Sunil Kumar Garg, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 8.8.2001 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order dated 20.12.2000 (Annex. 11) passed by the Dy. Director (Secondary) Education, Ajmer Division, Ajmer by which the petitioner was placed at serial No. 20A in the select list be declared illegal, unjust and unconstitutional and be quashed and set aside qua the petitioner and further more, the respondents be directed to calculate the actual number obtained by the petitioner in the degree of Bachelor of Physical Education (67.518%) and then prepare a fresh merit list and, thereafter, appoint the petitioner on the post of Physical Training Instructor Gr. II (for short "PTI Gr. II") prior to above the respondents No. 4 and 5 in pursuance of the advertisement Annex. 7.
(2.) THE case of the petitioner as put forward by him in this writ petition is as follows: The petitioner passed Secondary School Examination from the Board of Secondary Education, Rajasthan, Ajmer in the year 1986 and a copy of the mark -sheet of the said Examination is marked as Annex. 2. Thereafter, the petitioner passed Higher Secondary Examination in the year 1988 from the said Board. The petitioner also passed his pre -degree Science Examination from the University of Ajmer in the year 1990. Thereafter, the petitioner sought admission to the Bachelor of Physical Education Course and completed the three years degree course in the year 1995 from Maharashi Dayanand Saraswati University, Ajmer (for short "the University") and a copy of the mark -sheet issued by the University in the year 1996 is marked as Annex. 3 and the copy of the Provisional Certificate Showing that the petitioner passed the Bachelor of Physical Education Examination in 1995 is marked as Annex. 4. The further case of the petitioner is that he stood first in the Bachelor of Physical Education Part -III Examination, 1995 and secured 1823 marks out of 2700 marks and a copy of the Certificate issued by the University in this respect is marked as Annex. 5. The further case of the petitioner is that he is an outstanding sports -man and he has played at various levels right from District to University level, which is equivalent to the National Level, during his school and college education. The copies of the Certificates of Sports issued by the University in the years 1992, 1994 and 1995 are collectively marked as Annex. 6. Apart from this, the petitioner had participated in the Scout and was adjudged First Class Scout and he was also awarded Jamburi Award Score Card for having participated in the Tenth National Jamburi held from 3rd to 9th Jan. 1986 at Bangalore. The further case of the petitioner is that the respondent No. 3 Dy. Director (Boys) Department of Education, Ajmer Division, Ajmer advertised the vacancies for the posts of PTI Gr. II by publishing the advertisement Annex. 7 in newspaper inviting the applications from the eligible canddates and fixed the date for interview on 19 -20.5.1997 at Ajmer. The petitioner having fully qualified and eligible for appointment on the post of PTI Gr. II submitted the application alongwith the requisite documents and he was interviewed on 19.5.1997. According to the petitioner, the interview was held only for verifying the documents and contains no marks and accordingly, the other testimonials were verified from their originals and as such the merit list was to be prepared on the basis of the documents and testimonials submitted by the candidates. The further case of the petitioner is that he was having a total of 97.518% marks on the strength of education, sports and rural area resident. According to the petitioner, he obtained 67.518% marks in the degree of Bachelor of Physical Education Examination, bonus marks for rural area resident 15% and bonus marks for National Level Sports 15% and total 97.518% marks. However, the respondents while preparing the merit list of the candidates did not include the name of the petitioner in the merit list. According to the petitioner, though he secured higher marks than the respondents No. 4 and 5, but he was not given appointment and on the contrary, the respondents No. 4 and 5 were appointed on the post of PTI Gr. II. The further case of the petitioner is that the respondents did not consider his case merely on the ground that his qualification was Bachelor in Physical Education three years Course and was not holding the Diploma in Physical Education. Since the petitioner was not selected to the post of PTI Gr. II, he filed a writ petition before this Court being S.B. Civil Writ Petition No. 2584/97 and that writ petition was decided by this Court through order dated 9.7.1999 (Annex. 9) in the following manner: The learned Counsel for both the parties submitted that the controversy raised in this writ petition is covered by the judgments of this Court in State of Rajasthan and Ors. v. Umesh Jangid and 19 Ors.,, 1998 (1) WLC (Raj.) 287 and Ahok Kumar Sharma v. State of Raj. and Ors., S.B. Civil Writ Petition No. 6286/96 and batch of cases decided on 21.5.1999. Accepting the submission of the learned Counsel for the parties, this writ petition is also disposed of in terms of the judgments aforementioned. After the decision of that writ petition through order Annex. 9, the petitioner approached the respondent No. 3, but the respondents instead of complying with the order of this Court dated 9.7.1999 (Annex. 9) preferred Special Appeal before this Court against the order of this Court dated 9.7.1999 (Annex. 9) and the same was registered as D.B. Civil Special Appeal No. 1198/99 and while issuing notices in that Special Appeal, the Division Bench of this Court passed an interim order in favour of the petitioner and directed the respondents to keep one post vacant by order dated 7.10.1999 and that Special Appeal was dismissed by the Division Bench of this Court through judgment dated 14.9.2000 (Annex. 10).
(3.) THE further case of the petitioner is that even after dismissal of the Special Appeal, compliance of the order of this Court Annex. 9 dated 9.7.1999 was not made by the respondents and the petitioner was compelled to file a contempt petition before this Court and the same was registered as D.B.C. Contempt Petition No. 181/2000 and that Contempt Petition was decided by this Court through order Annex. 12 dated 17.4.2001 in the following manner: In our opinion, no case is made out for contempt. In fact a detailed reply was filed by the respondents wherein in paragraph 5 it has been clearly stated as follows: (5) That the non -petitioners most respectfully submit that the candidature of the petitioner was considered on 6.1.2001 after taking into consideration of his Three Years Degree in Physical Education and bonus marks for his co -curricular activities i.e. participation in Inter -University Tournament. But, however, he could not be given appointment for being on much lower pedestal. As a matter of fact the answering respondents appointed only 4 candidates on the post of Physical Teacher Gr. II, in pursuance of the advertisement of 1997 -98 in general category and the last candidate appointed has 85.9 marks in his credit. Whereas the petitioner stood at serial No. 20(a) in the merit list having had 81.25 marks. As such the candidature of the petitioner has been duly considered but since he is at much lower pedestal, therefore, could not be appointed. An exact and correct copy of the merit list prepared by the answering respondents after considering the candidature of the petitioner wherein the name of the petitioner stands at serial No. 20(a) is annexed herewith and is marked as Annex. R (1). We accept the reply and dismiss the contempt petition. If the contempt petitioner is aggrieved against the order now passed by the authorities he is at liberty to challenge the same in a manner known to law. The further case of the petitioner is that through the reply just quoted above, respondents have wrongly calculated the educational marks of the petitioner as 51.25% whereas it should have been 67.518% and had the respondents would have calculated the educational marks of the petitioner correctly, his total marks would have come to 97.518% marks exactly and thus, the merit list prepared by the respondents through order Annex. 11 dated 20.12.2000 is not based on correct calculation and therefore, the same qua the petitioner is liable to be quashed and set aside. Hence, this writ petition with the prayers as stated above. A reply to the writ petition was filed by the respondents No. 1 to 3 and their contentions are three -fold: (i) That the candidature of the petitioner was considered by order dated 20.12.2000 (Annex. 11) and he was duly communicated. The petitioner was awarded 51.25 marks for his educational and training qualification in accordance with the directions issued by the Directorate of Primary and Secondary Education, Bikaner on 9.4.1997. It was further submitted that Clause 35 of that Circular dated 9.4.1997 specifically prescribes that merit list shall be prepared in accordance with the earlier circular dated 31.8.1996 which connotes that 75 per cent marks shall be taken into account from the educational qualification and rest of the 25 per cent marks shall be taken into account from training part as the Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter referred to as "the Rules of 1971") prescribes that for the post of Physical Teacher Gr. II, an incumbent must have qualification of Graduate or equivalent examination with diploma in Physical Education, meaning thereby the candidate must have four years qualification if there is school, out of that, one year should be in training part in accordance with the circulars dated 31.8.1996 and 9.4.1997 as the selections were pertaining to the year 1997 -98, therefore, the petitioner was awarded marks in accordance with the directions prevalent at the relevant time i.e. 75 per cent marks, which came to be 51.25 marks. (ii) That after the judgment of this Court in Deepak Kumar Suthar and Anr. v. State of Rajasthan and Ors., RLW 2000 (1) Raj. 157, the petitioner is not entitled for bonus marks. (iii) That the petitioner is seeking relief for the vacancies of the year 1997 -98 of which the select list had expired way back on 31.3.1998 and, therefore, from this point of view also, the petitioner is not entitled to the relief sought for. Hence, the writ petition filed by the petitioner be dismissed.;