1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO. 2983/2005 Smt. Rajni Joshi Vs. State of Rajasthan & Ors. Date of Order : 09/02/2007 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. P.R.Mehta for the petitioner. Mr. N.M.Lodha, Addl. Advocate General for the respondents. BY THE COURT:- By the instant writ petition, under Article 226 of the Constitution of India, the petitioner seeks a direction to consider his case for appointment on the post of Teacher Gr.III on the basis of the marks obtained by her in the Secondary Examination of the year 1996 instead of the year 1987. The facts and circumstances giving rise to the instant writ petition are that the respondents advertised and invited application for the post of Teacher Gr.III vide advertisement No. 18/98 dated 13.6.1998 Annex.1. The petitioner passed the Secondary School Examination in the year 1987 and secured 48.50% marks, however, subsequently in the year 1996 in order 2 to improve the marks, the petitioner appeared in the Secondary Examination-1996 and obtained 59.50% marks. The respondents prepared a merit list dated 29.10.2002 vide Annex.4, however, the name of the petitioner did not find place in the merit list. The petitioner made a representation for consideration of her case vide Annex.6. However, finding that her case has not been considered by the respondents, the petitioner has filed the instant writ petition. A reply to the writ petition has been filed by the respondents contending that the marks obtained in the first secondary examination are required to be taken into consideration while preparing the merit list and not the marks which the petitioner has obtained in the second attempt after 10 years, relying on the decision of Division Bench of this Court in Kesu Ram Vs. Zila Parishad, Sriganganagar 2003 (3) WLC (Raj) 53. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that in order to improve the marks, the petitioner again appeared in the Secondary School Examination in the year 1996 and secured 59.50% marks and therefore, she is entitled for consideration for the post of Teacher Gr.III advertised vide Annex.1 dated 13.6.1998. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in Purushottam 3 Vs. Chairman, M.S.E.B. And Another (1999) 6 SCC 49 and a Division Bench decision of this Court in Surendra Kumar and Others Vs. The State of Rajastan and another D.B.Civil Special Appeal (W) No.596/97 decided on August 30, 2001 and in Basti Mal Suthar Vs. State of Rajasthan and Ors. 2004 (3) Western Law Cases (Raj.) page 133. Learned Additional Advocate General appearing for the respondents submits that the merit list was prepared only in respect of the candidates who approached the High Court or the Hon'ble Supreme Court in pursuance to the advertisement Annex.1 in compliance of the direction issued by Hon'ble Supreme Court in Kailash Chand Sharma Vs. State of Rajasthan and Ors. 2002 (6) SCC 562. Learned counsel has relied on the decision of Hon'ble Supreme Court in Kailash Chand Sharma Vs. State of Rajasthan and Ors.(supra), in Kesu Ram Vs. Zila Parishad, Sriganganagar (supra), in Rani Laxmibai Kshetriya Gramin Bank Vs. Chand Behari Kapoor and Ors. AIR 1998 SC 3104 and a Division Bench decision of this Court in Smt. Madhu Soni Vs. State of Rajasthan and Ors. D.B.Civil Special Appeal No. 16/2004 decided on 23.11.2005. In Surendra Kumar and others Vs. The State of Rajasthan and Another (supra), the Division Bench of this Court observed that for various reasons and fortuitous circumstances, a candidate otherwise meritorious, may not score well in the first 4 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 and accordingly held that there is 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. In Basti Mal Suthar Vs. State of Rajasthan and Ors. (supra) while considering the questions whether the B.Ed. degree obtained by the petitioner through correspondence course from Barkatulla University, Bhopal is valid or recognised and whether the petitioner can be given appointment even after expiry of select list, held that in view of the decisions of the Coordinate Benches of this Court, the B.Ed. degree obtained by the petitioner through correspondence course is a valid and recognized B.Ed. degree for appointment on the post of Teacher Gr.III and if due to inaction omission or apathy, the select list expired then the expiry of the select list would not come in the way of the petitioner for giving him appointment as denial of appointment in such eventuality is violative of the fundamental rights enshrined under Articles 14 and 16 of the Constitution of India. In Purushottam Vs. Chairman, M.S.E.B. And Another (supra), Hon'ble Supreme Court held that the right of the 5 appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. In Kesu Ram Vs. Zila Parishad, Sriganganagar 2003 (3) WLC (Raj.) while considering the case of Surendra Kumar and Others Vs. The State of Rajastan and another (supra), the Division Bench of this Court held that the marks obtained in higher secondary passed earlier and the marks obtained in lower examination by improving earlier marks after that would create not only an anamoly but obviously be in violation of Article 14 of the Constitution. This is so because person should have passed requisite lower standard before obtaining higher education through that stepping stone. If a person after obtaining higher academic qualification returns back to his foundation stone and passes the examination with aplomb as an accomplished man, it is no reflection on his merit at lower examination at which he has appeared later in comparison to the other students who are there in ordinary course of circumstances with background of students upto much lower standards. The marks obtained by him with such higher level of education by appearing at a lower examination of threshold does not relate in any manner to his academic attainment in the examination. This method tantamounts to a fraud on the provisions of evaluating merit by 6 improving marks in much lower standard after successively passing next higher examination through that opening by appearing with student who had come from the still lower stepping stones and is at the threshold of appearing at higher education. In Smt. Madhu Soni and 842 Ors. Vs. State of Rajasthan and Ors. 2004 (2) WLC (Raj.) 337, this Court observed that the circular providing bonus marks came to be challenged before this Court and a Larger Bench of this Court in Deepak Kumar Suthar Vs. State of Rajasthan and Ors. 1999(2) RLR 692 (FB), vide judgment dated 21.10.1999, held that no appointment can be made by giving the advantage of bonus marks on the basis of residence of a candidate in the concerned district and rural areas of that district and as such the Circular, to the extent providing bonus marks, was held to be unconstitutional. It was further observed that the matter was carried to the Hon'ble Supreme Court and the Hon'ble Apex Court in Kailash Chand Sharma Vs. State of Rajasthan and Ors. 2002 (6) SCC 562 confined the relief only to the petitioners who moved the High Court and to make appointment made on or after 18.11.1999 in any of the district subject to the claims of the petitioners. Relying on the decision of Hon'ble Supreme Court in Kailash Chand Sharma, this Court held that the petitioners neither filed the writ petitions nor joined the 7 proceedings before the High Court or Hon'ble Apex Court, therefore, they are not entitled for any benefit on the basis of the judgment of the Hon'ble Supreme Court in Kailash Chand Sharma's Case (supra). This Court further held that moreso, as the select list had expired, no relief can be granted to the petitioners at such a belated stage. In Smt. Madhu Soni Vs. State of Rajasthan and Ors. D.B.Civil Special Appeal No. 16/2004 decided on 23.11.2005, the Division Bench of this Court held that as far as appellant's own claim is concerned, it is the admitted position that she did not file any writ petition and the irresistible conclusion therefore, is that in view of the directions of the Supreme Court confining the relief “only to the petitioners who moved the High Court”, the authorities could not have considered her case. The claim of the appellant for her own appointment is otherwise fully covered by the directions of the Supreme Court pursuant to cases of only those who had moved the High Court could be considered. The appellant not having moved the High Court, the Division Bench did not find any distinction between her case and those of others dismissed by the learned Single Judge by the impugned order. In Kailash Chand Sharma Vs. State of Rajasthan and Ors. (supra) Hon'ble Supreme Court held that when no guideline at all is discernable from the impugned circular as to the identification of residence of applicants, specially having regard 8 to the indefinite nature of the concept of residence, the provision giving benefit of bonus marks to the rural residents will foul of Article 14 of the Constitution of India. Their Lordships, having due regard to the rival contentions, adverted and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, considered it just and proper to confine the relief only to the petitioners who moved the High Court and to make appointments made on or after 18.11.1999 in any of the district subject to the claims of the petitioners. The controversy raised before the Apex Court on the factual background was categorised by the following categories of the persons:- (1)Those filed by the original writ petitioners who were aggrieved by the direction in the judgment either confirning their application prospectively or denying relief on the ground that the writ petitioners would not have been selected even if 10 or 15 bonus marks are excluded. The appellant in the first of these appeals- Kailash Chand Sharma belongs to this category. He fails from the district of Karouli and he applied for the job in Barmer district. (2) Those candidates who have not been offered appointment, though selected on the strength of the weightage accorded for residents of the district and rural areas comprised therein. (3)Those selected on the basis of weightage and appointed after 21.10.1999, whose appointments were likely to be cancelled in view of the directions in the impugned judgments. (4) Official respondents in the writ petitions viz. The State of Rajasthan and the Zila Parishads. 9 The Hon'ble Supreme Court, while deciding the controversy in the case of Kailash Chand Sharma (supra) issued the following directions :- “Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners, who moved the High Court and to make appointments made on or after 18.11.1999 in any of the districts subject to the claims of the petitions. Accordingly we direct:- 1. The claim of the writ petitioners should be considered afresh in the light of this judgment vis-a-vis the candidates appointed on or after 18.11.1999 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/ or 5% are excluded, they should be offered appointments. If necessary, by displacing the candidates appointed on or after 18.11.1999. 2. The appointments made upto 17.11.1999 need not be reopened and reconsidered in the light of the law laid down in this judgment. 3. Writ petition No. 542 of 2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time.” In view of the law laid down by the Hon'ble Apex Court in Kailash Chand Sharma's case (supra) it is clear that the Hon'ble Supreme Court has confined the relief only to the petitioners who moved the High Court and to make appointment made on or after 18.11.1999 in any of the districts subject to the 10 claims of the petitioners. The Apex Court directed to consider the claims of the writ petitioners afresh in the light of the judgment in Kailash Chand Sharma's case (supra) vis-a-vis the candidates appointed on or after 19.11.1999 or those in the select list who were yet to be appointed on such consideration. In the instant case, indisputably, the petitioner did not move the High Court within reasonable time. He neither filed writ petition nor joined the proceedings before the High Court or Hon'ble Apex Court. Therefore, the petitioner is not entitled for any relief in view of the judgment of the Hon'ble Supreme Court Kailash Chand Sharma's case (supra). So far as the controversy regarding consideration of the marks obtained in the second attempt, it stands concluded by the decision of Division Bench of this Court in Kesu Ram Vs. Zila Parishad, Sriganganagar (supra) and in view of that decision the marks obtained by the petitioner in the secondary examination in the second attempt have rightly been not considered by the respondents while preparing merit. In view of the aforesaid, I do not find any merit in the writ petition. The writ petition is, therefore, dismissed. There shall be no order as to costs. (H.R.PANWAR),J. rp