S.B. Civil Writ Petition No. 7477 of 2013. Case: Manu Kumari Vs State. Rajasthan High Court
| Case Number | S.B. Civil Writ Petition No. 7477 of 2013 |
| Counsel | For Appellant: Mahendra Singh Yadav, R.D. Meena, Anoop Dhand, Sanjay Gangwar, Kuldeep Aswal, Kawal Singh Loha, Ilyas Khan for Tanveer Ahmed, Akhilesh Pareek, Gajender Sharma, Rajendra Sharma, M.K. Kaushik, D.K. Bhardwaj, Dhanraj Bhaskar, Vijay Pathak, A.R. Meena, T.L. Pandey, Ajay Rajawat and Ram Pratap Saini, Advs. and For Respondents: S.N. ... |
| Judges | M. N. Bhandari, J. |
| Issue | Constitution of India - Articles 254, 309 |
| Citation | 2014 (3) CDR 1572 (Raj) |
| Judgement Date | December 16, 2013 |
| Court | Rajasthan High Court |
Order:
M. N. Bhandari, J.
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The bunch of writ petitions involve common question of law thus are decided by this judgment. For convenience, facts of S.B. Civil Writ Petition No. 7477/2013 are taken.
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The respondents issued an advertisement on 14.12.2011 for the post of Physical Training Instructor (in short "PTI") Gr. II & III. All the petitioners submitted application forms but rendered ineligible on the ground that qualification of "B.P.E." obtained by the petitioners is not recognized by the State Government.
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Learned counsel for petitioners submits that in Para 7 of the advertisement, required qualification has been provided. For the post of PTI Gr. II, required qualification is Bachelor of Physical Education. (B.P.Ed.) recognized by the NCTE and working knowledge of Hindi written in Devnagri Script and knowledge of Rajasthani Culture. For PTI Gr.III, required qualification is Bachelor of Physical Education (B.P.Ed.) or Certificate in Physical Education (C.P.Ed.) or Diploma in Physical Education (D.P.Ed.) recognized by NCTE and working knowledge of Hindi written in Devnagri Script and knowledge of Rajasthani Culture. The petitioners are having three years Degree of Bachelor of Education yet rendered ineligible. Similar controversy came up before this Court in the case of State of Rajasthan & Ors. vs. Hari Ram & 16 Ors., reported in 2001 (1) WLC (Raj.) 124. Therein, candidates holding qualification of Bachelor's degree in Physical Education from Nagpur were held eligible for the post of PTI Gr. II, thereby degree in Bachelor of Education from Nagpur was held to be good. The judgment therein was upheld by Hon'ble Apex Court thus respondents should not be allowed to take a different view than what has already been decided by the Court. It is more so when action of the respondents is even discriminatory in nature. They have treated certain candidates to be eligible, though they are possessing only Diploma in Physical Education. It is only one year's course. In the background aforesaid, the better qualified candidates have been treated to be ineligible.
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For the post of Teacher Gr. III, it is submitted that as per National Council for Teacher Education (Determination of Qualification for Recruitment of Teachers) Regulations 2001 (in short "Regulations, 2001"), required qualification is only of Senior Secondary School Certificate or Intermediate or its equivalent with C.P.Ed., of a duration of not less than two years. The petitioners are in possession of course of three years yet rendered ineligible even for the post of Teacher Gr. III, whereas a candidate having higher qualification than required, should not have been made ineligible.
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Learned Additional Advocate General Shri S.N. Kumawat, on the other hand submitted that there is a difference between "B.P.E" and "B.P.Ed.". The qualification of "B.P.E." can be perused after 10+2 course, whereas "B.P.Ed." is offered after graduation. In view of the above, the petitioners have been held ineligible.
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I have considered the submissions made by the parties and perused the record.
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Before averting to the facts of this case and issue raised, it would be relevant to consider as to who is the competent authority to lay down the qualification for appointment on the post of Teachers Physical Teachers. It is in view of contradiction in the Rajasthan Educational Subordinate Service Rules, 1971 (in short "Rules of 1971") and Regulations of 2001 framed by the NCTE.
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The National Council of Teacher Education Act was enacted in the year 1993 followed by framing of Regulations. As per Act of 1993, Council was given powers to frame regulations so as to provide minimum qualification for the post of Teachers. The NCTE framed Regulations in the year 2001 and therein qualification for the post of Teacher Gr. I, II and III so as qualification for the post of PTI Gr. II and III was provided. It was keeping in mind different levels of school. For the post of PTI, it is at the level of Elementary, Secondary or High School and lastly Senior Secondary. The bifurcation of the post was made similarly for the post of Teachers as well. It was at the different level like Primary, Elementary, Secondary and Senior Secondary. Regulation 2 of the said Regulations provides its applicability for all the recruitment of Teachers in the Central or State Government. Regulation 3 provides for qualification as per Schedule. Regulation 5 provides for power to relax. Regulation 6 talks about interpretation and powers of the NCTE to decide the issue of equivalence. After the Act, 1993 and the Regulations, 2001, all the State Governments are bound to make appointment as per regulations. It is strange that the State of Rajasthan has amended the Rules of 1971 in the year 2011 but did not make it consonance to the regulations of NCTE. It is more so when field is occupied by the NCTE under National Council for Teacher Education Act, 1993. Thus, if State Rules are repugnant to the Act and the rules framed by the Central Government or its Councils, then cannot be allowed to be applied. It is more so when concurrence of President of India is missing. Considering the aforesaid legal position, it would be necessary to refer Regulations 2, 3 and 6 apart from relevant Schedule appended for the post of PTI in the Regulations of 2001, which are quoted for ready reference:
2. Applicability.--These Regulations shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognised by Central or State Government and other authorities for imparting education at elementary (primary and upper primary/middle school), secondary and senior secondary stages.
3. Qualifications for Recruitment.--(i) The qualifications for recruitment of teachers in educational institutions mentioned in Section 2 above shall be as given in the First and Second Schedules to these Regulations. The qualifications prescribed in the First Schedule shall apply for recruitment of teachers for teaching school subjects.
The qualifications prescribed in the Second Schedule shall apply for recruitment of teachers for Physical Education.
(ii) For recruitment of teachers for co-curricular activities such as work experience, art education, etc., existing qualifications or such other qualifications as may be prescribed by the concerned government shall apply.
(iii) For promotion of teachers from one level to the next level of teaching, minimum qualification as given in the Schedules for the concerned level would be required.
6. Interpretation.--If any question arises relating to interpretation of these Regulations or equivalence of various teachers' training programmes, decision of the Council shall be final.
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The aforesaid is the position of the Regulations framed by the NCTE and now it is required to refer the Rules of 1971 framed by the State Government and even amended in the year 2011. As per the Rules of 1971, the qualification provided therein is quoted hereunder for ready reference:
Bachelor of Physical Education (B.P.Ed.) recognized by the National Council for Teacher Education.
Bachelor of Physical Education (B.P.Ed.) recognized by the National Council for Teacher Education and 5 years' experience on the post mentioned in column number 5.
OR
Certificate in Physical Education (C.P.Ed.) or Diploma in Physical Education (D.P.Ed.) recognised by the National Council for Teacher Education and 10 years' experience on the post mentioned in column number 5.
"Bachelor of Physical Education (B.P.Ed.) or Certificate in Physical Education (C.P.Ed.) or Diploma in Physical Education (D.P.Ed.) recognised by the National Council for Teacher Education."
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The Notification dt. 09.12.2011 is also quoted for ready reference:
GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL
(A-Gr. II)No.F.2(6)DOP/A-II/84 Jaipur
dt.: 09.12.2011
NOTIFICATION
In exercise of the powers conferred by the proviso to Article 309 of Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Rajasthan Educational Subordinate Service Rules, 1971, namely:--
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Short title and commencement.--(1) These rules may be called the Rajasthan...
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