KOKJE, J. - (1.) THESE two appeals raise a similar question and therefore, are being decided together:
(2.) IN appeal No. 596/97, there are nine appellants, but appellant in Government service and the result of the appeal is not going to affect them. The surviving appellant No. 2 Jagdish Prasad, appellant No. 5 Hemant and appellant No. 6 Subhash Chandra will only be affected by the result of the appeal and therefore, for all practical purposes, they are the only contesting appellants. Likewise, in Appeal No. 828/97, out of the seven appellants, Appellant Nos. 3, 4, 5, 6 and 7 have been absorbed in the government service and appellant No. 1 Puran and appellant No. 2 Om Prakash Dhaka are the only contesting appellants who will be affected by the result of the appeal. In both the special appeals the writ petitioners alleged that they had applied for being appointed as Primary School Teacher as they were eligible for the post under the Rajasthan Panchayat Samitis and Zila Parishad Service Rules, 1959. All of them had passed their Secondary School Examination from the Board of Secondary Education and had also passed Higher Secondary, B. A. , B. Ed. examinations. After obtaining higher qualifications than the Higher Secondary examination, they again appeared at the Secondary examination for improving their marks and division as per the provisions and regulations of the Board of Secondary Education. Rajasthan, Ajmer. Their grievance is that the marks obtained by them at such Secondary Examination subsequently taken are not being reckoned by the respondents for determination of their merit and the respondents are insisting that the marks obtained by them at the original examination will only be counted. Appellants also submitted that a circular was issued by the State Govt. on 5. 5. 93 in exercise of powers u/rule 17 (2) of the Rules, in which no mention was made about the condition that the marks obtained at the original examination will only be taken into consideration. On 24. 7. 95, another circular in exercise of the same power was issued without specifying that the marks obtained at the original Secondary/ Higher Secondary examination will only be considered. On the contrary, this circular in para 7 (b) stated that if a candidate produces a mark-sheet for the purpose of impro- vement of division/marks before the last date of application or before the process for determination of merit starts, it shall be considered while determining merit. This clearly indicated that the marks obtained at the subsequent examination for improvement of division/improvement of marks were to be considered for determining merit. These instructions were in force on the date of the relevant advertisement. On 20. 07. 1996, another circular was issued in exercise of powers u/rule 17 of the Rules which also provided for submitting the mark-sheet of the subsequent examination taken for the improvement of division/improvement of marks before the last date of application or before commencement of the process of determination of merit. Appellants case is that because of the circular dated 20. 7. 1996, their revised marks are not being taken into consideration and because of that, employment has been denied to them. Learned Single Judge has turned down the contention of the appellants on the ground that there was no justification for considering the improved merit as reflected in the marks obtained in the second attempt by a candidate taken after a long lapse of time and after having passed subsequent higher examination and in some cases, when the candidates had obtained the degree of Ph. D. also. The learned Single Judge dismissed the writ petitions filed by the appellants and aggrieved by that, the appellants have filed these appeals. Learned counsel for the appellants submitted that when the merit is to be determined on the basis of marks obtained at the secondary examination, a candidate having obtained higher degrees, has no relevance and for deciding the question as to whether a candidate was entitled to his improved marks being reckoned or not, it is absolutely irrelevant whether he has obtained the higher qualification or not. Learned counsel submitted that for preparation of the merit list on the basis of marks obtained at the secondary examination, the only relevant thing is as to what are the marks obtained by the candidate in that examination. Whether the marks were obtained in one attempt or more than one attempt, is absolutely irrelevant. Learned counsel also submitted that after the advertisement was issued, no amendment could be made in the notification changing the very basis of preparation of the merit list.
(3.) LEARNED counsel for the respondents supported the impugned order. Learned counsel for the appellants relied upon several decisions in support of their case. A decision of the Division Bench of this Court in The State of Rajasthan and others vs. M. S. Chanani Vishnoi and another (1), was cited in support of the contention that the marks obtained in the subsequent examination were required to be taken into consideration. The case of P. Mahendran and others Vs. State of Karnataka and others (2), was cited in support of the contention that once the process of selection starts, any amended Rules coming into force after the start of the process of selection, shall be implemented prospectively and would not affect the selection. Another decision of this court in Rajvendra and others vs. State of Rajasthan and others (3), was also cited for the same purpose. ;