SBCWP NO.4136/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4136/1997. Gajendra Singh & Anr. Versus State of Rajasthan & Ors. Date of Order:- February 3, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Lokesh Kumar Sharma for the petitioners. Shri Ganesh Meena, Government Counsel. ***** BY THE COURT:- The controversy involved in the present writ petition is whether petitioners are entitled for counting of their improved marks in the Secondary School Examination 1996 for the purpose of consideration of their case for appointment on the post of Physical Education Teacher Gr.III. Petitioners applied for such appointment in response to advertisement with DEO Boys Dausa. Petitioners when applied for appointment enclosed therewith the improved mark sheets of the examination conducted by the Board of Secondary Examination Rajasthan Bikaner. The SBCWP NO.4136/97. 2 District Education Officer vide communication dated 3/7/1997 declined to take into consideration the improved mark-sheets and required the petitioners to produce the original mark-sheets. Petitioners challenged the aforesaid order in the writ petition. 2) Shri Lokesh Kumar Sharma, learned counsel for petitioners cited the judgment of this Court in Brijendra Kumar Jaiman & Others Vs. State of Rajasthan & Others : WLC (Raj.) 2008(4) 554 and argued that this issue has been collectively decided by the Larger Bench which held that candidate is entitled to count improved marks in the matter of appointment. Learned counsel submitted that while issuing notices, this Court passed the interim-order requiring respondents to not to fill up the post of Physical Education Teacher Gr.III till decision of the writ petition which has remained operative till now. 3) Shri Ganesh Meena, learned Government Counsel has opposed the writ petition but was not in a position to distinguish that judgment of Larger Bench of this court in Brijendra Kumar Jaiman supra. However, learned counsel for respondents has submitted that against the 55 SBCWP NO.4136/97. 3 advertised vacancies, 45 vacancies have already been filled up therefore, at this stage, writ petition may not be entertained. 4) Shri Lokesh Kumar Sharma, Learned counsel for petitioners rejoined and submitted that when this court passed the interim-order way back on 26/9/2002, this fact was not pointed out by the respondents that almost all the posts have been filled up nor they did apply for vacation of interim-order on this ground. 5) Contention of the respondents that appointments on almost all the advertised vacancies have been made would not be an impediment for the petitioners claiming relief in so far as their own merit is concerned, because that would be determined on the basis of the improved marks secured by them and if on consideration of these marks, if any candidate is found lesser merit than the petitioners, petitioners' rights cannot be defeated just because this matter remained pending for hearing for last 13 months. This objection therefore is over-ruled. 6) In the result, writ petition is allowed. The impugned-order dated 3/7/1997 (Annexure-11) is quashed and set-aside. Respondents are SBCWP NO.4136/97. 4 directed to consider the case of the petitioners for appointment if eventually they found to be qualified for appointment on merit and grant them appointment on the post of Physical Education Teacher Gr.III. Petitioners shall however be entitled only for notional benefits for the intervening period including the benefit of seniority, increments, revision of pay etc. 7) Compliance of the judgment shall be made within a period of three months from the date copy of this judgment is produced before the respondents. (MOHAMMAD RAFIQ), J. anil