- (1.) THERE can be no two opinions on the issue that even an expert on the subject may fail, if appears in the examination of that subject. In the words of Professor WALTER RALUGH, the 'College final' and the 'Day of Judgment' are two different examinations. A.E. HOUSMAN, the great scholar of Greek and Latin and better known as a poet once failed in the papers on those very languages of the Oxford University. His biographer commented- "The nighingale got no prize at the poultry show." Like A.E. HOUSMAN, there are many students in our country, who have not been as successful in their examinations, as they thought they deserved to be. Out of them many re-appear in the examination in order to improve the marks earlier secured by them. Core issue that needs our answer in the instant matters is as to what course should be adopted in providing employment to a student in such a situation. Whether merit list should be drawn on the basis of marks secured by him in the first examination or merit should be considered in view of improved marks secured in the second examination?
(2.) THE questions that have been referred to us are these: (i) Whether improved marks secured in second attempt in Secondary School Examination can be considered for adjudging merit of the candidate for appointment to the post of Teacher/PTI Gr. III? (ii) Whether Director, Primary & Secondary Education Rajasthan is competent to issue Circulars and Guidelines laying down criteria for drawin the merit list for appointment to the post of Teacher/PTI Gr. III? For convenience facts of writ petition No. 582/1997 (Brijendra Kumar Jaiman vs. State of Rajasthan) are taken into consideration. The petitioner in this writ petition averred that he applied for the post of Physical Training Instructor Gr. III (for short 'PTI') pursuant to the advertisement issued by District Education officer for the year 1996-97. Although the petitioner was placed at Serial N. 2 in the merit list, he was not given appointment despite his merit. As per the letter dated December 28, 1996 issued by the appointing authority, the candidature of the petitioner was not considered because of improved marks obtained by him in the second attempt in Secondary School Examination. On enquiry the petitioner came to know that clause 24of the circular issued for the year 1996-97 by the Director, Primary & Secondary Education Rajasthan Bikaner, ousted the petitioner from consideration. Clause 24 provides that the candidates, who after securing higher qualification, have improved their division in lower qualification, the improved marks secured by them shall not be made basis in drawing merit. In adjudging merit the earlier marks obtained in lower qualification shall only be considered. Clause 24, which was issued in Hindi, reads as under:- ******* Challenge in the writ petition is to aforequoted clause 24 of the circular and letter dated December 28, 1996 with a further prayer to appoint the petitioner on the post of PTI Gr. III on the basis of improved marks. We have pondered over the submissions advanced before us. At this juncture it will be appropriate to analyse Rule 20 of the Board of Secondary Education Rajasthan Rules (for short 'BSER Rules'), which permits a student to re-appear in the examination for the purpose of making improvement in the division or marks secured in the first examination. Rule 20 reads as under:- ******
(3.) CONSIDERING Rule 20 of BSER Rules, Division Bench of this Court in Surendra Kumar vs. State of Rajasthan (2001(3) RLW 258) indicated thus:- (Para 12) "We have heard learned counsel and perused the record. We do not find any justification in not taking into consideration the revised marks obtained by a candidate in a subsequent examination. When under the scheme of examination, it was permissible for a candidate to appear only for improvement of his marks and even at a subsequent examination, there is no logic in not giving benefit of the marks obtained at the subsequent examination, to such a candidate. In fact, when the examination is taken and fresh marks are obtained, they should have the effect of superseding the earlier marks and substituting them. The State Government, as an employer, is only concerned with the merit of a particular candidate at the time of his selection. Whether that merit was obtained in one attempt or more than one attempt, is absolutely irrelevant in absence of any rule permitting discounting of merit on the ground of attempts after which that merit was obtained. In the present case, no rule has been pointed out which requires rejection of marks obtained in an examination passed in more than one attempt. In fact, there is no knowing from the marks-sheets whether the candidates had passed the secondary examination in only one attempt. When the candidate, who has failed in the secondary examination, could appear at the subsequent examination and after passing that examination, get his marks obtained in the second examination counted for the purpose of selection, there is no reason who the candidate who had passed an earlier examination but not being satisfied with the marks obtained in that examination, attempts second time and obtains higher marks, should be deprived of his right to get the improved marks counted for the purpose of merit. To our mind, it is also not relevant as to whether a candidate has obtained higher qualification like graduation, post graduation or Ph.D. Degrees. When such candidates are not being given any weightage for the higher qualifications they cannot be put at a disadvantageous position only because of obtaining higher qualifications. After all, there is nothing sacrocant about the first attempt at the examination. For various reasons and fortuitous circumstances, a candidate, otherwise meritorious, may not score well in the first attempt or might be suffering from any other handicap, which might have undermined his performance. The employer is concerned with the current merit of the candidates to be employed and not their past performance. We therefore, see no justification in the government's decision discontinuing the earlier practice of counting the marks obtained at the subsequent examination taken for improvement of marks." The finding arrived at in Surendra Kumar's case (supra) is founded on the ratio indicated in State of Rajasthan vs. Ms. Chanani Vishnoi (WLR 1996 Raj. 341), wherein Division Bench of this Court held as under:- "This clearly means that the candidates who appeared at the same examination with changed subjects would not be treated as candidates appearing for the purpose of improvement of marks/improvement of grades. The intention of the Rule makers is very clear to distinguish those who appear in the same subjects second time from those who appear second time at the same examination with change of subjects. Thus who appear in the same subjects under sub-rule (1) of Rule 20 are clearly treated by that sub-rule as candidates who appear for the purpose of improvement of marks or improvement of grades. About those who appear under sub-rule (2) of the Rules, in the subsequent examination, the intention is clear not to treat them as candidates appearing for the purpose of improvement of marks or improvement of grades. They are only candidates appearing in additional subjects and not candidates desiring to improve marks or grade in the same subjects." But diametrical opposite view was taken by two Division Benches of this Court in Om Prakash vs. State of Rajasthan (2001(2) RLR 740 = RLW 2001(1) Raj. 1219) and Kesu Ram vs. Zila Parishad Sriganga Nagar (2003(3) RLR 71 = RLW 2003(2) Raj. 1323). ;