VERMA, J. - (1.) THE present special appeal is directed against the order of the learned Single Judge passed in S. B. Civil Writ Petition No. 1107/94 decided on 27. 2. 1997.
(2.) THE main contentions as raised for consideration are: (i) that the circumstances of the present case when the petitioner is said to have availed the three chances in 1993 for qualifying the Patwar Examination under Rule 282 of the Rajasthan Land Revenue (Land Records) Rules, 1957 (here-in-after referred to as the rules) he had qualified in all the subjects in the examination except one subject and for the reason that his aggregate marks were more than 33%, therefore, he was entitled to appear once again in one subject only as per Rule 282 (iv); (ii) that the appellant had already served about 20 years as Patwari and in such a situation he has got ample experience on the job of Patwari and in such circumstances it shall be highly unjust and in-appropriate for the respondents to terminate his services for the reason that he had not qualified in one subject only in third chance as per the rules. It is necessary to narrate certain facts as averred in the pleadings. The petitioner was initially appointed as work charged Patwari for a period of six months in the year 1976 in Irrigation Department. He appeared in Patwar examination in July 1976, however, this examination of 1976 itself was cancelled. The petitioner was again appointed in the year 1977 in the same capacity. He again appeared in Patwar examination held in the year 1978 and again in the year 1980, but failed. He was appointed as Patwari again on 5. 4. 1980. He wanted to appear in the examination once again, but he was not allowed to appear in the examination on the ground that as contained in Rule 282 (5) (kha) of the rules, it was decided that he had already availed of three chances and, therefore, as per rules his services were to be terminated and were so terminated on 26. 12. 1980. Aggrieved against the order of termination the petitioner had filed a writ petition being S. B. Civil Writ Petition No. 112/1981 which was decided on 25. 4. 1991 which was allowed. The contention of the petitioner in S. B. Civil Writ Petition No. 112/1981 (here-in-after referred to as `earlier writ petition') was that because of the reason that in the examination held in 1976 even though he had appeared, but the examination itself was cancelled and, therefore, it could not be said that the petitioner had availed three chances of appearing in the examination and had also appeared in such examination on three occasions. The contention of the petitioner was accepted by this court and it was held that examination of 1976 could not be counted and thus the petitioner had availed the chances of appearing only in two examinations and not three. The earlier termination order passed on 26. 12. 1980 had been stayed by this court and the petitioner continued to be in service and is still in service. From the facts and the judgment in the earlier writ petition, it is clear that the direction had been issued to allow the petitioner to appear in the examination for the third time, in consequence to the decision the appellant did appear in the year 1993, result of which was declared and the detailed marks have been attached as Annexure-1. The petitioner did obtain more than 33% as aggregate marks in the examination held in 1993, but failed in one subject. The appellant contends and had so contended before the learned Single Judge as well that his services could not have been terminated vide the impugned order for the reason that he was to be allowed to appear in the subject in which he had failed, as per Rule 282 (iv) whereas the contention of the respondent is that the benefit of appearing in one subject when the candidate obtains 33% marks in aggregate cannot be made available to the appellant as in all circumstances he has to be considered as failed. The controversy is narrowed down only to the fact whether in the circumstances if a candidate/ Patwari fails in one subject, but obtains aggregate marks 33% or more in total as per the rule, whether he would be entitled to appear and availed of the chances in that subject. Obviously, in our opinion, to hold otherwise would amount to negativing the provisions of the rule itself which rule reads as under:- " Rule 282 (1) The Patwar Examination shall be conducted under the direction of the Board of Revenue. (iv) To pass the Patwar Examination, it is necessary to obtain at least 33% of the minimum marks in each subject. But a candidate who fails to secure 33% of marks in any one subject only except but obtains 33% in the aggregate may be allowed to appear in that subject alone in the next examination and on passing the examination in the subject shall be declared to have passed the examination. " The rule obviously has been framed for the purpose and with the intention that the candidates who have improved and have obtained qualifying marks in all the subjects except one, should not be thrown out of the services and be allowed to appear in the next examination in that subject only. To hold otherwise in the present case would amount to render the laudable clause in the said rules as defunct. This clause of Rule is applicable to all of the examination in which the candidate appears. The intention is to allow the petitioner to clear the examinations in that subject in which he fails but obtains otherwise aggregate marks upto 33% or more in the remaining subjects in total. In our opinion, the contention of the respondents cannot be accepted and the petitioner is entitled to avail the benefit of this rule by appearing in the subject whenever examinations are held.
(3.) THE writ petition can be allowed on the alternative submission made by the counsel for the petitioner that the petitioner has already worked for 20 years as Patwari and even if he has not been able to qualify in only one subject relating to general paper and when he is said to have qualified in the subjects relevant to the working of Patwari such as Land Record Rules, Preparation of the revenue documents, measurements, Revenue law, survey theory and survey practical, his experience is sufficient to allow him to continue in job instead of terminating his services at this juncture when he cannot even avail of any other alternative job because of age factor. It is the contention that even according to the service rules if the appellant petitioner had sought voluntary retirement then he would have been allowed the pension as if he had retired from service and to terminate his services because of the above reason would play havil on his family life. THE petitioner relies on a Supreme Court judgment in the case of State of Punjab vs. Shamlal Murari (1), wherein in identical circumstances the Apex Court had held that failure to pass department test by the Government servant after having put in more than 20 years of service cannot stand in the way of his enjoying the benefits of increment etc. It was further held that the courts are to do justice and not to wreck this end product on technicalities. In view of the above-said discussion, we are of the view that the judgment of the learned Single Judge cannot be sustained and the writ petition is to be allowed. However, because of the reason that the petitioner has not passed in one subject only, he shall be allowed to appear in that subject and shall not be given any promotion until he passes that subject and for the reason that he had already put in 20 years of service, we hold that to terminate his service at this juncture shall not be appropriate and we allow him to continue in service on this count as well. The special appeal is accepted and the writ petition is also allowed with the above-said directions. No order as to costs. . ;