JUDGMENT
Balia, J.
1. Heard learned counsel for the parties.
This appeal is directed against the judgment of the learned Single Judge dated 12.4.99 dismissing the writ petition filed by the petitioner.
2. The petitioner was an aspirant of being appointing as a teacher grade III in pursuance of advertisement dated 15.6.98 issued by Zila Parishad, Sri Ganganagar. However, the petitioner did not find place in merit and his candidature was rejected and he was not given appointment.
3. The sole contention of the petitioner is that while evaluating him merit as per Rule 266 marks obtained by him at Secondary Examination which he has passed in 1997 after completing his Post Graduate in 1990 and B.Ed. in 1993 by way of improving his percentage of marks over original percentage of marks obtained by him in Secondary Examination in the year 1983 ought to have been taken in consideration. The learned counsel contended that there is nothing in the Rules which suggests that marks obtained in the first examination to which he was successful in the qualifying examination only be taken into consideration and, therefore, the consideration of the petitioner by excluding the marks obtained by him at Secondary Examinations held in 1997 was denial of equal opportunity in the matter of employment in violation of Article 16.
4. He has also placed reliance on circular issued by the Govt. in its Panchayat Deptt. on 2.7.95 under Rule 17 of the Rajasthan Panchayat Samiti and Zila Parishad Service Rules 1959 which inter alia required that if a candidate has appeared in the subsequent examination for improving the marks in earlier examination in the qualifying examination, then his candidature may be considered on the marks obtained at the subsequent examination.
5. In this connection he also contended that the order of the State Govt. issued on 10.6.98 stating exactly contrary to what has been stated in the earlier circulars could not control the recruitments in question as it will amount to amendment of the rules by executive, order. As there is no prohibition against consideration of better marks obtair ed at the subsequent examination in the rules, the same cannot be excluded by executive order. In this connection the learned counsel has relied on Division Bench judgment of this court namely The State of Raj. and Ors. v. Ms. Chanani Vishnoi and Anr., 1996 W.L.R. 341, and Surendra Kumar and Ors. v. State of Raj. and Anr., R.L.R. 2001 (3) 258, RLW 2002(2) Raj. 1013.
6. Learned counsel for the respondents has on the other side urged that the learned Single Judge was right in dismissing the writ petition filed by the petitioner because the circular relied upon by the learned counsel for the appellant before the learned Single Judge had been issued under the Rajasthan Panchayat Samiti and Zila Praishad Service Rules, 1959 which were framed under the Panchayat Samiti & Zila Parishad Act of 1959. With the commencement of Rajasthan Panchayati Raj Act 1994 under new constitutional Scheme, the Rajasthan Panchayat Samiti and Zila Parishad Act alongwith Rajasthan Panchayat Act, 1953 and rules framed thereunder stood repealed. Therefore, the circulars issued under the repealed rule cannot survive thereafter.
7. Moreover, it was also urged by the learned counsel for the respondents, that with the commencement of the Rajasthan Panchayati Raj Rules 1996, which laid down the crietarion procedure and method of selection for appointment to different posts under the Panchayati Raj, institutions vide notification dated 30.12.96. Governing the selection and recruitment to any post under the Panchayati Raj Institution was occupied field of the Act of 1994 and Rules of 1996 framed thereunder. The executive order issued in exercise of power conferred under the repealed rules cannot survive for the benefit of the petitioner thereafter. He also pointed out that Division Bench judgments relied upon by the learned counsel for the appellant do not help the petitioner in respect of the controversy raised in this case which depends purely upon the consideration of rules laying down, eligibility crietarion and evaluation of merit.
8. The circular issued on 16.6.98 is merely explanatory to the Rules of 1996 and does not restrict or expand the provisions of the Rules in any manner. The view expressed in the circular only reveals the correct position under the rules. He also pointed out, that the decisions relied upon by the learned counsel for the appellant are otherwise distinguishable and have been given in context entirely different from the context in which the controversy has been raised in the present case. He has prayed for the dismissal of the appeal as he has prayed for the writ petition before the learned Single Judge.
9. There is no dispute about, as has been stated by the learned counsel for the appellant, academic career graph of the petitioner. The petitioner appellant has passed his secondary examination in 1983 with supplementory and in 1984, next Higher examination namely Hr. Secondary Examination with IIIrd division acquiring 36.57 per-cent marks, in 1988 he acquired graduation degree with 47.1 percent marks in the pass category and in the year 1990 the petitioner obtained M.A. degree in Economics with 48 per cent marks. Thereafter in 1991 he was trained in education by acquiring B.Ed. degree. For acquiring all these higher qualifications, the basic examination from which he proceeded further was Secondary Examination 1983. In 1997 the petitioner appeared again at the secondary examination and reached to the foundation once again namely Secondary Examination with the Board of Secondary Education for Rajasthan. This time he acquired 56 per-cent marks.
10. In aforesaid facts and circumstances the sole contention of the petitioner is that in evaluating his merit under Rules his improved marks at Secondary Examination 1997 that is 56 per-cent marks only ought to be considered and not of the original examination, 1983, which he passed with supplementary.
11. Under the rules of 1996 the recruitment to Primary School Teacher is hundred percent by direct recruitment. The rule is prescribed the eligibility crieterion as under :
Acadamic qualification : A recruit must possess minimum qualification as under :-
1………………..
2. ……………….
3. Primary School : Senior Secondary Teacher (100% direct) with B.S.T.C. course.
Note : Recruits who passed out prior to 1990 shall be eligible even if they have passed Secondary or Higher Secondary Examination.
4. …….:………..
5………………..
12. Apparently the minimum eligibility criteria for appointment as a primary school teacher is Senior Secondary under 10 plus 2, Secondary or Hr. Secondary that is 10 plus 1 under the old scheme from the Rajasthan Board or equivalent.
13. In the context of evaluation of marks with reference to two or more examinations, the minimum that is required is that the person must have passed the lower examination in the first instance before passing the higher examination and thus the marks obtained in the lower examination before passing the higher examination must only come into consideration unless otherwise provided for, whether entire academic record or acadamic record only up to a particular stage is taken into consideration.
14. Apparently, it is clear that where minimum qualification is higher Secondary the candidate ought to have passed his secondary examination, which can come into consideration of evaluating his merit, prior to his passing the examination of higher secondary.
15. 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 anomaly 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 acadamic 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 circumstance 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 acadamic attainment in the examination. This method tantamounts to a fraud on the provisions of evaluating merit by 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.
16. We therefore, on the plain reading of the rule, in the absence of any relaxation or executive instructions interpretating the rule, reach this conclusion and reject the petitioner’s contention on first principle.
17. We may now notice the Division Bench decisions of this court referred to above by the learned counsel for the appellant.
18. First is the decision in Chanani’s case (supra). The question raised therein was entirely different and has no relevance on the controversy raised before us. It related to the different examination, different set of rules and on the interpretation of rules governing the permission granted by the Board of Secondary education to any student for improving his marks or class in the same examination. Rule 20 of the Rules of Board interalia provided that at acadamic/entrance/Varishth Upadhayay or any other higher examination, one who wants to improve in the subjects at which he has earlier appeared or wants to improve his class as a whole in that examination he can be permitted to appear as a regular or as a private candidate in the examination. It further clarified that where a candidate appears in the same examination by changing subjects he may be permitted to take that examination but the marks obtationed at such examination are not considered by way of improvement.
19. The Division Bench in fact held in the case that the petitioner was not entitled to the benefit of the improved marks because he has appeared at the lower examination with changed subjects, and the judgment rendered in favour of candidate by learned Single Judge was set aside.
20. This judgment in our opinion goes against the petitioner rather than favouring him. The petitioner, had appeared in 1997 Secondary examination with lessor subjects under a different scheme from 1983 examination. In 1983 he appeared in four compulsory papers viz Hindi (100 marks), English (100 marks), Gen. Science (50 marks) and Elementary Maths (50 marks) with three optionals viz Economics, Civics and History (150 marks each). Total marks qut of which marks were obtained were 750. In addition thereto he had appeared in Sanskrit as third language marks of which were not to be included in total marks obtained to affect merit. As against this in 1997 the petitioner appeared only at three compulsory subjects viz Hindi, English, General Science and two optionals viz Social Science and Mathematics with 100 marks each and Sanskrit as third language with 50 marks. The marks obtained in third language have been included in total marks for evaluation. Maximum total marks were 550. Thus even as per Rule 20 of the Rules of Board the subsequent Secondary examination taken by the petitioner appellant which was with changed subjects cannot be taken to be improvement.
21. The second decision rendered in Surendra Kumar’s case (supra) was obviously given in the like circumstance as has been obtained in this case for appointment under the Rajasthan Zila Praishad and Panchayat Service Rules 1959 Two circular have been issued by the State Govt. on 5.5.92 and 24.7.95 stating that in computing the merit of the candidates appeared for selection if he produces the marksheet for the purpose of improvement of division before the last date of application or before the process of merit stands, it shall be considered while determining the merit. It was rendered in the light of aforesaid executive instructions which were than in operation for recruitment in pursuance of the advertisement which was issued prior to the commencement of rules of 1996. The court found that the subsequent issue of directions by the State Govt. cannot restrospectively affect the rights emanating from earlier executive instruction as executive orders cannot operate restrospectively. The learned counsel laid great stress on the following observations made in the Division Bench judgment of this court :
We have heard learned counsel and perused the record. We do not find any jurisdiction in not taking into consideration the revised marks obtained 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 affect 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 why 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 jurisdiction in the government’s decision discontinuing the earlier practice of counting the marks obtained at the subsequent examination taken for improvement of marks.
22. Aforesaid reasoning cannot be read out of context in which they have been made in the case before the court where recruitment was under old Rules. The fact that in 1994 New Panchayati Raj Act was brought into force and the Act of 1959 was no more in force, Rules of 1996 had since replaced Rules of 1959. Moreover, we have noticed above the true scope of permissible improvement in any examination of Board under its Rule 20 as was laid in Chanani’s case. The Bench deciding Surendra Kumar’s Case too categorically stated to give effect to mark sheet for the purpose of improvement. A person taking a subsequent examination under different scheme with no parity of subjects between the two examinations in which a candidate appears, has been held to be not falling within the domain of improvement. Petitioner appellant demonstrably does not fall in the category of obtaining Secondary examination 1997 by way of improvement.
23. Be that as it may we need not deal with further detail of the above case since it is apparent that the judgment was delivered in the context of the Act of 1959 and rule framed thereunder and the circular issued thereunder. The circulars to which reliance has been made by the Division Bench in Surendra’s case dated 5.5.93 and 24.7.95 cannot govern the selection process which is to be conducted in pursuance of advertisement issued on 15.6.98. The observations made by the Division Bench quoted above are with reference to the two circulars to which reference has been made in the judgment which has been held to be than operative.
24. More so on facts also the petitioner is not entitled to be considered as having improved his division in secondary in terms of Rules of Board of Secondary education governing permission to take subsequent examination for improvement.
25. We, therefore, are of the opinion that the annexure R/1 issued by the Govt. on 10.6.98 prior to the issue of advertisement was expression of correct view of the rules. It does not call for any interference. We make it clear that by issuing executive instructions, statutory rules can neither be amended nor their operation can be restricted or expanded unless permissible by law.
26. Accordingly, the appeal fails and is dismissed with no order as to cost.