BALIA, J. - (1.) HEARD learned counsel for the parties. This appeal is directed against the judgment of the learned Single Judge dated 12. 4. 99 dismissing the writ petition filed by the petitioner.
(2.) THE petitioner was an aspirant of being appointing as a teacher grade III in pursuance of advertisement dated 15. 6. 98 issued by Zila Parishad, Sri Ganganagar. However, the petitioner did not find place in merit and his candidature was rejected and he was not given appointment. The sole contention of the petitioner is that while evaluating him merit as per Rule 266 marks obtained by him at Secondary Examination which he has passed in 1997 after completing his Post Graduate in 1990 and B. Ed. in 1993 by way of improving his per-centage of marks over original percentage of marks obtained by him in Secondary Examination in the year 1983 ought to have been taken in consideration. The learned counsel contended that there is nothing in the Rules which suggests that marks obtained in the first examination to which he was successful in the qualifying examination only be taken into consideration and, therefore, the consideration of the petitioner by excluding the marks obtained by him at Secondary Examinations held in 1997 was denial of equal opportunity in the matter of employment in violation of Art. 16. He has also placed reliance on circular issued by the Govt. in its Panchayat Deptt. on 2. 7. 95 under Rule 17 of the Rajasthan Panchayat Samiti and Zila Parishad Service Rules 1959 which interalia required that if a candidate has appeared in the subsequent examination for improving the marks in earlier examination in the qualifying examination, then his candidature may be considered on the marks obtained at the subsequent examination. In this connection he also contended that the order of the State Govt. issued on 10. 6. 98 stating exactly contrary to what has been stated in the earlier circulars could not control the recruitments in question as it will amount to amendment of the rules by executive order. As there is no prohibition against consideration of better marks obtained at the subsequent examination in the rules, the same cannot be excluded by executive order. In this connection the learned counsel has relied on Division Bench judgment of this court namely The State of Raj. & Ors. vs. Ms. Chanani Vishnoi & Anr. (1), and Surendra Kumar & Ors. vs. State of Raj. & Anr. Learned counsel for the respondents has on the other side urged that the learned Single Judge was right in dismissing the writ petition filed by the petitioner because the circular relied upon by the learned counsel for the appellant before the learned Single Judge had been issued under the Rajasthan Panchayat Samiti and Zila Praishad Service Rules, 1959 which were framed under the Panchayat Samiti & Zila Parishad Act of 1959. With the commencement of Rajasthan Panchayati Raj Act 1994 under new constitutional Scheme, the Rajasthan Panchayat Samiti and Zila Parishad Act alongwith Rajasthan Panchayat Act, 1953 and rules framed thereunder stood repealed. Therefore, the circulars issued under the repealed rule cannot survive thereafter.
(3.) MOREOVER, it was also urged by the learned counsel for the respondents, that with the commencement of the Rajasthan Panchayati Raj Rules 1996, which laid down the crietarion procedure and method of selection for appointment to different posts under the Panchayati Raj. institutions vide notification dated 30. 12. 96. Governing the selection and recruitment to any post under the Panchayati Raj Institution was occupied field of the Act of 1994 and Rules of 1996 framed thereunder. The executive order issued in exercise of power conferred under the repealed rules cannot survive for the benefit of the petitioner thereafter. He also pointed out that Division Bench judgments relied upon by the learned counsel for the appellant do not help the petitioner in respect of the controversy raised in this case which depends purely upon the consideration of rules laying down, eligibility crietarion and evaluation of merit. The circular issued on 16. 6. 98 is merely explanatory to the Rules of 1996 and does not restrict or expand the provisions of the Rules in any manner. The view expressed in the circular only reveals the correct position under the rules. He also pointed out, that the decisions relied upon by the learned counsel for the appellant are otherwise distinguishable and have been given in context entirely different from the context in which the controversy has been raised in the present case. He has prayed for the dismissal of the appeal as he has prayed for the writ petition before the learned Single Judge. There is no dispute about, as has been stated by the learned counsel for the appellant, academic career graph of the petitioner. The petitioner appellant has passed his secondary examination in 1983 with supplementory and in 1984, next Higher examination namely Hr. Secondary Examination with IIIrd division acquiring 36. 57 per-cent marks, in 1988 he acquired graduation degree with 47. 1 percent marks in the pass category and in the year 1990 the petitioner obtained M. A. degree in Economics with 48 per cent marks. Thereafter in 1991 he was trained in education by acquiring B. Ed. degree. For acquiring all these higher qualifications, the basic examination from which he proceeded further was Secondary Examination 1983. In 1997 the petitioner appeared again at the secondary examination and reached to the foundation once again namely Secondary Examination with the Board of Secondary Education for Rajasthan. This time he acquired 56 per-cent marks. ;