Ratan Lal vs State of Rajasthan and Others

Alok Sharma, J.

This petition has been filed with the prayer that the certification of the open school Secondary Examination written and passed by the petitioner, a Class-IV employee with the Public Health Engineering Department (PHED), be directed to be entered in the service record of the petitioner with all consequential benefits.

The petitioner sought permission to pursue further studies. Thereupon the Chief Engineer (Rural) permitted the petitioner to write the Secondary School Examination from open school in the academic year 2005-2006 vide order dated 28-3-2006 on certain terms and conditions. Pursuant to the permission, the petitioner wrote the Secondary School Examination in 2005-2006 but could pass only 2 of the 5 subjects. The petitioner thereafter, as permitted under the open school examination scheme wrote the examination in the remainder 3 of 5 subjects in the year 20062007 and passed it.

It has been submitted that the scheme of State Open School Examination is not similar to that of regular secondary examination of the Board, and due papers can be passed in subsequent years, as the scheme provides that all papers in an examination for which a student has been registered can be passed within five years in a maximum 9 attempts.

It has been submitted that after passing the 3 remainder papers of the Secondary Open School Examination in the academic year 2006-2007, the petitioner forwarded his consolidated mark-sheet to the PHED-his department for taking it on the record of his service book. The said mark-sheet however was not taken on record for the reason that the petitioner had passed 3 of the 5 subjects in the year 2006-2007 while the permission granted to the petitioner was only for the academic session 2005-2006. Hence this petition.

Mr. Achintya Kaushik, counsel for the petitioner has submitted that having been granted permission for writing the Secondary Open School Examination in the year 2005-2006, the petitioner was entitled to all benefits of the scheme for writing the examination. This included passing all the papers in more than one attempt within a period of five years. The permission granted by the department under order dated 28-3-2006, albeit referred to permission for the academic year 2005-2006, would also relate to been submitted that the petitioner had however by way of abundant caution also sought permission under an application to the Chief Engineer to write the examination in the remainder 3 of 5 papers in the Secondary Examination in the year 2006-2007. No response emanated thereon, but permission sought was also not denied. Counsel submitted that the petitioner having passed the remainder 3 of 5 papers in the year 2006-2007, his result would relate to registration in the Secondary Open School Examination, 2005-2006, for which permission had been granted by the department. It has been submitted that at the time when permission was granted for writing the secondary open school examination, in 2005-2006, the petitioner was less than 45 years of age. And therefore in terms of department''s circular dated 16-5-2001, the petitioner then being less than 45 years of age ought to be treated eligible for having the fact of his passing of secondary open school examination recorded in his service book and entitled for all consequential benefits. Alternatively it has been submitted that the condition of maximum age of 45 years, for acquiring any additional education by an employee is wholly arbitrary, as it has no nexus with the object sought to be achieved in allowing in service employees to acquire higher academic qualification and should be so declared ultra-vires of the Constitution for reason of its arbitrariness, by this court.

Mr. Saurabh Saraswat, counsel for respondents submits that the petitioner, a class-IV employee, could not have written remainder 3 papers of the examination in issue in 2006-2007 without a fresh written permission by the department. He submits that the petitioner was allowed to write the examination in issue only in the year 2005-2006, and not thereafter. If at all the petitioner required any benefit of passing the secondary school examination he should have passed the same in the year 2005-2006 itself, for which sanction was accorded and when he was less than 45 years of age. The petitioner in 2006-2007 was more than 45 years of age and not entitled to have his higher academic qualification entered in his service book or take any benefit thereof in terms of the Government''s circular dated 16-5-2001.

Heard. Considered.

Better academic achievement cannot be disincentivised by a literal to the exclusion of purposive reading of the Government''s circular dated 16-5-2001, which provides for permission to an employee to write examination for higher educational qualification. It cannot be gain said that a higher academic qualification will ensure better productivity of an employee, benefit the government and is in public interest. Aside of aforesaid the circular dated 16-5-2001 does not partake a character of law and cannot be construed contrary to Article 14 of the Constitution of India, which mandates that all action of the state government should be reasonable and non discriminatory. To save the circular dated 16-5-2001 from unconstitutionality in limiting 45 years of age as the maximum age for acquisition of higher academic qualification for better prospects in service and resultantly being devoid of any nexus with the object to be achieved by the cut off age, the circular has to be read down and the condition of maximum 45 years of age construed as directory. Further the petitioner having been allowed to write the Secondary School open/Examination in the year 2005-2006, in terms of scheme of the Secondary Open School Examination allowing a candidate to appear in more than one attempts for clearing the examination and the petitioner having passed 2 of 5 paper in the year 2005-2006 and remainder 3 papers in second attempt in the year 2006-2007, he should be entitled to have his secondary examination educational qualification recorded in his service book. It is an admitted fact that at the time of permission for writing the examination in the year 2005-2006 the petitioner was less than 45 years of age. In the context of my view that better educational qualification should be encouraged and incentiviesed at all stages to increase the employee''s productivity, his betterment and in public interest, and that passing of 3 due papers by the petitioner in the year 2006-2007 should relate to the petitioners registration of 2005-2006 for writing the Secondary open School Examination when he was less than 45 years of age, the Secondary open School Examination certificate of the petitioner should be taken on his service book.

In the circumstances, I would allow the writ petition. The petitioner''s certificate of passing the Secondary School Open Examination be taken on record in his service book with all consequential benefits.