BRIJENDRA KUMAR JAIMAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(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?

(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."