1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.6136/2003 (Dilip Kumar Vs. State of Raj. & Ors.) Date of order : 16.04.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. M.R. Singhvi, for the petitioner. Mr. S.P. Sharma, for respondent No.5. Mr. B.L. Bhati, Dy. Govt. Counsel for State. In this writ petition, the petitioner has prayed for providing appointment as per his merit with effect from the date a person having lesser percentage of marks was given appointment with all consequential benefits. Further, it is prayed that the appointment given to the respondent No.5 may be quashed. According to the facts of the case, the petitioner applied for appointment on the post of Teacher Grade III in OBC category in pursuance of 2 advertisement Annexure-1. The case of the petitioner is that his name was included in the merit list prepared by the respondents at Sl. No.142. According to the said list prepared by the respondents, the total percentage of marks has been shown as 73.940%. Similarly, one Chhotu Ram Jangir whose name is appearing at Sl. No.67, who was provided appointment his percentage of marks has been shown as 77.904%. As per the petitioner, in accordance with the judgment rendered by Hon'ble Apex Court in SLP No.4417/02 (Kailash Chandra Sharma Vs. State & Ors.), certain directions were issued by Secretary, Panchayati Raj Department on 10.10.2002, a copy whereof has been placed on record as Annexure-3. The case of the petitioner is that for preparing merit in case of petitioner, he was granted 10 bonus marks whereas in case of Chhotu Ram whose name is appearing at Sl. No.67 in Annexure-2, he was granted 15 bonus marks and after directions issued by Hon'ble Apex Court, a revised merit list was prepared in which the name of Chhotu Ram is appearing at Sl. No.62 and his percentage of marks has been shown as 62.904% and on that basis, he is provided appointment whereas if 10 bonus marks are deducted from the percentage of marks shown in Annexure-2 for including the name of the petitioner as 73.940%, the petitioner's percentage of marks come to 63.940%. Obviously, the said percentage of marks is higher then the marks obtained by Chhotu 3 Ram, who was provided appointment after preparing revised merit list in pursuance of the directions issued by the Government. It is also contended by the learned counsel for the petitioner that cut of marks has been shown by the respondents vide communication dated 25.6.2003 (Annexure-6), sent by Zila Parishad, Nagore to the Secretary, Elementary Education, Secretariat, Jaipur and Director, Elementary Education Bikaner in which the cut of marks for providing appointment to OBC candidates has been shown as 62.904% and the petitioner's percentage of marks comes to 63.940% after deducting 10 bonus marks from the percentage of marks shown in Annexure-2. Therefore, obviously, accordingly to the petitioner, he was higher in merit then Chhotu Ram because Chhotu Ram was having only 62.904% marks whereas the petitioner's marks comes to 63.940%, therefore, directions may be issued to the respondents for providing appointment to the petitioner because the person having less percentage of marks has been provided appointment. Per contra, by way of filing reply, it is contended by respondents that in view of the judgment passed by Hon'ble Division Bench of this Court in DB Civil Special Appeal (Writs) No.694/2003 (Chandra Mohan Gurjar Vs. State of Raj & Ors.) decided on 9.12.2003, the petitioner is not entitled to get any relief in this writ petition because his case is not covered under the directions issued by Hon'ble Apex 4 Court. In this view of the matter, this writ petition is disposed of with a direction to the respondents that the claim of the petitioner may be considered afresh at par with the case of respondent No.5 - Chhotu Ram, who was provided appointment by the respondents on the post of Teacher Grade III and at the time of considering the case of the petitioner afresh, the respondent shall consider the judgment rendered by Hon'ble Apex Court (supra) so also follow the directions issued by Secretary, Panchayati Raj Department dated 10.10.2002 in toto and if upon considering the case of the petitioner afresh, it is found that the petitioners is entitled for appointment then he shall be provided appointment with effect from the date from which the candidate having lesser percentage of marks was provided appointment. The respondents shall decide the matter within a period of three months from the date of receipt of certified copy of this order. (GOPAL KRISHAN VYAS), J. arun