proviso is something engrafted on a
preceding enactment, but the proviso in question is creating a
substantive right in favour of the aspirants possessing service
experience, the proviso, therefore, is contrary to the principles of
legislative drafting. It is asserted that providing of the proviso in
the form of a positive right is illegal and, therefore, that
deserves to be declared bad. The argument advanced is
substantiated with the aid of several judgments including Union
of India v. Sanjay Kumar Jain, reported in (2004) 6 SCC 708; Ali
M.K. & Ors. v. State of Kerala & Ors., reported in (2003) 11 SCC
-26-
632; A.N.Sehgal & Ors. v. Raje Ram Sheoran & Ors., reported in
1992 Supp (1) SCC 304; State of Maharashtra v. Chandrabhan,
reported in AIR 1983 SC 803; and Col. A.S.Sangwan v. Union of
India & Ors., reported in AIR 1981 SC 1545.
The law laid down in the cases aforesaid is that a
proviso is subsidiary to the main section and it must be
construed in light of section itself. The object of the proviso is to
carve out from the main section a class or category to which the
main section does not apply. But in carving out from the main
section one must always bear in mind what is the class referred
to in the main section and must also remember that carving out
intended by the proviso is from the particular class dealt with by
the main section and from no other class. Ordinarily a proviso is
designed to restrict rather than to enlarge the provision to which
it is appended, but that is not inflexible rule. There may be cases
in which the language might well lead to conclusion that the
legislature intended to exercise its right enacting power by
proviso too. The Court on overall examination of the provision to
which proviso is attached, if arrives to the conclusion that the
legislature intended to create a liability, then it is the duty of the
Court to give effect to that intention may that be embodied in a
proviso.
Hon'ble Supreme Court in State of Tamil Nadu v.
Kodaikanal Motor Union (P) Ltd., reported in AIR 1986 SC 1973,
-27-
while discussing the principles of interpretation, observed as
under:-
“The courts must always seek to find out the
intention of the legislature. Though the courts must
find out the intention of the statute from the
language used, but language more often than not is
an imperfect instrument of expression of human
thought. As Lord Denning said it would be idle to
expect every statutory provision to be drafted with
divine prescience and perfect clarity. As judge
Learned Hand said, we must not make a fortress out
of dictionary but remember that statutes must have
some purpose or object, whose imaginative
discovery is judicial craftsmanship. We need not
always cling to literalness and should seek to
endeavour to avoid an unjust or absurd result. We
should not make a mockery of legislation. To make
sense out of an unhappily worded provision, where
the purpose is apparent to the judicial eye 'some'
violence to language is permissible.”
The fundamental duty of the Court, thus, is to
construe a provision as per intention of the legislature only. We
are duty bound to act upon the true intention of the legislature
and nothing else. The Courts while interpreting or construing an
statute are supposed to see intention of the legislature with an
approach to ascertain its literal meaning as well as its
functionality. It is well established that the rules of interpretation
are not the rules of law and are not required to be applied like
the rules enacted by the legislature.
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In view of this legal position we are also required to
interpret the proviso as per the intention of the enacting
authority and in consonance with the dominant object that is to
be served by the proviso, hence, the provisos in question are
required to be interpreted to make them functional in
consonance with the intention of legislature. Rule 273 of the
Rules of 1996 is part of procedure for direct recruitment on
several posts under Panchayat Raj Institutions, and as per this
provision the District Establishment Committee is required to
conduct a written test, if required and then to prepare a merit
list. Subsequent to it the proviso in question is given that
empowers the State Government to settle a mode of granting
weightage on basis of experience.
True it is, that Rule 23 of the Rules of 1998
substantively relates to the discretion available for holding
written examination, but at the same time it also pertains to
settling determination of merit of the aspirants. The legislature
while enacting the proviso has prescribed a liability for the State
to have most meritorious persons in service and while doing so a
weightage is to be given on basis of experience. With the aid of
proviso the legislature intends to carve out the experienced
persons for having some weightage while determining the merit.
The carving of such aspirants is with an intention to have mature
and meritorious persons in the service concerned. The proviso,
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therefore, cannot be said as an alien to the main provision. The
proviso to Rule 273 of the Rules of 1996, as such, serves the
intention of its enacting authority. The provisos in question are
also carving out a group from a particular class i.e. of the
aspirants for appointment to specific service. This carving out
must be on rational basis and we have already ascertained the
rationality behind the grant of weightage to the experience
hands.
The discussion above leads to negativate the
argument advanced by Shri Ashok Chhangani. The reasoning
given also covers the question relating to the proviso added with
Rule 23 of the Rules of 1998.
QUESTION NO.3 :-
This question as a matter of fact stands answered in
view of the findings given with regard to question No.2 referred
above. Suffice to mention that Rule 15 of the Rajasthan
Panchayati Raj State and Subordinate Service Rules, 1998
provides academic and technical qualification and experience for
direct recruitment to the post specified in Schedule-I and II
appended with the Rules and Rule 23 pertains to scrutiny of an
application wherein amendment has been introduced by adding a
proviso in the same terms of proviso to Rule 273 of the Rules of
1996.
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QUESTION NO.4 :-
This question too stands covered by the reasonings
and findings given for question No.2.
QUESTION NO.5(a) and (b) :-
These questions demand a clear understanding of
the judgment rendered by Hon'ble Supreme Court in State of
Karnataka vs. Uma Devi (supra). The judgment begins with
emphasis for maintaining equality and the constitutional scheme
in public employment while making appointments to the public
posts and at the same time hammers the extraneous
considerations in this process. The initial paras of the judgment,
thus, deserve to be quoted :-
“2. Public employment in a sovereign socialist secular
democratic republic, has to be as set down by the
Constitution and the laws made thereunder. Our
constitutional scheme envisages employment by the
Government and its instrumentalities on the basis of
a procedure established in that behalf. Equality of
opportunity is the hallmark, and the Constitution has
provided also for affirmative action to ensure that
unequals are not treated equals. Thus, any public
employment has to be in terms of the constitutional
scheme.
-31-
3. A sovereign government, considering the
economic situation in the country and the work to be
got done, is not precluded from making temporary
appointments or engaging workers on daily wages.
Going by a law newly enacted, The National Rural
Employment Guarantee Act, 2005, the object is to
give employment to at least one member of a family
for hundred days in an year, on paying wages as
fixed under that Act. But, a regular process of
recruitment or appointment has to be resorted to,
when regular vacancies in posts, at a particular point
of time, are to be filled up and the filling up of those
vacancies cannot be done in a haphazard manner or
based on patronage or other considerations. Regular
appointment must be the rule.
4. But, sometimes this process is not adhered to and
the Constitutional scheme of public employment is
by-passed. The Union, the States, their departments
and instrumentalities have resorted to irregular
appointments, especially in the lower rungs of the
service, without reference to the duty to ensure a
proper appointment procedure through the Public
Service Commission or otherwise as per the rules
adopted and to permit these irregular appointees or
those appointed on contract or on daily wages, to
continue year after year, thus, keeping out those
who are qualified to apply for the post concerned and
depriving them of an opportunity to compete for the
post. It has also led to persons who get employed,
without the following of a regular procedure or even
through the backdoor or on daily wages, approaching
Courts, seeking directions to make them permanent
in their posts and to prevent regular recruitment to
the concerned posts. Courts have not always kept
-32-
the legal aspects in mind and have occasionally even
stayed the regular process of employment being set
in motion and in some cases, even directed that
these illegal, irregular or improper entrants be
absorbed into service. A class of employment which
can only be called 'litigious employment', has risen
like a phoenix seriously impairing the constitutional
scheme. Such orders are passed apparently in
exercise of the wide powers under Article 226 of the
Constitution of India. Whether the wide powers under
Article 226 of the Constitution is intended to be used
for a purpose certain to defeat the concept of social
justice and equal opportunity for all, subject to
affirmative action in the matter of public employment
as recognized by our Constitution, has to be seriously
pondered over. It is time, that Courts desist from
issuing orders preventing regular selection or
recruitment at the instance of such persons and from
issuing directions for continuance of those who have
not secured regular appointments as per procedure
established. The passing of orders for continuance,
tends to defeat the very Constitutional scheme of
public employment. It has to be emphasized that this
is not the role envisaged for High Courts in the
scheme of things and their wide powers under Article
226 of the Constitution of India are not intended to
be used for the purpose of perpetuating illegalities,
irregularities or improprieties or for scuttling the
whole scheme of public employment. Its role as the
sentinel and as the guardian of equal rights
protection should not be forgotten.”
In State of Karnataka v. Uma Devi (supra) a
Constitutional Bench of Hon'ble Supreme Court comprising of
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five Judges was dealing with a reference made to it in following
terms :-
1. "Apart from the conflicting opinions between the
three-Judge Bench decisions in Ashwani Kumar v.
State of Bihar, State of Haryana v. Piara Singh and
Dharwad Distt. P.W.D. Literate Daily Wage
Employees Assn. v. State of Karnataka on the one
hand and State of H.P. v. Suresh Kumar Verma,
State of Punjab v. Surinder Kumar and B.N.
Nagarajan v. State of Karnataka on the other, which
have been brought out in one of the judgments
under appeal of Karnataka High Court in State of
Karnataka v. H. Ganesh Rao, decided on 1.6.2000,
the learned Additional Solicitor General urged that
the scheme for regularization is repugnant to Articles
16(4), 309, 320 and 335 of the Constitution and,
therefore, these cases are required to be heard by a
Bench of Five learned Judges (Constitution Bench).
2. On the other hand, Mr. M.C. Bhandare, learned
senior counsel, appearing for the employees urged
that such a scheme for regularization is consistent
with the provision of Articles 14 and 21 of the
Constitution.
3. Mr. V. Lakshmi Narayan, learned counsel,
appearing in CCs Nos.109-498 of 2003, has filed the
GO dated 19.7.2002 and submitted that orders have
already been implemented.
4. After having found that there is conflict of opinion
between three Judges Bench decisions of this Court,
we are of the view that these cases are required to
be heard by a Bench of five learned Judges.
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5. Let these matters be placed before Hon'ble the
Chief Justice for appropriate orders."
Hon'ble Supreme Court while noticing the
constitutional schemes for public employment accepted the need
of engaging persons on temporary basis or on daily rates, but
shown its concern for regularising such persons against regular
posts ignoring the constitutional scheme for public employment.
The initial consideration of the issue by Hon'ble Apex Court in
the case aforesaid reads as under :-
“12. .....there may be occasions when the sovereign
State or its instrumentalities will have to employ
persons, in posts which are temporary, on daily
wages, as additional hands or taking them in without
following the required procedure, to discharge the
duties in respect of the posts that are sanctioned and
that are required to be filled in terms of the relevant
procedure established by the Constitution or for work
in temporary posts or projects that are not needed
permanently. This right of the Union or of the State
Government cannot but be recognized and there is
nothing in the Constitution which prohibits such
engaging of persons temporarily or on daily wages,
to meet the needs of the situation. But the fact that
such engagements are resorted to, cannot be used
to defeat the very scheme of public employment. Nor
can a court say that the Union or the State
Governments do not have the right to engage
persons in various capacities for a duration or until
the work in a particular project is completed. Once
this right of the Government is recognized and the
mandate of the constitutional requirement for public
-35-
employment is respected, there cannot be much
difficulty in coming to the conclusion that it is
ordinarily not proper for courts whether acting under
Article 226 of the Constitution or under Article 32 of
the Constitution, to direct absorption in permanent
employment of those who have been engaged
without following a due process of selection as
envisaged by the constitutional scheme.
13. What is sought to be pitted against this
approach, is the so called equity arising out of giving
of temporary employment or engagement on daily
wages and the continuance of such persons in the
engaged work for a certain length of time. Such
considerations can have only a limited role to play,
when every qualified citizen has a right to apply for
appointment, the adoption of the concept of rule of
law and the scheme of the Constitution for
appointment to posts. It cannot also be forgotten
that it is not the role of courts to ignore, encourage
or approve appointments made or engagements
given outside the constitutional scheme. In effect,
orders based on such sentiments or approach would
result in perpetuating illegalities and in the
jettisoning of the scheme of public employment
adopted by us while adopting the Constitution. The
approving of such acts also results in depriving many
of their opportunity to compete for public
employment.
26. ....why should the State be allowed to depart
from the normal rule and indulge in temporary
employment in permanent posts? This Court, in our
view, is bound to insist on the State making regular
and proper recruitments and is bound not to
-36-
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent -- the distinction
between regularization and making permanent, was
not emphasized here -- can only encourage the
State, the model employer, to flout its own rules and
would confer undue benefits on a few at the cost of
many waiting to compete.”
While deprecating the practicing of appointments by
way of regularisation the Apex Court emphasised need of regular
appointment on public posts as per the constitutional scheme.
The observation made by the Apex Court in this regard is “by
and large what emerges is that regular recruitment should be
insisted upon, only in a contingency an ad hoc appointment can
be made in a permanent vacancy, but the same should soon be
followed by a regular recruitment and that appointments to nonavailable
posts should not be taken note of for regularization.
The cases directing regularization have mainly proceeded on the
basis that having permitted the employee to work for some
period, he should be absorbed, without really laying down any
law to that effect, after discussing the constitutional scheme for
public employment.”
The most important feature of this judgment is
declaration of Rule of equality in public employment as basic
feature of our Constitution. As per Hon'ble Supreme Court,
“adherence to the rule of equality in public employment is a
-37-
basic feature of our Constitution and since the rule of law is the
core of our Constitution, a Court would certainly be disabled
from passing an order upholding a violation of Article 14 or in
ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms of the
relevant rules and after a proper competition among qualified
persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the appointment comes to an
end at the end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the same would
come to an end when it is discontinued. Similarly, a temporary
employee could not claim to be made permanent on the expiry
of his term of appointment. It has also to be clarified that merely
because a temporary employee or a casual wage worker is
continued for a time beyond the term of his appointment, he
would not be entitled to be absorbed in regular service or made
permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due process of
selection as envisaged by the relevant rules.”
The theory of legitimate expectation of an employee
for regularisation in service has not been accepted by the Court.
The discussion made in this regard reads as under:-
-38-
“47. When a person enters a temporary employment
or gets engagement as a contractual or casual
worker and the engagement is not based on a proper
selection as recognized by the relevant rules or
procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual
in nature. Such a person cannot invoke the theory of
legitimate expectation for being confirmed in the
post when an appointment to the post could be made
only by following a proper procedure for selection
and in concerned cases, in consultation with the
Public Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully
advanced by temporary, contractual or casual
employees. It cannot also be held that the State has
held out any promise while engaging these persons
either to continue them where they are or to make
them permanent. The State cannot constitutionally
make such a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief of
being made permanent in the post.”
It was held by Hon'ble Supreme Court that the need
of regularisation of service due to its long span is nothing to do
with the concept of equality and also to the right of life. While
examining this aspect, Hon'ble Supreme Court held as under:-
“48. .....There is no fundamental right in those who
have been employed on daily wages or temporarily
or on contractual basis, to claim that they have a
right to be absorbed in service. As has been held by
-39-
this Court, they cannot be said to be holders of a
post, since, a regular appointment could be made
only by making appointments consistent with the
requirements of Articles 14 and 16 of the
Constitution. The right to be treated equally with the
other employees employed on daily wages, cannot
be extended to a claim for equal treatment with
those who were regularly employed. That would be
treating unequals as equals. It cannot also be relied
on to claim a right to be absorbed in service even
though they have never been selected in terms of
the relevant recruitment rules. The arguments based
on Articles 14 and 16 of the Constitution are
therefore overruled.
49. It is contended that the State action in not
regularizing the employees was not fair within the
framework of the rule of law. The rule of law compels
the State to make appointments as envisaged by the
Constitution and in the manner we have indicated
earlier. In most of these cases, no doubt, the
employees had worked for some length of time but
this has also been brought about by the pendency of
proceedings in Tribunals and courts initiated at the
instance of the employees. Moreover, accepting an
argument of this nature would mean that the State
would be permitted to perpetuate an illegality in the
matter of public employment and that would be a
negation of the constitutional scheme adopted by us,
the people of India. It is therefore not possible to
accept the argument that there must be a direction
to make permanent all the persons employed on
daily wages. When the court is approached for relief
by way of a writ, the court has necessarily to ask
itself whether the person before it had any legal right
-40-
to be enforced. Considered in the light of the very
clear constitutional scheme, it cannot be said that the
employees have been able to establish a legal right
to be made permanent even though they have never
been appointed in terms of the relevant rules or in
adherence of Articles 14 and 16 of the Constitution.
51. The argument that the right to life protected by
Article 21 of the Constitution of India would include
the right to employment cannot also be accepted at
this juncture. The law is dynamic and our
Constitution is a living document. May be at some
future point of time, the right to employment can
also be brought in under the concept of right to life
or even included as a fundamental right. The new
statute is perhaps a beginning. As things now stand,
the acceptance of such a plea at the instance of the
employees before us would lead to the consequence
of depriving a large number of other aspirants of an
opportunity to compete for the post or employment.
Their right to employment, if it is a part of right to
life, would stand denuded by the preferring of those
who have got in casually or those who have come
through the back door. The obligation cast on the
State under Article 39(a) of the Constitution of India
is to ensure that all citizens equally have the right to
adequate means of livelihood. It will be more
consistent with that policy if the courts recognize that
an appointment to a post in government service or in
the service of its instrumentalities, can only be by
way of a proper selection in the manner recognized
by the relevant legislation in the context of the
relevant provisions of the Constitution. In the name
of individualizing justice, it is also not possible to
shut our eyes to the constitutional scheme and the
-41-
right of the numerous as against the few who are
before the court. The Directive Principles of State
Policy have also to be reconciled with the rights
available to the citizen under Part III of the
Constitution and the obligation of the State to one
and all and not to a particular group of citizens. We,
therefore, overrule the argument based on Article 21
of the Constitution.”
The ratio of judgment in State of Karnataka v. Uma
Devi (supra), while dealing with the issue pertaining to
regularisation of the persons in service against public posts, who
at some point of time were employed either in some scheme or
against the public posts on daily rate basis/contractual
basis/casual basis, is that equality and equity are not the
concepts applicable for regularisation of the persons in service
against public posts, if were employed dehor the Rules. The
Court found that as a matter of fact such regularisation causes
injury to the doctrine of equality and fairness in public
employment, as that denies opportunity of participation in
process of recruitment to the public employment to other eligible
persons, who were not employed earlier.
The cases in hand are not of regularisation, but of
direct recruitment by a process of selection. True it is, the
excessive weightage may cause injury to the fairness desirable
in process of selection, but before coming to that issue we would
like to mention that under Rule 273 of the Rules of 1996 and
-42-
Rule 23 of the Rules of 1998 the weightage is given to the
persons who were appointed in the schemes introduced in
MGNREGA or by the Department of Panchayat Raj and Rural
Development. The persons so employed were recruited on
contractual basis or otherwise after following the norms
prescribed under the scheme concerned. The posts under the
scheme were/are not supposed to be filled in as per the Rules
framed under Article 309 of the Constitution of India or as per its
proviso, but by the norms given in the scheme itself. It is also
pertinent to mention that the post under the schemes were/are
planned posts and appointment to these posts does not create
any status for the persons so employed. The Government of
Rajasthan now wants to run developmental programmes at its
own and as such is in need of employees on various posts. The
developmental programmes sought to be executed are
alternative to the schemes earlier in currency, as such a
weightage is given to the persons having experience. The cases
of the persons employed by a fair process of selection as
prescribed in the schemes concerned, for whom the weightage is
applied under the relevant provisions, cannot be compared with
the cases of the persons employed in contravention of Rules or
without following the procedure given under the Rules or made
entry in service from back door.
The resultant is that providing of weightage to the
experienced hands does not violate or frustrate the law laid
-43-
down by Hon'ble Supreme Court in the case of State of
Karnataka v. Uma Devi (supra).
QUESTION NO.6 :-
The important question now deserves consideration
is about the quantum of weightage given in the form of bonus
marks. The bonus marks as already stated are prescribed in
three layers against the experience. An aspirant having
experience of service for a year or more but less than two years
is entitled to have 10 bonus marks, an aspirant having
experience of two years or more but less than three years is
entitled to have 20 bonus marks and 30 bonus marks are
earmarked for the persons having service experience of three or
more years.
The question referred for adjudication is that whether
the grant of bonus marks to the extent above is not arbitrary
and discriminator, specially where the marks kept for educational
qualification are 70 only?
Learned counsels, who are supporting the bonus
marks settled by the State Government, submitted that the
Court is not supposed to assess the quantum of weightage given
that being absolutely within the domain of the Government. The
objection advanced is not at all acceptable for the simple reason
-44-
that every action of the State authority is open for judicial
review, if that suffers from arbitrariness or unfairness being
antithesis to the fundamental rights protected under Article 14 of
the Constitution of India.
While coming to the main issue it shall be
appropriate to understand the mode of determining merit of the
aspirants who are entitled for bonus marks and who are not
entitled for that.
As per the respondents, 70% of the marks obtained
in eligibility qualification are to be taken first and then bonus
marks are to be added, if aspirant is entitled for the same. It
shall be more easy to understand this mode through
illustrations:-
Illustration No.1 :-
If an aspirant for appointment had secured 70 marks
in eligibility qualification, then 70% of it is to be taken as marks
against the qualification and that would be 49. If this person is
having no experience or the experience less than one year, then
the merit marks for him shall be 49 only. At the same time if a
person secures 33 marks in his eligibility qualification, then 70%
of it i.e. 23.1 marks shall be taken into consideration against the
qualification. If this person is having service experience of three
-45-
years or more, then he shall be entitled for 30 bonus marks. By
adding these marks, his merit mark shall be 23.1 + 30 = 53.1.
In this way the person having only 33 marks in qualifying
examination shall march over the person having 70 marks in
educational qualification. The result of giving bonus marks upto
30 as illustrated above results into beating of a person having 70
marks by the person having 33 marks only.
Illustration No.2 :-
Suppose a person not entitled for bonus marks is
having 100 marks out of 100 in his eligibility qualification, as per
the formula applied by the respondents his marks in educational
qualification shall be treated as 70 and these shall be his merit
marks also. Now other person who is entitled for 30 bonus marks
has secured 60% marks in his educational qualification. The 70%
of 60 marks shall be 42 and by adding 30 bonus marks to it, he
will secure 72 merit marks. The bonus availing person shall
march over the person who secured 100% marks in educational
qualification.
Illustration No.3 :-
Another interesting illustration shall be where a
person secures 90% marks in educational qualification and his
marking against this head as per the respondents shall be 90 x
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70/100 = 63 only. At the same time a person is having 65%
marks in his eligibility educational qualification, but he is entitled
for 20 bonus marks. . The merit marks of this person shall be 65
x 70/100 = 45.5 + 20 = 65.5. Here in this case the gap of 25
marks in educational qualification is covered by the bonus marks
those may even be less than 20.
Illustration No.4 :-
In a case where a person secures 33 marks in
educational qualification but entitled for 10 bonus marks shall
have 33.1 (23.1 + 10) merit marks. This fellow will march over a
person having 47% marks as the merit marks of this person
shall be treated as 47 x 70/100 = 32.9.
The illustrations clearly indicate major role of bonus
marks in elevating the merit marks to a very high level. True it
is, the weightage against experience is having its importance and
positive factors, but in no manner it may have absolute
supremacy vis-a-vis the educational qualification. The
educational qualification is the basic eligibility and the weightage
is only an essence of experience. The essence can provide
fragrance to a body but cannot be identified as body itself. The
bonus marks to the extent of 30 as assigned by the respondents
clearly indicates the throttling of educational merit by service
experience. The bonus marks fixed by the respondents are not
-47-
maintaining required balance with the educational
qualification, as such the repression of educational merit as
illustrated above is highly unjust and arbitrary. The State
Government while determining the bonus marks should
have settled a balance in basic eligibility and the
weightage i.e. to be assigned against a service experience.
The weightage in no way could have absolute supremacy
in determining merit. We would also like to mention here
that as per the respondents themselves about 14000 persons
coming in select list of 17000 persons have availed bonus marks.
The statistics given is quite startling and sufficient to establish
undue advantage of higher bonus marks against the experience.
The advantage so given, thus, is declared bad.
The State Government is at liberty to settle a fair
weightage under the provisos in question. The important
question is that what should be the “fair weightage”? We have
not come across any precedent discussing or defining “fair
weightage”. However, it is well settled that fairness is a quality
that keep equitable balance in homogeneous group as well as in
a group having reasonable classification. In the instant matter
the homogeneous group of aspirants for appointment is having a
rational and reasonable classification on basis of service
experience. A fair and equitable balance among these classified
persons means a little elevation to the experience holders
looking to the nature of service and skill available with them but
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not such a high elevation that may result into falling of the cap of
other classified group while measuring elevation given.
Hon'ble Supreme Court in several cases found the
marks from 12.5% to 15% reasonable for personality
assessment through viva voce/interview, while making
appointments to lower category posts. The experience is also
feather in personality of an incumbent and posts in question are
the lowest posts in their cadre, as such, in our opinion the
maximum bonus marks those can be awarded against the
experience should be within the cap of 15%.
As a consequent to the entire discussion above, our
answers to the referred questions are as follows:-
(1)The respondents can make recruitment to the posts in the
services concerned even without conducting written
examination;
(2)Weightage in the form of bonus marks against service
experience can be given while adhering the eligibility
prescribed for various posts under the existing Rule 266 of the
Rules of 1996 and there shall be no violation of Articles 14 and
16 of the Constitution of India in the event of extending
weightage against service experience;
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(3)The respondents did not commit any wrong while extending
weightage in the form of bonus marks against the service
experience as per proviso to Rule 23 of the Rules of 1998 and
such grant of weightage in no manner is in violation of Rule 15
of the Rules of 1998;
(4)For providing bonus marks there is no need to make any
amendment in the qualification prescribed in the Schedule
appended with the Rules of 1998.
(5)The grant of weightage in the form of bonus marks while
making recruitment to the post in the services in question is
not at all in contravention of the law laid down in the case of
State of Karnataka v. Uma Devi (supra), and it is also not an
effort to frustrate the law laid down in the case aforesaid; and
(6)The grant of bonus marks to the extent of 30 marks is unjust,
arbitrary and unfair, hence, is declared illegal and is quashed.
The State Government may grant the weightage in the form of
bonus marks against service experience within the cap of 15
marks.
With the answers above, let the writ petition i.e.
SBCivil Writ Petition No.4144/2013, Archana v. State of
Rajasthan & Ors., be placed before Single Bench for its
adjudication on other merits of the case.
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DBCivil Special Appeal No.630/2013, State of
Rajasthan & Ors. v. Archana & Anr.; SBCivil Writ Petition
No.9780/2013, Virendra Ragwani v. State of Rajasthan & Ors.;
SBCivil Writ Petition No.10236/2013, Ranveer Deharu & Ors. v.
State of Rajasthan & Ors. and DBCivil Writ Petition
No.5583/2013, Nagendra Singh Chouhan v. State of Rajasthan &
Ors., stand dismissed.
(VIJAY BISHNOI),J. (GOVIND MATHUR),J.
MathuriaKK/PS

Source : http://courtnic.nic.in/jodh/judfile.asp?ID=CW&nID=4144&yID=2013&doj=9/25/2013