PARIHAR, J. - (1.) THE petitioner passed his secondary school examination in the year 1985 from the Board of Secondary Education, Rajasthan, Ajmer as a regular student. Subsequently, he also acquired the qualification of Graduation i. e. Bachelor of Arts in the year 1989 and also passed the B. P. Ed. examination from Amrawati University. It was only in the year 1996 that the petitioner again appeared in the secondary school examination for improving his percentage of marks and passed the said examination with improved marks.
(2.) IN pursuance of the advertisement issued by the respondents on 6. 10. 1996 for appointment to the post of Physical Training INstructor (PTI) Gr. III, the petitioner also submitted his application, however, the application was rejected on the ground that he had submitted the marksheet of improved marks in the secondary school examination and the mark sheet of the earlier secondary school examination of the year 1985 had not been annexed with the application form. While challenging the above rejection letter dated 28. 12. 1996 the petitioner has also challenged clause 24 of the Circular issued by the State Government in regard to the criteria for preparing the merit for selection to the post of Teacher/pti Gr. III for the year 1996-97. Under the above clause it has specifically been mentioned that while preparing the merit, improved marks of the secondary school examination. After having obtained higher qualifications, shall not be considered for preparing the merit and only the marks obtained in the initial secondary school examination shall be taken note of. The controversy in the present case is as to whether the improved marks in the secondary school examination or the original marks in the earlier secondary school examination before obtained higher qualifications should be considered for preparing the merit list for selection to the post of Teacher/pti Gr. III. This controversy, first time, came to be decided by the Division Bench of this court in the case of "om Prakash Sharma vs. State of Rajasthan & Ors. (1 ). While considering the similar clause in the Circular issued by the State Government, the court held that there is a rational behind the insertion of clause 18 of the Circular. A person who studies further may apply for improving his marks after a decade or so, but he can never claim preference over others with improved marks. The same controversy again came to be decided by another Division Bench of this Court in the case of "surendra Kumar & Ors. vs. State of Rajasthan & Anr The Division Bench has held that in absence of any specific rules to the contrary, there is no jurisdiction in act granting benefit of the marks obtained at the subsequent examination of secondary school taken for improving of marks even after passing higher qualifications. The judgment in case of Om Prakash Sharma (supra) was not referred or even cited in the above case.
(3.) WHILE considering the judgment of the Division Bench in the case of Surendra Kumar & Ors. (supra), one of the coordinate Bench of this Court in Surendra Kumar Sharma & Ors. vs. State of Rajasthan (3), held that in view of specific clause in the advertisement and Circular issued by the State Government, improved marks obtained in subsequent examination shall not be considered for the purpose of considering the merit of a candidate. However, another coordinate Bench of this Court in the case of "ramakant Gautam vs. State of Rajasthan & Ors. (4), while considering both the judgments of the Division Bench in case of Surendra Kumar and Om Prakash (supra) (though name of the parties have wrongly been mentioned in the judgment) held that improved marks have to be considered for the purpose of preparing the merit. Judgment of the Single Judge Bench in case of Surendra Kumar Sharma (supra) was again not referred or even cited in the above judgment. The minimum qualifications for the post of PTI/teacher Gr. III has been secondary school examination with relevant training course. There is also no dispute that above posts are lowest in the cadre and the appointment are to be made 100% by direct recruitment. The appointments are to be made under the provisions of the Rajasthan Educational Subordinate Service Rules, 1971. As per Schedule to the above Rules a Committee is to scrutinize the applications and after adjudging the eligibility or otherwise of a candidate, shall prepare a list of the candidates whom they consider suitable for appointment and arrange in order of merit. It is only after recommendations of the Committee that appointments are made by the appointing authority in the order of merit. There is no specific criteria provided under the Rules for preparation of merit. For selection to the above posts, the State Government has been issuing Circulars from time to time specifying the criteria for preparation of merit. In the Circular for the relevant year, there has been a specific condition that improved marks obtained after acquiring higher qualifications in the secondary school examination shall not be considered for preparation of the merit. Prima facie, there seems to be a rational behind providing such condition because after having obtained degree of graduation or post graduation a candidate has definite advantage in appearing again in the secondary school examination as compared to those candidates appearing in the secondary school examination for the first time. Keeping in view the fact that the appointment has to be made on the post lowest in the cadre, there will certainly be a competition among unequals. ;