Mohammad Rafiq, J.:— These matters have had a chequered history, in that the writ petitions giving rise to these appeals have been decided not once but thrice and this is third round of appeals before the Division Bench. On first and second occasion, the writ petitions were allowed by the Single Bench and special appeals filed against successive judgments having been allowed, matters were remanded to the Single Bench. This time again, the writ petitions have been allowed by the Single Bench vide impugned judgment dated 04.07.2012 Aggrieved thereby, these special appeals have been preferred by the present appellants.

2. An advertisement was issued by the Rajasthan Public Service Commission (for short, ‘the RPSC’) on 03.09.2008 for recruitment to 62 posts of Physical Training Instructor Gr.II and 405 posts of Physical Training Instructor Gr.III (for short, the PTI Gr.II or Gr.III). Candidates applying for PTI Gr.II were required to indicate Post Code No. 35 in their application form, whereas candidates applying for PTI Gr.III were to indicate Post Code No. 36. The candidates, who, on the basis of their qualification, were eligible for both the posts, were required to apply for both the posts separately. Subsequently, however, a press note was issued by the RPSC on 22.09.2009 for information of all concerned that applicants, who have submitted OMR application forms pursuant to aforesaid advertisement for participating in the competitive examination to be held for PTI Gr.II and PTI Gr.III, should indicate the post Code No. 35 and Code No. 36, respectively. In the event of any error in specifying the post Code, the result of such candidate shall be cancelled.

3. Combined Competitive Examination for both the posts was held on 04.10.2009 The RPSC issued a letter on 04.12.2009 calling upon the candidates to submit their testimonials/documents upto 04.01.2010 Soon thereafter a news item was published in the daily newspaper on 18.12.2009 that the State Government has directed the RPSC to also treat such candidates eligible for appointment on the post of PTI Gr.III, who possess the Diploma in Physical Education (for short, ‘the D.P.Ed’) and Degree of Bachelor in Physical Education (for short, ‘the B.P.Ed’) on the analogy that these are higher qualifications than the Certificate in Physical Education (for short, ‘the C.P.Ed’). In this connection, the State Government sent a letter to the Secretary of the RPSC on 06.01.2010 Result of the examination was declared on 29.10.2010 The RPSC in doing so declared all such applicants successful for appointment to the post of PTI Gr.III, who held the qualification of Bachelor of Physical Education (B.P.Ed), even though they applied for appointment to the post of PTI Gr.II only and did not submit any separate OMR application form for appointment to the post of PTI Gr.III

4. Aggrieved thereby, number of writ petitions were filed before this court, mostly by those candidates who, on the strength of their qualification of C.P.Ed, applied for appointment on the post of PTI Gr.III, indicating post Code No. 36. First of all, the writ petitions were allowed by the Single Bench of this court vide judgment dated 10.05.2011, leading judgment being delivered in S.B Civil Writ Petition No. 15289/2010 - Bhag Chand Verma v. RPSC, directing exclusion of such of the candidates from consideration, who did not submit their OMR application forms separately pursuant to advertisement dated 03.09.2008, either for PTI Gr.II or PTI Gr.III and have yet been selected for such posts, and quashing selection of eight candidates, who applied only for PTI Gr.III but were selected for the post of PTI Gr.II and of sixty candidates who applied only for the post of PTI Gr.II but were selected for the post of PTI Gr.III The RPSC was directed to declare result afresh taking into consideration the candidates who applied for the respective posts separately subject to their eligibility in the order of merit and recommend their names to the State Government for taking necessary steps for their appointment. The question, whether or not the candidates possessing the qualification of B.P.Ed making them eligible for appointment on the post of PTI Gr.II, can also be considered eligible for appointment on the post of PTI Gr.III, was left to be examined in appropriate case in future. That judgment dated 10.05.2011 was challenged before the Division Bench in D.B Civil Special Appeal (Writ) No. 836/2011. The Division Bench vide its judgment dated 17.10.2011 set aside the aforesaid judgment and remanded the matter to Single Bench requiring the parties to furnish “additional pleadings with respect to whether B.P.Ed Course can be treated as equivalent to C.P.Ed Course and whether skill acquired by B.P.Ed Course is similar to one acquired by C.P.Ed Course and the candidates possessing B.P.Ed qualification can be permitted to claim their selection against the post of Physical Training Instructor Grade III, particularly for primary teaching. Effect of qualification prescribed under NCTE Regulations 2001 is also required to be considered.”

5. The writ petitions were again allowed by the Single Bench of this Court vide judgment dated 01.02.2012, holding that the order of the State Government dated 06.01.2010 directing the RPSC to consider the candidates, who only applied for appointment against the post of PTI Gr.II, also eligible for appointment on the post of PTI Gr.III, is not sustainable. The Single Bench held that there was no material before the court to hold that the qualification of B.P.Ed is higher than the qualification of C.P.Ed because admission to B.P.Ed Course is made after graduation whereas admission to C.P.Ed course is made after Senior Secondary/Intermediate. Learned Single Judge in taking that view also drew support from Division Bench judgment of this court in Kailash Chandra Harijan v. State of Rajasthan, RLR 2006 (1) 665. Relying on the National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in School) Regulations, 2001 (for short, ‘the Regulations of 2001’), the Single Bench held that the Regulations of 2001 do not treat the candidates possessing the qualification of B.P.Ed, eligible for appointment on the post of PTI Gr.III, thus indicating that the NCTE has not treated these two qualifications equivalent. The writ petitions were therefore allowed directing the respondents to issue fresh select list for the post of PTI Gr.III While concluding, however, the Single Bench also observed that after enforcement of the Regulations of 2001, it was mandatory requirement to accordingly modify/amend the relevant recruitment rules. A direction to that effect was already given by the Division Bench in Kailash Chandra Harijan, supra. The State Government was therefore directed now to modify the recruitment Rules so as to bring them in conformity with the Regulations of 2001.

6. This time when the judgment of the Single Bench was challenged in appeal, the Division Bench, on the consent of the parties, while setting aside the judgment, again remitted the matters to the Single Bench by its judgment dated 30.03.2012, on the premise that amendment made in the Rajasthan Education Subordinate Service Rules, 1971 (for short, ‘the Rules of 1971’), vide Notification dated 09.12.2011, was not brought to notice of the Single Bench.

7. The Government had, by issuance of Notification dated 09.12.2011 amended Schedule-I appended to the Rules of 1971 in the following terms:—

“Amendment of Schedule I.- In Schedule I appended to the Rajasthan Educational Subordinate Service Rules, 1971, under the heading Section-B Physical Training Instructors”,

(a) the existing entry in column number 4 against serial number 2 shall be submitted by the following, namely:—

“Bachelor of Physical Education (B.P.Ed) recognised by the National Council for Teacher Education.”

(b) the existing entry in column number 6 against serial number 2 shall be substituted by the following, namely:—

“Bachelor of Physical Education (B.P.Ed) recognised by the National Council for Teacher Education and 5 years' experience on the post mentioned in column number 5.

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.

(c) the existing entry in column number 4 against serial number 3 shall be substituted by the following, namely:—

“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 the National Council for Teacher Education.”

8. The Single Bench, vide judgment dated 04.07.2012, has now for third time again allowed the writ petitions on the same premise on which the writ petitions were allowed by earlier judgment dated 01.02.2012, and directed that the matters shall be governed by earlier judgment dated 01.02.2012, apart from the present judgment. As to the effect of the amendment brought about in the Rules of 1971 vide Notification dated 09.12.2011, the Single Bench, relying on number of Supreme Court judgments, held that since such amendment has not been given retrospective effect, it cannot be applied to the recruitment process, which was started in the year 2008.

9. It is against the backdrop of the facts afore-noted that present appeals have been filed by candidates, who hold the qualification of D.P.Ed and B.P.Ed, aggrieved by the impugned judgment. These matters have been thus laid before the Division Bench for third time.

10. We have heard Shri Rajendra Soni, Kuldeep Aswal, Bhupender Pareek for appellants, Shri S.N Kumawat, Additional Advocate General for Rajasthan Public Service Commission, Shri Sanjeev Prakash Sharma, Senior Advocate for the respondents and Shri Shantanu Sharma for the respondent NCTE.

11. Shri Rajendra Soni, learned counsel for appellants has argued that eligibility for appointment to the post of PTI Gr.III could not be restricted to only those possessing the Certificate in Physical Education. The candidates, who have applied in the present selection process, possesses such certificate of the duration of less than one year, whereas, as per the Second Schedule appended to the Regulations of 2001, the certificate should be of the duration of not less than two years or its equivalent. The certificate course in physical education was closed/discontinued in the State of Rajasthan, vide order of the State Government dated 05.04.2000 and the same situation continued till the Notification dated 09.12.2011 was issued by the Statement Government amending the Rules of 1971. The State Government was fully justified in asking the RPSC by its letter dated 06.01.2010 to treat the candidates possessing the qualification of B.P.Ed and D.P.Ed eligible for appointment to the post of PTI Gr.III The appellants were therefore rightly selected for appointment on the post of PTI Gr.III, in the result declared by the RPSC on 30.05.2011 It is argued that Three Years Degree Course in Physical Education has been acquired by the appellants after undertaking advanced study on a wider range of subjects included in the syllabus, only a fraction of which is taught in the study course of Certificate in Physical Education. The Division Bench judgment of this court in Kailash Chandra Harijan, supra, has wrongly been applied to the facts of the present case because therein the candidates possessing BSTC qualification were held qualified to teach the students of primary level from Class I to Class V because of the specific nature of the training they underwent, whereas the B.Ed qualified persons were held eligible to teach only students of Class VI and above. Such is not the position here. It was contended that the Government is competent to confer eligibility upon those, who possess higher qualification. The learned counsel for the appellants argued that the Single Bench has failed to appreciate that C.P.Ed course was closed down in the State of Rajasthan as far back was in 2000 and only very few candidates possess Certificate in Physical Education. The Regulations of 2001 provides for appointment of PTI at the elementary level of the candidates having C.P.Ed of duration of not less than two years. The Division Bench of this court in Kailash Chandra Harijan, supra, in its Para 26, required the State Government to modify the existing recruitment Rules to bring them in conformity with the NCTE Regulations within a period of three years and held that existing recruitment Rules would continue to hold field for three years from the date of coming into force of the Regulations of 2001. When the learned Single Judge in the impugned judgment has criticized inaction on the part of the State Government in not making the appropriate amendment and required it to now amend the Rules, no fault can be found with the action of the State Government if by executive instructions such clarification has been made by the State Government in the ongoing process of selection because in any case by virtue of the direction contained in Kailash Chandra Harijan, supra, the Rules of 1971 would cease to apply after expiry of three years. And subsequently, the Rules of 1971 have also been amended on the same lines.

12. Shri Rajendra Soni, learned counsel for the appellant, has relied on the judgment of the Supreme Court in Dr. B.L Asawa v. State of Rajasthan - (1982) 2 SCC 55 : AIR 1982 SC 933 and argued that the Degree by a recognized University cannot be held to be unrecognized by any State Government. It was held therein that Public Service Commission cannot treat a Degree not recognized if the same has been granted by the University and which has been recognized by the Indian Medical Council by its inclusion in the Schedule of Indian Medical Council Act. The learned counsel also relied on the judgment of the Supreme Court in Dhananjay Malik v. State of Uttaranchal - (2008) 4 SCC 171 : AIR 2008 SC 1913, and argued that in that case it was held that the B.P.E degree holders should be treated at par with those, who hold B.A/B.Sc/B.Com degree plus a diploma in physical education and would not be required to possess an additional B.A/B.Sc/B.Com degree for purposes of employment as Directors of Physical Education or on other similar posts. Learned counsel has also relied on the Single Bench judgment of this court in Ashok Kumar Sharma v. State of Rajasthan - 1999 (2) RLR 131 and Division Bench judgment of this court in State of Rajasthan v. Hariram - 2000 (3) RLR 323, to the same effect.

13. Shri Rajendra Soni, learned counsel for the appellant, has argued that learned Single Judge was not correct in holding that the clarification made by the State Government to the RPSC to treat the appellants eligible, amounted to changing the rules of the game in the midst of selection process. It was argued that since the RPSC is regarded as recruiting agency of the State Government, it has to hold selection as per the criteria laid down by the State Government. It was for this reason that the RPSC wrote to the State Government seeking clarification upon the eligibility aspect. There was no bar for issuance appropriate instructions to the RPSC by letter dated 06.01.2010 because by that time the select list had not been drawn. Learned counsel for the appellant, in support of this argument, has relied on the judgment of the Supreme Court in Barot Vijaykumar Balkrishna v. Modh Vinay Kumar Dashrathlal - JT 2011 (7) SC 266. It is argued that the Supreme Court in that case upheld the action of the Public Service Commission in fixing minimum qualifying marks of viva-voce, only 2-3 days before the commencement thereof. Fixation of qualifying marks at latter stage was held to be in conformity with the Rules.

14. Per contra, Shri Sanjeev Prakash Sharma, learned Senior Advocate appearing for writ-petitioners-respondents, argued that the advertisement dated 03.09.2008 required that the candidates applying for the post of PTI Gr.III should possess Senior Secondary qualification or equivalent thereto with five subjects, three of them should be Mathematic, English and Hindi with Certificate in Physical Education. Regulation 2 of Second Schedule of the National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in School) Regulations, 2001 although required, apart from Senior Secondary School Certificate or Intermediate or its equivalent, the Certificate in Physical Education of a duration of not less than two years or its equivalent, for appointment of PTI at elementary level, but in the Note given therebelow, it was clarified that some of the States are having certificate in physical education courses of one year duration only, while in some other States, students passing secondary level examination are admitted to certificate in physical education courses. Such States may, by 2005, conduct certificate in physical education programmes of a duration of not less than two years, with admission being open to Senior Secondary/Intermediate pass candidates. In the meantime, candidates, who have undergone certificate courses in physical education of one year duration or were admitted to such programmes after passing secondary level examination, may be given employment in the concerned States only. The State of Rajasthan was one such State where training was imparted for Certificate in Physical Education of the duration of one year. The learned Single Judge has therefore rightly held that the appellants could not be declared eligible and a direction to that effect cannot be issued by the State Government only because they possess higher qualification. It was argued that the advertisement issued by the Rajasthan Public Service Commission indicated different eligibility qualifications for appointment on the post of PTI Gr.II and PTI Gr.III with separate post codes No. 35 and 36, respectively. The State Government could not have in the midst of the process of selection changed the rules of game by laying down new eligibility criteria. Learned Single Judge has rightly held the direction of the State Government issued in that behalf on 06.01.2010, illegal. Learned Single Judge has rightly held that the amendment made to the Rules of 1971 vide Notification dated 09.12.2011 could be applied only prospectively and not retrospectively. Relying on the judgment of the Supreme Court in K. Manjusree v. State of AP - (2008) 3 SCC 512, Hemani Malhotra v. High Court Of Delhi - (2008) 7 SCC 11, Rakhi Ray v. High Court of Delhi - (2010) 2 SCC 637 : AIR 2010 SC 932 and State of Jharkhand v. Ashok Kumar Dangi - AIR 2011 SC 3182, it was argued that even otherwise, the State Government neither by its letter dated 06.01.2010 nor even by amendment Notification dated 09.12.2011, could lay down different qualifications than the one prescribed by the Regulations of 2001. While the Regulations of 2001 provides for the training qualification of Certificate in Physical Education of the duration of not less than two years or its equivalent, the State Government could not by amendment Notification dated 09.12.2011, make those holding qualification of B.P.Ed and D.P.Ed eligible for appointment for the post of PTI Gr.III Learned Single Judge was justified in holding that the said amendment being in conflict with the Regulations of 2001, would be inoperative. The Government, in view of the provisions contained in Regulation 4 of the Regulations of 2001, was required to modify existing recruitment Rules within a period of three years so as to bring them in conformity with the qualifications prescribed in the Second Schedule appended to such Regulations. The amendment, which has been brought about rather brings the recruitment Rules in conflict with the qualification contained in Section 2 of Second Schedule of the Regulations of 2001. Learned Single Judge was perfectly justified in holding that the Regulations of 2001 would have supremacy over these amended Rules and these Rules cannot be applied.

15. Shri S.N Kumawat, learned Additional Advocate General appearing for the State, submitted that the State Government in response to clarification sought by the RPSC by their letter dated 30.12.2009 merely clarified vide letter dated 06.01.2010 to treat even those possessing the qualification of B.P.Ed and D.P.Ed, eligible for appointment on the post of PTI Gr.III, and later on accordingly brought about amendment in the Rules of 1971. Learned Additional Advocate General argued that in the education set up of the State of Rajasthan, respondents are having schools in combination of primary and upper primary level and even secondary level at most of the places, so that any PTI posted in a school can impart physical education to the students of both, primary and upper primary level and also to the students of secondary level. The State Government therefore rightly issued aforesaid clarification to RPSC much before the select list was prepared. No prejudice can be said to have been caused to the petitioners-respondents thereby.

16. Shri S.N Kumawat, learned Additional Advocate General, further argued that in the State of Rajasthan the training-course/certificate-course in Physical Education is not being conducted after the year 2000. The only course available is Bachelor in Physical Education, which, in any case, is higher qualification than the C.P.Ed covering all its subjects. No fault therefore can be found with the action of the State Government. It was argued that the Division Bench of this court in State of Rajasthan v. Hariram, supra, has already taken a view that candidates possessing Degree of B.P.Ed are eligible for appointment to the post of PTI Gr.III It is argued that the Government has issued the aforesaid clarificatory order only because the RPSC raised a query, which is also evident from the order of the Government dated 06.01.2010 that it sent the clarification in response to the query of the RPSC. Learned Additional Advocate General in support of his arguments, relied on the judgment of the Supreme Court in Rakhi Ray v. High Court of Delhi and State of Jharkhand v. Ashok Kumar Dangi, and that of Barot Vijaykumar Balkrishna v. Modh Vinay Kumar Dashrathlal, supra.

17. Shri Santanu Sharma, learned counsel appearing for the NCTE, argued that issuance of advertisement for recruitment and undertaking recruitment for appointment to the post of PTI Gr.II and PTI Gr.III, lies within the domain and sphere of respective States. The NCTE is the central statutory body, which has been established by enactment of the Parliament viz., the NCTE Act, 1993. The object and purpose for establishment of the NCTE is to ensure planned and coordinate development of teacher education system throughout the country. The NCTE lays down the norms and standards in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognized institutions. In exercise of powers conferred under Section 32(2)(d)(i) read with Section 12(d) of the NCTE Act, 1993, the NCTE has made the Regulations of 2001, which are applicable for recruitment of teachers in all formal schools established, run, aided or recognized by the Central or State Government. Second Schedule of the Regulations of 2001 provides for recruitment qualifications of teachers of Physical Education in educational institutions wherein for teaching at elementary level a candidate is required to possess Senior Secondary School Certificate or Intermediate or its equivalent and Certificate in Physical Education of a duration of not less than two years or its equivalent. However, Graduation with Bachelor of Physical Education or its equivalent has been prescribed as the eligibility qualification for teaching at Secondary/High School level. Learned counsel relying on the judgment of the Supreme Court in Yogesh Kumar v. Government of NCT Delhi - (2003) 3 SCC 548, argued that the Supreme Court in Para 5 thereof has clearly held that a teacher training qualification (B.Ed therein) meant to teach higher classes, cannot be construed to mean that such a qualification is comparable to or is higher than the teacher training qualification meant to teach lower level of classes i.e TTE therein. It was therefore argued that both the courses i.e C.P.Ed and B.P.Ed are distinct and separate physical education courses and that the impugned judgment passed by learned Single Judge is just and proper and does not suffer from any infirmity.

18. We have given our anxious consideration to rival submissions, carefully perused the material on record and respectfully studied the cited case law.

19. There are basically seven questions that emerge for consideration in the present set of appeals, which are as:—

(1) Whether the appellants can be treated eligible for appointment on the post of PTI Gr.III on the analogy that the qualification of B.P.Ed/D.P.Ed held by them, being a higher qualification, is equivalent to C.P.Ed?

(2) Whether the impugned instruction dated 06.01.2010 issued by the Government of Rajasthan to the Rajasthan Public Service Commission, requiring it to treat the candidates possessing D.P.Ed and B.P.Ed, eligible for appointment to the post of PTI Gr.III tantamounts to changing rules of the game in the midst of the process of selection?

(3) Whether the amendment in the eligibility criteria for appointment on the post of PTI Gr.III vide Notification dated 09.12.2011 in the Rules of 1971, can be retrospectively applied to the process of selection initiated pursuant to the advertisement dated 03.09.2008?

(4) Whether the amendment in the eligibility criteria for appointment to the post of PTI Gr.III by Notification dated 09.12.2011, being in deviation from and conflict with, the prescription of such qualification in Section 2 of Second Schedule of the Regulations of 2001, is inoperative and unenforceable?

(5) Whether the State Government is competent to prescribe better or higher qualification than that prescribed by NCTE in the Regulations of 2001?

(6) What is the effect of the Division Bench judgment of this Court in Kailash Chandra Harijan, supra, on the clarification/amendment to the Rules of 1971, made by the State Government?

(7) Whether the R.P.S.C on the basis of clarificatory letter of the State Government dated 06.01.2010, can consider the candidature of the applicants passing D.P.Ed and B.P.Ed for appointment on the post of P.T.I Gr.III?

20. We shall now proceed to consider these questions in the order in which they have been enumerated above.

(1) Whether the appellants can be treated eligible for appointment on the post of PTI Gr.III on the analogy that the qualification of B.P.Ed/D.P.Ed held by them, being a higher qualification, is equivalent to C.P.Ed?

21. On the first question posed above, whether the appellants can be treated eligible for appointment to the post of PTI Gr.II and PTI Gr.III merely on the analogy that the qualification of B.P.Ed and D.P.Ed possessed by them is higher qualification, a Larger Bench decision of Punjab and Haryana High Court has been cited before us in which an identical question, whether a candidate possessing higher follows:— qualification than the one prescribed and advertised for appointment to the posts, is eligible for such selection/appointment, was examined. The dispute was about the appointment on the post of Physical Training Instructor, wherefor the notification required Senior Secondary School Certificate or Intermediate or its equivalent and Certificate in Physical Education (C.P.Ed) of a duration of not less than two years or its equivalent. Subsequently, a corrigendum dated 24.10.2006 was issued to even allow candidates having Certificate in Physical Education courses of one year duration after Senior Secondary School Certificate or Intermediate or its equivalent, however, with a rider that this may not be available after 2007 because the Educational Institutions are duty bound as per the NCTE Regulations to commence the two years course from 2005. Since divergent opinions were expressed by two Division Benches of that High Court, the matter was referred to the Larger Bench. The curriculum prescribed for C.P.Ed, B.P.Ed and D.P.Ed by various Universities in the State of Punjab and the State of Haryana, were produced before the court, on a comparative study of which it was concluded by the court that most of the subjects included in the curriculum of C.P.Ed of two years duration, are also part of four years course of B.P.Ed, though with different nomenclatures, distinctively or conjunctively. But, there is no commonality of curriculum of some of the course of various Universities. The advertisement that was subsequently issued, permitted the candidates having C.P.Ed qualification or the qualification equivalent thereto, for appointment. It was therefore held that curriculum of B.P.Ed or other higher courses, if included almost all the components of curriculum of C.P.Ed, that Degree should not be construed to be totally different and distinct qualification. The Larger Bench approved the judgment of the first Division Bench in Multan v. State of Haryana - 2004 (4) SCT 45, of Punjab and Haryana high Court, which found that almost all components of C.P.Ed course of one year or two years duration are taught in B.P.Ed Course in all the Universities in the States of Punjab and Haryana, and it was therefore held that the candidates possessing higher qualification than prescribed, cannot be denied right to consideration for selection. The Larger Bench in holding so, relied on the judgment of the Supreme Court in Mohd. Riazul Usman Gani v. District & Sessions Judge, Nagpur - (2000) 2 SCC 606, wherein it was held that a candidate possessing higher qualification than 8th standard prescribed for the post of Peon, would not be thereby rendered ineligible.

22. In the present case, the Government in its letter dated 06.01.2010 have, in response to letter of the RPSC dated 13.10.2009, clarified on the following three aspects, (1) that since C.P.Ed certificate is awarded after 12 standard examination, the higher qualification of D.P.Ed Should be considered eligible for PTI Gr.II and PTI Gr.III, (2) that apart from D.P.Ed, candidates possessing B.P.Ed, should also be on that analogy treated eligible for appointment on the post of PTI Gr.III; (3) Since the B.P.E has not been approved by NCTE, those possessing this qualification should not be considered eligible for appointment either on the post of PTI Gr.II or PTI Gr.III

23. Appellants in Special Appeal No. 1181/2012, have produced marks-sheets and Degrees as also the syllabus of Three Years B.P.Ed Course of Nagpur University giving details of subjects taught, and training given in First Year, Second Year and Final Year thereof. In some of the writ petitions, out of the originally decided bunch, petitioners have also placed on record the mark-sheets issued by Mohan Lal Sukhadia University, Udaipur, indicating the same subjects covered in the aforesaid syllabus though with variation of years. The appellants have also produced number of mark-sheets issued to the candidates possessing the qualification of C.P.Ed, according to which subjects of:— 1. Education Theories of Psychology & History of Physical Education, 2. Organization of Physical Education & Methods, 3. Human Anatomy/Physical Health Education, Safety Education, Balance Diet and First Aid, and 4. Guidance and Coaching, are taught therein. The syllabus of B.P.Ed Course of Nagpur University, which is a graduation degree of the duration of three years, indicates that therein all subjects of C.P.Ed are apparently covered, as would be evident from the following comparative table:—

NAGPUR UNIVERSITY

DEPARTMENTAL EXAMINATIONS, RAJASTHAN, BIKANER CERTIFICATE COURSE IN PHYSICAL EDUCATIONSyllabus of Examination leading to Degree of Bachelor of Physical EducationFIRST B.P.Ed EXAMINATIONSECOND B.P.Ed EXAMINATIONFINAL B.P.Ed EXAMINATIONPART - IPART I - THEORYPART I - THEORYPART I - THEORY1. Education Theories of Psychology & History of Physical Education 2. Organization of Physical Education & Methods 3. Human Anatomy/Psy. Health Education, Safety Education, Balance Diet and FIRS 4. Guidance and Coaching1. Elements of Physical Education 2. General Science 3. History 4. Anatomy and Physiology 5. Health, Hygiene and Sanitation 6. Languages (Hindi and English)1. Physiology of Exercises and Kinesiology 2. Educational Psychology and Counselling and Guidance 3. Yoga 4. Methods in Physical Education 5. HistoryI. Principles and History of Physical Education II. Organization and Administration of Physical Education III. Recreation IV. History V. Officiating and Coaching VI. Health Education & Remedial & Corrective Physical Education

NAGPUR UNIVERSITY

DEPARTMENTAL EXAMINATIONS, RAJASTHAN, BIKANER CERTIFICATE COURSE IN PHYSICAL EDUCATIONSyllabus of Examination leading to Degree of Bachelor of Physical EducationPART - IIPART - II SKILLPART - II SKILLPART - II SkillsPractical Work(a) Skill in Major Games, Athletics, Gymnastics and other Physical Activities including Yoga (b) Year's Sessional WorkSkill in Games, Athletics, Gymnastics and other Physical Activities including Yogsana Provided that for Second Year Part-II Skills, Internal marks shall be out of 100 and External marks 200Classification of Internal and External Marks for Part-II Examination on Skills (a) Specialization in Games of Aquatics (b) Specialization in Physical Activities (c) Combative and Indigenous Activities (d) Specialization in Athletics (e) Skills in Remedial Massage Provided that for Final Year Part II Skills, internal marks shall be 200 out of 200

PART - IIIPART - III - Practice Teaching:PART - III - Practice Teaching (External Examination)Teaching & Officiating Ability, Officiating Assignment(a) 10 lessons taken throughout the year in Secondary School situation (b) Two lessons to be given at the Annual Examination of which one shall be one Games and Athletics and the other shall be on other Physical Activities(a) Two lessons to be given at the time of the Final Examination, one on Athletics and the other on Major Games (b) Test in Officiating in Two games

24. A similar comparison of the curriculum in the syllabus of the two qualifications of the C.P.Ed of duration of two years vis-a-vis the B.P.Ed of duration of four years and D.P.Ed Of duration of one year, was made by the Punjab & Haryana High Court in Manjit Singh v. State of Punjab - CWP No. 451/2008, decided vide judgment dated 05.02.2010, which is reproduced hereunder:—

Punjab University

C.P.Ed - 2 year (Certificae in Phy. Edu.)B.P.Ed/D.P.Ed - 1 year course (Degree/Diploma in Phy. Edu.)B.P.E Or B.P.Ed - 4 year course (Bachelors in Phy. Edu.)Subjects offered1. History of Phy. Edu. 2. Anatomy & Physiology 3. Education and Sports Psychology 4. Methods of Phy. Edu. and Sports. 5. Officiating & Coaching 6. Principles of Phy. Edu. 7. Kinesiology, Exercise Physiology & Fitness 8. Health Edu. & Safety Edu. 9. Recreation & Yoga1. History of Phy. Edu. 2. Anatomy, Physiology & Health Exercise. 3. Kinesiology 4. Education Physiology 5. Philosophy & Admn. Of recreation 6. Methods of Phy. Edu. 7. Science of Sports Training 8. Foundation of Phy. Edu. 9. Health Edu. & Athletic care 10. Biomechanics 11. Sports Psychology 12. Applied Computer Education 13. Management of Phy. Edu. 14. Officiating in Games and Track & Field.1. History of Phy. Edu. 2. Anatomy & Physiology 3. Education Pshycology 4. Teaching Methodology in Phy. Edu. 5. Officiating & Coaching. 6. Edu. Methodology 7. Kinesiology & Bio-mechanics 8. Health Education 9. Recreation, Play, Camping & leadership training 10. Yoga 11. Communication skills 12. History & Culture of Punjab 13. Foundation of Phy. Edu. 14. Sports Psychology 15. Physiology of Exercise 16. Sports Management 17. Measurement and Evaluation 18. Applied Computer Edu. & Statics in Phy. Edu. 19. Sociology of Sports 20. Organisational Behaviour 21. Sports Journalism 22. Scientific Approach to Sports Training 23. Health, Phy. Fitness & Aerobics 24. Applied Physiotherapy and rehabilitation

Kurukshetra University C.P.Ed

(Certificate in Phy. Edu.) 1 year course-PRE 2005C.P.Ed (Certificate in Phy. Edu.) 2 year course-POST 2005B.P.Ed (Bachelors in Phy. Edu.) 1 year (Post Graduation Course)Subjects offered1. Principles & History of Hy. Edu. 2. Psychology & Sociology of Phy. Edu. & sports 3. Organization Admn. & methods of Physical Edu. 4. Elementary Anatomy, Physilogy, Physical Edu. & Yoga 5. Officiating & Coaching in games and sports1. Principles & History of Phy. Edu. 2. Pshychology of Phy. Edu. 3. Methods of Phy. Edu. 4. Anatomy Physiology & Physiology of Exercise 5. Organization Admn. & supervision of physical Edu. 6. Health Edu., common sports injuries & their first aid 7. Officiating & Coaching 8. Yoga and Health.1. History & Principles of Phy. Edu. 2. Psychology & Sociology of Phy. Edu. & sports. 3. Anatomy & Physiology & Kinesiology 4. Sports Management 5. Techniques of Officiating & Coaching. 6. Health Edu., Yoga and Recreation.

25. The Larger Bench of the Punjab and Haryana High Court, on the basis of aforesaid comparison made the following observations:—

“From the above, it appears that Punjab University has prescribed C.P.Ed two years course, B.P.Ed/D.P.Ed one year course and B.P.E or B.P.Ed-4 years course. From the comparative study of these Courses, it is evident that disciplines like “Recreation”, “Yoga”, “Health Education” and “Sports Psychology” form part of curriculum of C.P.Ed 2 years course. Most of these subjects are also part of B.P.Ed/D.P.Ed one year course or B.P.E or B.P.Ed four years course, though under different nomenclature distinctively or conjunctively. For example, under B.P.Ed/D.P.Ed one year course, instead of “Recreation” it is “Philosophy & Administration of Recreation” as also “Officiating in Games and Track & Field”. Similarly, Health Education and Sports Psychology is part of curriculum of all the courses. Yoga is not specifically mentioned in B.P.Ed/D.P.Ed one year course, though it is also part of the B.P.E/B.P.Ed four years course. It is noticed that “Recreation and Yoga” are common in Nagpur University, Kurukshetra University in B.P.Ed course. It is relevant to notice that C.P.Ed one year course and two years course prescribed by Kurukshetra University do not provide “Recreation” as one of the components of curriculum, though it is prescribed in B.P.Ed one year course which is a post Graduation course in the same University. In Guru Nanak Dev University, B.P.Ed includes “Recreation and Yoga” so and so on. Mr. Khosla has laid much stress on “Recreation” as part of C.P.Ed course. However, it is found that it is not uniformly adopted in the curriculum of C.P.Ed by all the Universities in the States of Punjab and Haryana. At the same time, it appears that these courses are not only part of C.P.Ed curriculum but of higher courses as well may be under different nomenclature or in a different form in some universities. One thing is apparent, there is no commonality of curriculum of same course in various Universities. Since the qualification prescribed under the advertisements/rules can be acquired from any of the recognized Universities/Institutions, curriculum of Universities cannot and should not be the sole basis for determining the eligibility of the candidates. It has to be on the broader spectrum of the curriculum, may be with few additions/omissions not impeding with the over all profile of the course.”

26. In the concluding part, the Larger Bench, while considering the argument based on the judgment of the Supreme Court in Yogesh Kumar, supra, on the question whether the B.Ed is a higher qualification than the T.T.C, held as under:—

“Arguing on the same line Mr. Khosla has strenuously argued that the persons possessing any qualification other than C.P.Ed are not eligible. With a view to appreciate the applicability of the aforesaid judgment, it is deemed appropriate to examine the rule position as prescribed under 1955 rules for the post of P.T.I From the rule noticed in earlier part of this judgment, it appears that educational qualification like metric or 10+2 is not prescribed therein. Though in the advertisement, Senior Secondary Certificate or Intermediate or its equivalent basic qualification is an essential component for the post. Similarly, for professional qualifications, certificate in Physical Education C.P.Ed of a duration of not less than two years or its equivalent is prescribed. However, by virtue of the corrigendum dated 24.10.2006, even a candidate with one year duration course of C.P.Ed is made eligible for recruitment in question. Similarly, in the rule, no equivalent qualification of C.P.Ed is referred to, though in the advertisement C.P.Ed or its equivalent qualification is also recognized as professional qualification. It cannot be ignored that the qualification prescribed under the rule and the advertisement is always the minimum qualification. It is not for us to identify any course which can be termed as equivalent to C.P.Ed course. At the same time, the curriculum of B.P.Ed and other higher courses, if include almost all the components of curriculum of C.P.Ed should not be construed to be a totally different and distinct qualification. In the case of Multan (supra), a Division Bench of this Court has clearly observed that D.P.Ed, B.P.Ed and M.P.Ed are higher qualifications in the same line. From the curriculum of courses like C.P.Ed, B.P.Ed, D.P.Ed, it is found that almost all components of C.P.Ed course of one year or two years are taught in D.P.Ed course in almost all the Universities in the States of Punjab and Haryana. In sum and substance, the controversy revolves around the curriculum of two types of courses, one prescribed in the advertisement i.e C.P.Ed and higher courses acquired by the petitioners. On facts, we are of the considered opinion that the curriculum of B.P.Ed, B.P.E, D.P.Ed includes the curriculum prescribed for C.P.Ed in major universities in the States of Punjab and Haryana. Higher qualifications being in the same subject and line cannot be ignored and candidates possessing higher qualification cannot be denied consideration for selection.”

27. Adverting now to the provisions of relevant recruitment Rules in the case in hand, Entry 3 of Section B of the Schedule appended to the Rules of 1971, while prescribing Senior Secondary/Secondary as the basic eligibility qualification, requires only Certificate of Physical Education, for appointment on the post of PTI at the level elementary education. Regulations of 2001 however prescribes the Certificate of Physical Education of the duration of two years and has also permitted to treat the candidates eligible, who possessed the qualification equivalent thereto. The equivalence cannot therefore be judged only from the perspective of qualification of exactly same duration and having the same syllabus and curriculum. It has to be also kept in view that the writ petitioners, who are resisting the claim of the appellants for appointment on the post of PTI Gr.III, are those, who possess the Certificate of Physical Education of the duration of only one year. Training and education in the subjects that was given/imparted to them, was also given/imparted to the appellants, who hold the Degree of B.P.Ed However, when we compare the subjects taught in the B.P.Ed Of three years duration, the subjects mentioned in its syllabus/carriculum on the basis of which the appellants claime eligibility and those those of C.P.Ed of two yars duration from Punjab University (there being no such course in the State of Rajsthan), referred to in the Larger Bench judgment of the Punjab and Haryana High Court, we find that the subjects are almost same and substantially cover the syllabus/carriculam of the former. Those subjects are - (1) History of Physical Education, (2) Anatomy & Physiology, (3) Education and Sports Psychology, (4) Methods of Physical Eduction and Sports, (5) Officiating & Coaching, (6) Principles of Physical Education, (7) Kinesiology, Exercise Physiology & Fitness, (8) Health Education & Safety Education and (9) Recreation & Yoga. In the syllabus of B.P.Ed of three years duration, reference to which has already been made above, all these subjects are covered with almost the same names. The comparative table that has been extracted above, clearly shows that the first subject “Education Theories of Psychology & History of Physical Education” is taught in much expanded form in the first year as well as second year of the Degree Course of B.P.Ed The subject “Organization of Physical Education & Methods” is also taught in the Degree course of B.P.Ed in much more diversified manner in Second and Final Year of B.P.Ed Similarly, subject of “Human Anatomy” which is taught as subject in C.P.Ed is taught in first year of B.P.Ed as subject known as “Anatomy and Physiology”. The subject “Physical Health Education, Safety Education, Balanced Diet and First Aid” taught in C.P.Ed, is also included in B.P.Ed as subject of “Health Education & Remedial & Corrective Physical Education” in the Final year, and then is the subject “Educational Psychology and Counselling and Guidance”. Subject “Balance Diet and First Aid” in the C.P.Ed Course is also taught in the First Year of B.P.Ed as the subject “Health, Hygiene and Sanitation”. Subject “Guidance and Coaching” in the C.P.Ed is taught as the subject “Counselling and Guidance”, as also the subject of “Officiating and Coaching” in the B.P.Ed course. Subject “Teaching & Officiating Ability, Officiating Assignment” in C.P.Ed is taught in a much comprehensive format as the subject of “Officiating and Coaching” and then “Organization and Administration of Physical Education” and then the “Method in Physical Education”. Even though B.P.Ed is a higher qualification entitling its holder to secure appointment on the higher post of PTI Gr.II, but we are not deciding the question of equivalence herein only because it is higher degree. Analytical comparison of the two clearly brings out that the subjects of-course are the same, but the curriculum of subjects in B.P.Ed is much comprehensive, wider and diversified.

28. We are however not inclined to concur with the view expressed by the Larger Bench of the Punjab and Haryana High Court treating the qualification of B.P.Ed/D.P.Ed courses of one year duration higher than the C.P.E.d of two years duration. Careful reading of the said judgment reveal that in fact the Larger Bench in taking that view, heavily relied on earlier Division Bench judgmnet of the same Court in Multan v. State of Haryana - 2004 (4) SCT 45. The qualification of C.P.Ed of two years duration does not merely consist of theory papers but also practical training is imparted to the students during that period with respect to each of the subjects taught to them. The training consists of games, atheletics and other activities. Nine papers are divided into four semesters spread over a period of two years. The students are imparted extensive training in each of the subjects with particular emphasis on practicle aspects. Apart from that, neither the Larger Bench of Punjab & Haryana High Court in Manjit Singh v. State of Punjab - CWP No. 451/2008, nor Division Bench in Multan v. State of Haryana - 2004 (4) SCT 45, analyzed the effect of National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in School) Regulations, 2001, which has prescribed C.P.Ed of two years duration as eligibility qualification for appointment on the post of PTI at elementary level. While therefore we do not find any reason to hold that any specialized physical training is imparted in C.P.Ed for students of only elementary level, which training is not imparted in B.P.Ed, we are not persuaded to hold that qualification of B.P.Ed/D.P.Ed of one year duration is higher qualification than the qualification of C.P.Ed of two years duration and, therefore, should be considered equivalent.

29. It therefore logically follows that those holding the qualification of B.P.Ed, recognized by NCTE, would not be holding an equivalent qualification. The degree of B.P.Ed, since its syllabus covers all the essential components of the subject of C.P.Ed, cannot be treated a totally different and distinct qualification. Another significant aspect of the matter is that R.P.S.C has also held common written examination for both the posts, thus indicating that merit of all the candidates has been tested applying the same yardstick. Apart from recognizing C.P.Ed as the eligibility qualification for appointment on the post of PTI Gr.III at the elementary level, recognition has also been given to the degree of B.P.Ed for appointment on the post of P.T.I Gr.II at the secondary/High School Level.

30. Adverting now to the qualification of D.P.Ed, it is to be noted that the Government, in its order dated 06.01.2010, has also directed the qualification of D.P.Ed to be treated equivalent to that of C.P.Ed, but in the Regulations of 2001, the N.C.T.E has neither accorded any recognition to the qualification of D.P.Ed nor prescribed it as one of the eligibility qualifications for appointment on the post of P.T.I either at the Elementary or at Secondary/High School level. The analogy on which we are persuaded to hold the qualification of B.P.Ed equivalent to qualification of C.P.Ed, is that besides being higher, it covers all the subjects in much expanded form. But this analogy cannot be applied to the qualification of D.P.Ed Even though, the Rules of 1971 recognize the qualification of D.P.Ed as eligibility qualification for appointment on the post of PTI Gr.II, but D.P.Ed can not be treated equivalent to C.P.Ed envisaged in the Regulations of 2001, which only recognize the C.P.Ed of not less than two years duration, as the necessary qualification for appointment on the post of PTI at elementary leval and Bachelor in Physical Education (B.P.Ed) of the duration of three years or its equivalent at Secondary/High School level. Qualification of C.P.Ed With which the comparison has to be made, thus has to be of duratin of not less than two years and therefore, the Diploma course of the duration of one year, cannot be on similar analogy treated equivalent thereto. Moreover, such comparison cannot be made with the C.P.Ed of one year becasue only those already possessing qualification of C.P.Ed of one year or admitted to C.P.Ed course of one year, upto 2005, have been, by virtue of the Note given below Section 2 Second Schedule to the Regulations fo 2001, treated as eligible and not otherwise. Therefore, the premise on which we have held the qualification of B.P.Ed of the duration of three years, equivalent to the qualification of C.P.Ed of the duration of two years, cannot be applied to the qualification of D.P.Ed of one year duration.

31. Question somewhat similar to the one involved in this matter, fell for consideration of Division Bench of this Court in State of Rajasthan v. Hari Ram, supra, albeit, in the context of direct recruitment to the post of PTI Gr.II The relevant entry then prevalent in the Schedule appended to the Rules of 1971, provided that those possessing the qualification of Graduation or equivalent examination, with Diploma in Physicial Education or Sedcondary with 4 years diploma in Physical Education, would be eligible for appointment. Those possessing the Bachelor's degree in Physicial Education from Indira Gandhi University, Nagpur and other Universities, recognized by University Grants Commission, were not considered eligible for direct recruitment to the post of PTI Gr.II Such candidates approached this court by filing writ petitions. The Single Bench of this court allowed the petitions holding that the candidates possessing the Bachelor's Degree in Physical Education from Universities recognized by the UGC should be considered eligible along-with other candidates, who possess the Graduate Degree or equivalent to the Graduate Degree and Diploma in Physical Education. Challenge was made to the aforesaid Single Bench judgment before the Division Bench in appeal. It was argued on behalf of the State that the Single Bench has not considered the Rules in their proper perspective and that for the purpose of appointment on the post of PTI Gr.II, special physical practical training is most essential and if untrained persons are recruited and appointed on the post of PTI, they would not be able to impart physical training to the students. Contention of writ petitioners was that while pursuing the course of degree in Physical Education, they have undergone more theoretical studies and also more practical training in comparison to those persons, who have acquired diploma in Physical Education, and some of them from the same University, from which the writ petitioners acquired the degree qualification. While deciding the Special Appeal, the Division Bench of this Court, in Para 8 of the judgmnet, held that,

“….such construction of the rules is meaningless and it causes miscarriage of justice with regard to the rights of the persons like the petitioenrs who are qualified and are in possesion of the degree in Physical Education. This apart, a person who undergoes a degree course in particular subject has to pursue the said course for such education, study more papers and has to undergo more practical training in comparison to those persons who acquired diploma course which is comparatively of short duration….”

32. It must therefore be held that while deciding the question of equivalence of two qualifications, comperative duration of two courses is a significant aspect, especially when the practical training is an important component of the curriculum. When the Regulations of 2001 for appointment of PTI at elementary level, requires C.P.Ed qualification of duration of two years, with a positive mandate to discontinue/derecognize C.P.Ed qualification of duration of one year from 2005 onwards, C.P.Ed and D.P.Ed qualification of one year and also, B.P.Ed qualification of one year, cannot be treated equivalent to C.P.Ed qualification of the duration of two years. Candidates possessing B.P.Ed qualification of three years have to be however treated eligible for appointment on the post of PTI at elementary level for the aforestated reasons.

33. We accordingly decide the first qustion posed above.

(2) Whether the impugned instruction dated 06.01.2010 issued by the Government of Rajasthan to the Rajasthan Public Service Commission, directing to treat the candidates possessing D.P.Ed and B.P.Ed, eligible for appointment to the post of PTI Gr.III tantamount to changing rules of the game in the midst of the process of selection?

34. Whether or not declaration of equivalence of a qualification with that of originally notified in the advertisement for selection, tantamount to changing rules of the game in the midst of process of selection, depends on the facts of each case. In the present case, the notification inviting applications was issued by the R.P.S.C on 03.09.2008 In so far as the post of P.T.I Gr.III (Post Code 36) is concerned, the aforesaid notification in conformity with the Rules of 1971 required that the candidates possessing the qualification of Senior Secondary Certificate of Board of Secondary Education recognized by the Government of Rajasthan and Secondary or equivalent examination recognized by the Government of Rajasthan with Certificate in Physical Education, would be eligible for appointment on the post of P.T.I Gr.III The Schedule appended to the Services Rules of 1971 in this behalf also prescribes the aforesaid as requisite qualification, however with following note:—

“Note:— Following candidates shall also be eligible for recruitment to the post of PTI Gr.III:—

(1) Who have passed C.P.Ed Examination before this amendment.

(2) Who have been admitted to C.P.Ed upto session 1994-95 and passed thereafter.

(3) Widows and Divorced Woman appointed prior to this amendment under proviso to Rule 22 of the Rajasthan Education Subordinate Service Rules, 1971.”

35. The Note aforesaid thus clarified that the candidates, who either passed the C.P.Ed Examination before this amendment brought vide notification dated 25.08.1995 or who were already admitted to C.P.Ed Course upto Sessions 1994-95 and passed thereafter, would be eligible for recruitment to the post of P.T.I Gr.III In other words, those acquiring qualification of C.P.Ed after the date of aforesaid amendment or admitted to C.P.Ed Course after the Session 1994-95, were held not to be eligible for appointment to the post of P.T.I Gr.III Then there is the provision in the NCTE Regulations of 2001 requiring Certificate of Physical Education of two years duration for recruitment to the post of P.T.I Gr.III Then, certificate course of Physical Education in Rajasthan was closed down by order of the Government in 2000. In view of all this confusion, the R.P.S.C was compelled to seek clarification from the Government. The Government, in response to the letter dated 13.10.2009 of the RPSC, reference of which is made in the Government Order dated 06.01.2010 itself, has merely clarified to the R.P.S.C that since the C.P.Ed course is conducted after the 12 standard examination, the candidates possessing comparatively higher qualification in Physical Education such as D.P.Ed and B.P.Ed, should be treated eligible for appointment on the post of P.T.I Gr.III Learned Single Judge, in the impugned judgment, delivered earlier on 01.02.2012 and in continuity thereof on 04.07.2012, has, relying on the Supreme Court judgments in K. Manjusree v. State of AP - (2008) 3 SCC 512, Hemani Malhotra v. High Court Of Delhi - (2008) 7 SCC 11, Rakhi Ray v. High Court of Delhi - (2010) 2 SCC 637 : AIR 2010 SC 932 and State of Jharkhan v. Ashok Kumar Dangi - AIR 2011 SC 3182, held that this amounted to changing rules of the game after commencement of process of selection.

36. Two important points that have been missed out here; firstly, what would be effect of the aforesaid Note given below the Schedule appended to the Rules of 1971; and secondly, what is the effect of the prescription of academic qualification in the Regulations of 2001, for the post of P.T.I Gr.III, apart from Senior Secondary School Certificate or its equivalent, Certificate in Physical Education of duration of not less than two years or its equivalent. Seeking clarification had become necessary because in Entry No. 2 relating to P.T.I Gr.III, in the Schedule appended to the Rules of 1971, the duration of Certificate in Physical Education was not mentioned, whereas the Note given therebelow restricted the eligibility only to such candidates, who passed C.P.Ed Examination or were admitted to such study course before insertion thereof vide aforesaid Notification dated 25.08.1995 In contrast, however, Section 2 of Second Schedule of the Regulations of 2001 mentioned that Certificate in Physical Eduction should be of duration of not less than two years or its equivalent and what is meant by equivalence, is nowhere clear. Besides, the Note given therebelow also clarified that some of the States are having the course Certificate in Physical Education of duration of one year only, while in some other States, the students passing Secondary level examination are admitted to such course. It was ordained upon all the States to conduct Certificate in Physical Programme of duration of not less than two years by May, 2005.

37. What is peculiar to the State of Rajasthan is that the study of Certificate Course in Physical Education in the State was of duration of only one year and that too was discontinued after 2000 by order of the Government dated 05.04.2000 and there was no C.P.Ed course of the duration of two years. In those facts, if the RPSC had sought clarification and the Government clarified, it cannot be held that this amounted to change of eligibility criteria or otherwise amounted to changing rules of the game, in the midst of process of selection.

(3) Whether the amendment in the eligibility criteria for appointment on the post of PTI Gr.III vide Notification dated 09.12.2011 in the Rules of 1971, can be retrospectively applied to the process of selection initiated pursuant to the advertisement dated 03.09.2008?

38. Question whether the amendment brought about vide Notification dated 09.12.2011, now prescribing B.P.Ed with five years experience recognized by N.C.T.E or D.P.Ed, apart from C.P.Ed, recognized by N.C.T.E with ten years experience, as the eligibility qualification for appointment on the post of P.T.I Gr.III, can be applied retrospectively, has to be appreciated in the facts situation of the present case, because clarificatory letter sent by the Government to the R.P.S.C, is not based on the aforesaid amendment, which has come about much subsequently. Obviously, the amendment has for future obviated the need of any such clarification by making the position of the Rules explicitly clear. Apart from those possessing Certificate in Physical Education recognized by N.C.T.E, this amendment has also made those possessing B.P.Ed and D.P.Ed eligible for appointment on the post of P.T.I Gr.III As already discussed above, since the clarification issued by the Government on the askance of the R.P.S.C, would not tantamount to changing rules of the game in the midst of process of selection, for the same reason, it also cannot be held that the Rules of 1971 amended vide Notification dated 09.12.2011 have been applied retrospectively to the process of selection in question.

(4) Whether the amendment in the eligibility criteria for appointment to the post of PTI Gr.III by Notification dated 09.12.2011, being in deviation from and conflict with, the prescription of such qualification in Section 2 of Second Schedule of the Regulations of 2001, is inoperative and unenforceable?

39. In fact, this question did not directly fall for consideration of the Single Bench because admittedly the process of selection for recruitment to the post of P.T.I Gr.III as also P.T.I Gr.II, was initiated vide Notification dated 03.09.2008 and the subject amendment in the Rules were brought about vide Notification of the Government dated 09.12.2011 The learned Single Judge while placing reliance on the judgment of the Division Bench of this Court in Kailash Chand Harijan, supra, held that the Regulation 4 of the Regulations of 2001 mandates that qualification prescribed for appointment to the posts in question under the relevant service Rules should be brought in conformity with Regulations of 2001 and not in conflict therewith. Even though the Single Bench in subsequently delivered judgment dated 04.07.2012 held that the amendment notification dated 09.12.2011 has no application to the present process of selection started in 2008 and that the amendment aforesaid cannot be retrospectively applied, the Single Bench was yet tempted to hold that the Rules of 1971 cannot be applied to the extent they are repugnant to the Regulations of 2001, because this amendment is not having the assent of the President of India and finally held that the said amendment cannot be enforced, being in conflict with the Regulations of 2001. The implication of the aforesaid observation made by the learned Single Judge would be that the amended Rules, being in conflict with the Regulations of 2001, would remain inoperative and the same cannot be pressed into application till the same received the presidential assent. In our considered view, this question did not arise for consideration for the Single Bench as the scope of remand by the Division Bench to the Single Bench was confined to examining the effect of the amendment on the process of selection in question. We, however, need not dwell much on this aspect of the matter because another Division Bench of this court has already, while dismissing three writ petitions at the Principal Seat, Jodhpur, leading one being D.B Civil Writ Petition No. 8651/2012 - Madan Gir Others v. State Of Rajasthan Others, vide judgment dated 01.11.2012, upheld the validity of the aforesaid amendment on the analogy that the qualification of C.P.Ed of the duration of not less than two years or its equivalent, is prescribed as minimum academic and professional qualification for appointment to the post of P.T.I Gr.III, and the State Government is competent to prescribe better or higher qualification. In holding so, Division Bench also took note of the fact that no institution is providing qualification of C.P.Ed in the State of Rajasthan at least for last one decade. Subsequently, as many as 25 writ petitions, challenging the validity of aforesaid amendment, were also dismissed by a coordinate Division Bench at Jaipur Bench, vide judgment dated 18.03.2013, leading judgment being delivered in D.B Civil Writ Petition No. 1787/2013 - Om Prakash Godara v. State of Rajasthan. We find no reason to differ with the view expressed by the first Division Bench in Madan Gir, supra, and concurred in Om Prakash Godara, supra, by the subsequent Division Bench.

(5) Whether the State Government is competent to prescribe better or higher qualification than that prescribed by NCTE in the Regulations of 2001?

40. The National Council for Teacher Education Act, 1993, deals with co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions within the meaning of Entry 66 of List-I of Seventh Schedule to the Constitution, which empowers the Parliament to secure the standards of research and higher education, the object being that the power of such legislation of a particular State or States in determining the natural progresses must be so exercised not to directly encroach upon the power of the Union under Entry 67 of List-I of Seventh Schedule. The National Council for Teacher Education has, in exercise of the powers conferred under clause (d)(i) of sub-section (2) of Section 32 read with Section 12(d) of the National Council for Teacher Education Act, 1993 (73 of 1993), made the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001. The aforesaid Regulations determine, the minimum qualification for recruitment of teachers at various levels in the schools. In so far as the physical education in the Educational Institutions is concerned, the subject is dealt with in Section 2 of Second Schedule to the Regulations of 2001. It is divided into three levels, namely, (1) Elementary, (2) Secondary/High School, and (3) Senior Secondary. For Elementary level, the minimum academic and professional qualification prescribed is - (i) Senior Secondary School certificate or Intermediate or its equivalent, and (ii) Certificate in Physical Education (C.P.Ed) of a duration of not less than two years or its equivalent. For Secondary/High School level, the minimum academic and professional qualification prescribed is - Graduate with Bachelor of Physical Education (B.P.Ed) or its equivalent. For Senior Secondary level, the minimum academic and professional qualification prescribed is - M.P.E/M.P.Ed (2 year duration).

41. In the State of Rajasthan, as has been given out on behalf of the State Government, by the learned Additional Advocate General, at most of the places the schools of elementary level and secondary/high school level, have been combined and it is, therefore, that the State Government has, by executive order dated 06.01.2010, in response to query by the Rajasthan Public Service Commission clarified, in its wisdom thought it appropriate to also prescribe the professional qualification of D.P.Ed/B.P.Ed, apart from C.P.Ed of the duration of two years, already given in the Regulations of 2001, as the requisite eligibility qualification for appointment on the post of P.T.I Gr.III This action of the State does not tantamount to lowering down the standards of “research and the higher education”, the object for which the Regulations of 2001 have been framed by the National Council for Teacher Education. It rather lays down higher standards and does not in any manner compromise with the role assigned to the National Council for Teacher Education to deal with co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions within the meaning of Entry 66 of List-I of Seventh Schedule of the Constitution. Apart from this reason, the State of Rajasthan has come out with two local reasons in support of its action; first, as already noticed above, is the fact that most of the Government schools throughout the State are set up in the combination of primary/elementary and secondary/high school and therefore a common physical teacher may cater to the need of the students of both levels; secondly, in the State of Rajasthan, study of Certificate of Physical Education has been discontinued and closed down by the order of the Government dated 05.04.2000 and earlier to that also, the Certificate course that was awarded in the State of Rajasthan, was only of duration of one year or less. No doubt, the Note given below the relevant relating to P.T.I Gr.III, in the Schedule appended to the Regulations of 2001 clarified that some of the States are having certificate in physical education courses of one year duration only, while in some other States, students passing secondary level examination are admitted to certificate in physical education courses. Such States may, by 2005, conduct certificate in physical education programmes of a duration of not less than two years, with admission being open to Senior Secondary/Intermediate pass candidates, but so far no such course has been started at-least in the State of Rajasthan. It is, therefore, that the State Government initially issued the executive order in response to the query of R.P.S.C and subsequently brought about the amendment in the relevant Entry to the Schedule appended to the Rules of 1971, and in doing so, it rather intended to ensure better or higher standard of physical education for appointment in the State of Rajasthan. This does not in any way disqualify those, who had acquired the Certification in Physical Education prior to promulgation of the Regulations of 2001 but only makes others also eligible for appointment on the post of P.T.I Gr.III, who have acquired better and higher qualification.

42. The Supreme Court in Dr. Ambesh Kumar v. Principal, LLRM Medical College - 1986 SCC Supp 543, where the State Government laid down a further eligibility qualification for admission to the post-graduate course in medical college in the State in accordance with the criteria laid down by the Medical Council of India, held that it cannot be said to be in conflict with or repugnant to or encroach upon; the Regulations framed by the Medical Council of India, rather by laying down further eligibility qualification, it promoted further the determination of standards in institutions for higher education. The State Government in exercise of its powers under Article 162 of the Constitution can make an order relating to matters referred to in Entry 25 of the Concurrent List in the absence of any law made by the Central Legislature and it cannot be assailed on the ground that the same is beyond the competence of the State Government to make such law provided it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in Entry 66 of List I.

(6) What is the effect of the Division Bench judgment of this Court in Kailash Chandra Harijan, supra, on the clarification/amendment to the Rules of 1971, made by the State Government?

43. Question whether the zone of consideration for appointment on the post of P.T.I Gr.III, can be confined only to those possessing the certificate in Physical education of the duration of one year/two years applying the analogy of Division Bench judgment of this court in Kailash Chandra Harijan, supra, calls for a deeper examination. That judgment, in fact, was based on three earlier judgments of the Supreme Court in P.M Latha v. State of Kerala - (2003) 3 SCC 541, Yogesh Kumar v. Government of NCT Delhi - (2003) 3 SCC 548 and Dilip Kumar Ghosh v. Chairman - (2005) 7 SCC 567.

44. In P.M Latha, supra, the Supreme Court observed that B.Ed qualification is not a higher qualification than the TTC and that the holder of a B.Ed degree cannot be held eligible for a post of primary school teacher, because Trained Teacher Certificate is given to those, who are specifically trained to teach small children in primary classes; whereas B.Ed degree trains a person to teach the student of classes above the primary section. B.Ed degree holders cannot, therefore, be held to be holding qualification suitable for appointment as teachers in primary schools. It has been made clear in P.M Latha (supra), that whether for a particular post, source of recruitment should be from the candidates with TTC qualification or B.Ed qualification, is a matter of recruitment policy and the State is justified in prescribing qualification for the post of primary teachers as holder of TTC and not B.Ed, and accordingly directed exclusion of the candidates holding the B.Ed degree and not the TTE Certificate, from the merit list.

45. In Yogesh Kumar, supra, the Supreme Court, referring to the decision of P.M Latha supra, has held that B.Ed qualification cannot be treated as a qualification higher than TTC, because the nature of training imparted for grant of the said certificate and for the said degree, is totally different and between the two, there is no parity whatsoever. It was held whether B.Ed qualification can also be prescribed for primary level was the question to be decided by the authorities concerned and candidates cannot be considered against vacant posts.

46. In Dilip Kumar Ghosh, supra, also the Supreme Court has taken the same view as in P.M Latha (supra) and Yogesh Kumar (supra), that in B.Ed curriculum, there is no subject of child psychology, whereas Junior Basic Training/Primary Teachers Training Certificate has child psychology as a subject. B.Ed curriculum is generic in nature and deals with subjects like the principles of educational curriculum studies, educational psychology, development of education in modern India, social organization and instructional methods, etc. The holders of JBT/PTTC are trained teachers meant for imparting proper education to the primary school students. A person possessing B.Ed Degree may not be equipped to understand psychology of a child at that early stage and therefore it cannot be considered higher qualification.

47. On the basis of aforesaid judgments of the Supreme Court, a Division Bench of this Court in Kailash Chandra Harijan, supra, held that prescription of B.Ed as requisite qualification for appointment as primary school teacher cannot be upheld and that the Regulations of 2001 are binding on the State Government and the State Government was required to modify the criteria/Rules in conformity with the qualification prescribed therein and that the recruitment of the candidates holding the B.Ed Degree against the post of primary school teachers cannot be made on the analogy that B.Ed is higher qualification than the BSTC/TTC.

48. In the present case, however, the fact situation is somewhat different. While in TTC/BSTC/JBT/PTTC, special training is imparted to the candidates for educating the students of tender age at the primary level, in the present case, as per comparative analysis of the syllabus/curriculum made above, it is clear that the subjects taught in the course of Certificate in Physical Education are included in the syllabus/curriculum of the B.P.Ed Unlike TTC/BSTC/JBT/PTTC, the subjects of Physical Education are same both at the Certificate level and Degree level. Degree of B.P.Ed is not a totally different and distinct qualification. In fact, the same subjects are taught to the candidates in much comprehensive, expanded and diversified way in the degree course of Bachelor of Physical Education.

49. All the above referred to judgments of the Supreme Court, lay down that B.Ed cannot be treated as higher qualification than the TTC because nature of training education imparted for grant of Certificate and Degree is totally different and between them there is no parity whatsoever. But here, in the instant case, it has been successfully demonstrated before us that not only the training imparted for grant of Certificate and Degree is similar, but also there is striking similarity between the curriculum/syllabus of the two. In fact, the same subjects are taught and also the training in degree course imparted to the candidates is much wider and comprehensive than in the certificate course of C.P.Ed Besides, in Yogesh Kumar, supra, a significant argument was noticed by the Supreme Court that more candidates available for recruitment at primary school are from B.Ed category and very few from TTC category. This argument was repelled observing “whether for the aforesaid reasons, B.Ed qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned.” Their this observation was confined only to the advertisement in question and not for any B.Ed candidates appointed as primary teachers pursuant to advertisements in the past. In P.M Latha, supra, also the Supreme Court held that what should be the source of recruitment for a particular post, is a matter of recruitment policy.

(7) Whether the R.P.S.C on the basis of clarificatory letter of the State Government dated 06.01.2010, can consider the candidature of the applicants passing D.P.Ed and B.P.Ed for appointment on the post of P.T.I Gr.III?

50. A question now arises as to whether all such candidates, who possessed the qualification of B.P.Ed, and applied for appointment on the post of P.T.I Gr.II indicating the post code No. 35 in the OMR application forms, could be considered for appointment on the post of P.T.I Gr.III, for which (post code number is 36), they did not apply? Clause 2 of the advertisement dated 03.09.2008 categorically mentioned that the applications will have to be submitted for the two posts separately indicating the post code Nos. 35 and 36 on different OMR application forms. This thus clearly shows that the RPSC accepted that a candidate, who was eligible for appointment on both the posts, should apply for both of them. The clarification of the Government issued in the present case had become necessary because the C.P.Ed course of one year duration was closed/discontinued by the order of the Government dated 05.04.2000 in the State of Rajasthan and the Regulations of 2001 required the C.P.Ed of the duration of not less than two years, whereas neither the Rules of 1971 nor the advertisement specifically indicated as to what should be the duration of C.P.Ed Government merely clarified that position but clarification by the Government could not be construed to mean that even if a candidate has applied only for appointment on the post of P.T.I Gr.II and if not selected for appointment on that post, he can still be considered for appointment on the post of P.T.I Gr.III, despite his having not separately submitting OMR application form for appointment on that post. The R.P.S.C has disclosed before this court the details of the candidates, who applied for appointment on the post of P.T.I Gr.II, but have been selected for appointment on the post of P.T.I Gr.III and vice-versa, in para 4 of the reply to the Writ Petition No. 16048/2010 - Ram Prasad Meena v. State, which is reproduced as follows:—

“That respondent RPSC forwarded names of 62 candidates for appointment on the post of PTI Gr.II Out of which 43 candidates applied only for PTI Gr.II and selected, 11 candidates applied for both the posts of PTI Gr.II and PTI Gr.III and 8 candidates applied only for PTI Gr.III but selected on the post of PTI Gr.II

That so far as PTI Gr.III is concerned, 405 posts were advertised and examination was common for the post of PTI Gr.II and PTI Gr.III; as such name of 405 candidates have been forwarded by RPSC.

Out of 405 candidates, 62 candidates were applicant only for PTI Gr.II-Post Code-35, 180 candidates were the applicant of PTI Gr.II and PTI Gr.III-Code-36 also and 163 candidates applied only for PTI Gr.III The above fact demonstrates that only 62 selected candidates in PTI Gr.III were not the applicants of PTI Gr.III Code-36, however, they were selected. Rest candidates are applicants for Post Code 35 as well as Code 36.”

51. That means that even those candidates, who applied for one post, have been considered for appointment on another post to the detriment of those, who either applied against posts of one code, and also those, who applied against posts of both codes. This approach of the R.P.S.C completely frustrated the very condition incorporated in Clause 2 of the advertisement, according to which the candidates, who considered themselves eligible for the posts of both Codes were required to submit their separate OMR application form indicating respectively post code nos. 35 and 36. That would mean that the candidates, who, by their own choice, applied for appointment on one post, and consciously decided not to apply for another, would yet be considered for appointment on such latter post. The R.P.S.C did not get any such authority to change the choice of the candidates and make that choice on their behalf only on the strength of the clarification made by the Government. The Government did not issue any direction to the R.P.S.C to consider the candidature of applicants, who submitted their application forms indicating one post, for appointment against another post. The clarificatory order of the Government does not contain any such stipulation. The Government, in any case, could not have issued any such direction contrary to the specific condition of the advertisement that required candidates to separately apply for two posts.

52. According to the R.P.S.C only 180 candidates were such, who applied against both the posts, notwithstanding the fact that there was common written examination for both the posts. Only these 180 candidates, apart from 163 candidates, who applied for the posts of P.T.I Gr.III, would be considered for appointment on such posts subject to their satisfying the eligibility criteria. Thus, a total of 343 (180+163) candidates would be liable to be considered for appointment on the posts of P.T.I Gr.III In the same way, 242 (62+180) candidates, who fulfill the eligibility criteria, would be liable to be considered for appointment on the post of P.T.I Gr.II

53. In view of what we have held above on the question of equivalence and eligibility, the R.P.S.C would be required to declare result of the candidates strictly as per the choice made by the candidates in the OMR application forms separately.

54. These appeals are thus allowed in part. The impugned judgment passed by learned Single Judge accordingly stands modified with direction to the R.P.S.C to declare the result afresh by treating the candidates holding the qualification of B.P.Ed and, C.P.Ed of the duration of two years as also of the duration of one year acquired prior to 2005, eligible for appointment to the post of P.T.I Gr.III and forward the select list to the Government for appointments within a period of one month.