Prakash Chand Meena & Ors. v. State Of Rajasthan & Ors.

BY THE COURT:

These writ petitions were initially decided on 10.5.2011, however, aggrieved by the judgment, special appeals were preferred before the Division Bench which were decided by the judgment dated 17.10.2011 in DB Civil Special Appeal (Writ) No. 836/2011 and cognate matters with the following observations, which are quoted thus -

“Learned counsel for the parties have agreed that it is necessary to determine the question whether candidates possessing B.P.Ed qualification are eligible for appointment on the post of Physical Training Instructor, Grade III. This question was left open by the Single Bench, while directing the respondents to prepare separate lists as per the application forms for the posts of Physical Training Instructor, Grade II and III. There may be difficulty in drawing even separate lists, until and unless the question, whether the candidates possessing B.P.Ed Qualification can be appointed as Physical Training Instructor, Grade III, particularly for primary teaching, is decided. This question is also required to be gone into whether State Government could have ordered inclusion of B.P.Ed qualification in the zone of eligibility for appointment on the post of Physical Training Instructor, Grade III, when it was not so mentioned in the advertisement and there may be certain incumbents, possessing the said qualification might not have applied for the post of Physical Training Instructor, Grade III. In these circumstances, we find that all these questions are necessary to be decided.

Thus, the counsel for the parties have rightly agreed 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.”

Perusal of the judgment reveals that the question as to whether the candidates possessing the qualification of B.P.Ed are eligible and State Government could have issued directions of inclusion of B.P.Ed qualification in the zone of eligibility for appointment to the post of Physical Training Instructor Gr III (for short ‘PTI Gr.III’) when it was not so mentioned in the advertisement and there may be certain incumbents possessing said qualification might not have applied for the said post, are required to be decided.

The parties were given liberty to furnish additional pleadings on the issue as to whether B.P.Ed Course can be treated equivalent to C.P.Ed Course etc. On remand of the case, it was heard afresh on all the issues which include the issue framed by the Division Bench. Therein, not only relevant provisions of law but the judgments on the issue were considered and decided by this court and none of the parties made reference about the amendment in the Rajasthan Education Subordinate Service Rules, 1971 vide Notification dated 9.12.2011 This court vide its judgment dated 1.2.2012 held that nobody can be held eligible contrary to the provisions of law. Referring to provisions of the National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in School) Regulations, 2001 (for short ‘the Regulations of 2001’), where Second schedule of the Regulations of 2001 provides for minimum qualification for the post of PTI thus referring to those Regulations, it was held that the candidates in possession of the qualification other than provided in the Regulations cannot be treated to be eligible. The Single Bench decided other issues as well while delivering the judgment dated 1.2.2012

Against the said judgment dated 1.2.2012, appeals were preferred and thereupon learned Division Bench decided the appeals vide order dated 30.3.2012 with the following directions:-

“Heard counsel appearing on behalf of the parties.

Applications have been filed in DB SAW Nos. 220/2012, 311/2012 and 329/2012 seeking leave to file appeals. Applications are disposed of. Permission to file appeals is accordingly granted.

Amendment, which was made in Rajasthan Education Subordinate Service Rules, 1971, was not brought into the notice of the Single Bench. As such, counsel appearing on behalf of the parties have rightly agreed that impugned order be set aside and the Single Bench be directed to consider the effect of the Amendment, which was made in Rajasthan Education Subordinate Service Rules, 1971 and thereafter to render fresh decision.

As agreed by the parties, impugned order is set aside. Cases are remitted to the Single Bench. Office is directed to list the cases before appropriate Bench in the week commencing 09.04.2012

Appeals are allowed. Stay applications are disposed of.

Parties to bear their own costs.”

By virtue of the aforesaid judgment, it is second remand of the petitions on an issue which was not raised while arguing the matters before the Single Bench on two occasions. It is agreed by the parties that all other issues argued before the learned Single Judge earlier and already decided thus while deciding these writ petitions afresh judgment on those issues are not required to be repeated in this judgment.

Presently, this court is to decide the issue which has been argued after second remand of the matters. However, it would be relevant to narrate few brief facts of the cases in order of dates.

1. The Rajasthan Public Service Commission issued an advertisement for recruitment to the post of PTI Gr II and III vide advertisement dated 3.9.2008

2. A corrigendum in the advertisement was issued on 22.9.2009 directing the candidates to appear for the post for which they possess requisite qualification/training.

3. On 4.10.2009, RPSC conducted joint competitive examination for both the posts namely PTI Gr II and PTI Gr III. After competitive examination on 4.10.2009, Government of Rajasthan issued an order on 6.1.2010 directing that the candidates with higher qualification of B.P.Ed and D.P.Ed would be eligible for the post of PTI Gr II and III. The writ petitions were thereafter filed to challenge the order on many grounds as well as the ground that the order of the State Government is after competitive examination thus it is illegal and has deprived many such candidates who are having qualification as given in the letter dated 6.1.2010 but did not apply in absence of clarification to that effect in the advertisement.

4. For the fist time, writ petitions were allowed vide judgment dated 10.5.2011

5. On 17.10.2011, first remand was made by the Division Bench to decide the issue as to whether inclusion of B.P.Ed qualifications for the post of PTI Gr II and III is valid or not.

6. The writ petitions were allowed on second occasion vide judgment dated 1.2.2012

7. There is second remand by the Division Bench vide order dated 30.3.2012 It is in reference to the amendment in the Rajasthan Education Subordinate Service Rules, 1971 vide Notification dated 9.12.2011

The issue which has now been raised by learned counsel for the respondents is as to whether the amendment in the Rules of 1971 vide Notification dated 9.12.2011 can be ignored so as to eliminate B.P.Ed and D.P.Ed qualification for the post of PTI Gr II and III.

This court has already decided the issue holding that B.P.Ed is not one of the qualifications prescribed for appointment as Physical Teacher at elementary level i.e PTI Gr III. The qualification of B.P.Ed is prescribed for appointment as PTI Gr II which is at the level of Secondary/High School.

Learned counsel for the respondents, referring to the Notification dated 9.12.2011, amending the Rules of 1971, submits that B.P.Ed and D.P.Ed are now taken as one of the qualifications for the post of PTI Gr III thus candidates having such qualification should not be eliminated from selection. The argument is in reference to the second remand order by the Division Bench in view of the amendment in the Regulations of 1971. Two arguments have been raised, which are as follows -

First, that the NCTE Regulations of 2001 make the qualification of PTI at different level than given in the State Government Regulations thus there is a mis-match of the Regulations of NCTE and the Service Rules of 1971 hence ignoring the NCTE Regulations of 2001, Rules of 1971 should be given precedence as they are very specific to the hierarchy of Physical Training Instructors.

Second argument is that the NCTE Act is not meant to provide educational qualification for appointment to the post of teachers, rather it is only for the purpose of recognition of training schools in view of the judgment of the Hon'ble Supreme Court in the case of “Basic Education Board, U.P v. Upendra Rai” reported as 2008 (3) SCC 432.

Other than the aforesaid, no argument has been raised on the issues already decided by this court on earlier occasion vide its judgment dated 1.2.2012 thus it is to be rendered final in all respect and thereby to be treated as part and parcel of this judgment as the said judgment is not required to be reproduced again to make this judgment bulky and the directions aforesaid have been given for the reason that earlier judgment dated 1.2.2012 has been set aside by the Division Bench vide its judgment dated 30.3.2012 Thus earlier judgment has to be given life as no argument has been raised in regard to the issues earlier decided though it was kept open for all lawyers to argue the matter entirely and afresh but the only issue raised is in reference to the amendment in the Rules of 1971 and two arguments in that regard have already framed thus are decided by this judgment as under -

1. Effect of the amendment of Service Rules of 1971 by Notification dated 9.12.2011 -

Learned counsel for private respondents submit that by virtue of the amendment in the Service Rules of 1971, those holding qualification of B.P.Ed and D.P.Ed are also eligible for appointment to the post of PTI Gr III thus should not be excluded from recruitment pursuant to the advertisement of the year 2008.

Learned counsel for petitioners raised objection regarding applicability of Notification dated 0.12.2011 amending the Rules of 1971. It is submitted that for recruitment pursuant to the advertisement of the year 2008, amendment in the qualification cannot be made effective vide Notification dated 9.12.2011 i.e almost after more than three years, that too, when amended Rules have not been given retrospective effect. The advertisement for the post was issued on 3.9.2008 followed by appearance of the candidates in the competitive examination held on 4.10.2009 i.e almost more than two years back prior to amendment in the Rules of 1971. The argument is that rules of game cannot be changed in the midst of recruitment or afterwards. The judgments of the Hon'ble Supreme Court in the case of “K. Manjusree v. State of AP” reported in (2008) 3 SCC 512, “Hemani Malhotra v. High Court Of Delhi”, reported as (2008) 7 SCC 11, “Rakhi Ray v. High Court of Delhi”, reported as AIR 2010 SC 932 and “State of Jharkhand v. Ashok Kumar Dangi”, reported as AIR 2011 SC 3182 have been relied. Therein, it was held that rules of game in the midst of recruitment cannot be changed as criteria for selection has to be prescribed in advance. According to the learned counsel for petitioner, amendment in the Rules of 1971 vide Notification dated 9.12.2011 cannot have effect to the recruitment of 2008.

Rather, the question aforesaid has even been answered while remanding the case by the Division Bench by observing that by virtue of inclusion of any other qualification then given in the advertisement will definitely deprive certain incumbents possessing said qualification and might not have applied for the post of PTI Gr III. For ready reference, observations of the Division Bench are reproduced hereunder -

“Learned counsel for the parties have agreed that it is necessary to determine the question whether candidates possessing B.P.Ed qualification are eligible for appointment on the post of Physical Training Instructor, Grade III. This question was left open by the Single Bench, while directing the respondents to prepare separate lists as per the application forms for the posts of Physical Training Instructor, Grade II and III. There may be difficulty in drawing even separate lists, until and unless the question, whether the candidates possessing B.P.Ed qualification can be appointed as Physical Training Instructor, Grade III, particularly for primary teaching, is decided. This question is also required to be gone into whether State Government could have ordered inclusion of B.P.Ed qualification in the zone of eligibility for appointment on the post of Physical Training Instructor, Grade III, when it was not so mentioned in the advertisement and there may be certain incumbents, possessing the said qualification might not have applied for the post of Physical Training Instructor, Grade III. In these circumstances, we find that all these questions are necessary to be decided.

(emphasis added)

Thus, the counsel for the parties have rightly agreed 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.”

The question is as to whether the State Government could have ordered for inclusion of B.P.Ed qualification in the zone of eligibility for appointment on the post of PTI Gr III. The portion quoted above refers a question for decision as to whether a candidate who may not have applied for the post of PTI Gr II and III taking note of terms of the advertisement which were modified after competitive examination vide order dated 6.1.2010 and amendment made in the Rules vide Notification dated 9.12.2011 then what would be the effect?

In my opinion, amendment in the Rules of 1971 vide Notification dated 9.12.2011 is not given retrospective effect thus cannot be applied to the recruitment of the year 2008. The view aforesaid is even supported by the judgment of the Hon'ble Supreme Court referred to above, wherein, it has been held that rules of game cannot be changed in the midst of recruitment. In the instant case, competitive examination was held on 4.10.2009 itself i.e much prior to the amendment in the Rules thus those not eligible at the time of appearance in the competitive examination cannot be held to be eligible by subsequent amendment in the rules. The argument of the learned counsel for private respondents is hit by the judgment of the Hon'ble Supreme Court in the case of K. Manjusree (supra) and many other judgments referred to above.

It is further to be seen that when the advertisement was issued, requisite qualification for PTI Gr III was provided and taking note of the aforesaid, only eligible candidates would have applied for the post. By default, if few private respondents, though not eligible, applied for the post, then it should not be to their benefit because if they are held eligible now pursuant to the amendment in the Rules of 1971 vide Notification dated 9.12.2011 then all those similarly placed, would be deprived to get right of consideration, more so when they were law abiding and did not apply for the post of PTI Gr III taking note of the required qualification in the advertisement. Thus, first argument cannot be accepted even for the aforesaid reason also.

The third reason for rejection of first argument of the counsel for respondents is in reference to NCTE Regulations of 2001. As per section 12(d) of the NCTE Act, 1993, the council is authorised to provide minimum qualification of teacher, which was done by framing Regulations of 2001. Those Regulations have been dealt with in detail in the judgment dated 1.2.2012 in the present matter itself on earlier occasion. The Regulation 2 provides as to whom it will apply and Regulation 4 requires amendment in the recruitment rules within a period of three years. Regulation 5 provides for power to relax the regulation and Regulation 6 provides interpretation. The provisions of Regulations 2, 3, 4, 5 and 6 are quoted hereunder for ready reference -

“(2). Applicability

These Regulations shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognized by Central or State Government and other authorities for imparting education at pre-school, nursery followed by first two years in formal school, 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.

4. Amendment of Recruitment Rules

The existing recruitment rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules. Meanwhile, teachers appointed as per the existing recruitment qualifications, subsequent to the issue of these Regulations, will be required to acquire qualifications as prescribed in the Schedules.

5. Power to relax

Where the Council is satisfied, on receipt of reference from the concerned Government, that special circumstances exist warranting relaxation of some of the provisions of the regulations for sometime it may grant relaxation of that provision to such extent and subject to such conditions as it may consider necessary in a just and equitable manner.

6. Interpretation

If any question arises relating to interpretation of these Regulations or equivalence of various teacher's training programmes, decision of the Council shall be final.”

Perusal of Regulation 2 shows that it is applicable for recruitment of teachers in all formal schools established, run or aided or recognised by the Central or the State Governments. Regulation 4 mandates amendment in the recruitment rules within three years to make them in conformity with the qualification prescribed under the Schedule. Regulation 5 provides about power to relax provisions and Regulation 6 provides for interpretation thus the sole authority lies with the NCTE to provide minimum qualification for appointment of teacher. The services rules have to be in conformity with the Regulations of 2001 and not de hors to it. Any repugnancy is hit by Article 254 of the Constitution of India. In the aforesaid background, Services Rules of 1971 cannot be read to the extent they are repugnant to the Regulations of 2001. For the aforesaid purpose, it would be gainful to quote section 12(d) of the NCTE Act for ready reference -

“FUNCTIONS OF THE COUNCIL

12. FUNCTIONS OF THE COUNCIL

It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may -

(a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof;

(b) make recommendations to the Central and State Government, Universities, University Grants Commission and recognised institutions in the matter of preparation of suitable plans and programmes in the field of teacher education;

(c) co-ordinate and monitor teacher education and its development in the country;

(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions;

(e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum;

(f) lay down guidelines for compliance by recognised institutions, for starting new courses or training, and for providing physical and instructional facilities, staffing pattern and staff qualification;

(g) lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses or training;

(h) lay down guidelines regarding tuition fees and other fees chargeable by recognised institutions;

(i) promote and conduct innovation and research in various areas of teacher education and disseminate the results thereof;

(j) examine and review periodically the implementation of the norms, guidelines and standards laid down by the Council, and to suitably advise the recognised institution;

(k) evolve suitable performance appraisal system, norms and mechanism for enforcing accountability on recognised institutions;

(l) formulate schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes;

(m) take all necessary steps to prevent commercialisation of teacher education; and

(n) perform such other functions as may be entrusted to it by the Central Government.”

The perusal of clause (d) reveals that NCTE is given authority to lay down minimum qualification for a person to be employed as teacher which has been prescribed by making Regulations of 2001 and they have not been challenged herein.

The amendment in the Rules of 1971 vide Notification dated 9.12.2011 is not having assent of the President of India so as to read even if it is conflict with the Regulations of 2001. The issue and authority of the NCTE has already been recognised to provide minimum qualification for appointment to the post of teacher by the Hon'ble Supreme Court in the case of “Rajesh Kumar Gupta v. State of UP”, reported as (2005) 5 SCC 172, “Yogesh Kumar v. Government of NCT Delhi, reported as (2003) 3 SCC 548 and also in the case of “ v. ”, reported as (2003) 3 SCC 541 and lastly by the Division Bench of this court in the case of “Kailash Chand Harijan v. State of Rajasthan” reported as RLR 2006 (1) 665. Para 15, 17, 19 and 23 to 25 of Kailash Chand Harijan's case are relevant thus quoted hereunder -

“15. The case of the petitioners so far as relevant is that the NCTE has framed regulations titled the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (hereinafter referred to as ‘the Regulations’) laying down the minimum qualifications for recruitment of teachers in all formal schools established, run or aided or recognized by Central in all Government and other authorities for imparting education at elementary (primary and upper primary/middle school), secondary and senior secondary stages. As per the qualifications mentioned in the First Schedule appended to the said Regulations, apart from basic academic qualification of senior secondary school certificate or intermediate or its equivalent, those having Training of a duration of not less than two years or Bachelor of Elementary Education alone are eligible for recruitment in primary schools. The scheme of training/education imparted in basic teachers' training course (BSTC) is different from the training/education imparted for Bachelor of Education (B.Ed) course and, therefore, the B.Ed Qualification cannot be treated as a substitute or a higher qualification for the purpose of eligibility for recruitment in primary schools. According to the petitioners the point is not res integra in view of the decisions of the Supreme Court in the case of (2) Yogesh Kumar v. Government of NCT Delhi, JT 2003 (2) SC 453 = (2003) 3 SCC 548, (3) P. M. Latha v. State of Kerala, JT 2003 (2) SC 423 and (4) Dilip Kumar Gosh v. Chairman, JT 2005 (8) SC 271 amongst other cases. The petitioners have brought on record the syllabi of the BSTC and B.Ed Course to highlight that the nature of BSTC training/course being entirely different, juxtaposed with B.Ed Course, only those possessing BSTC qualifications can be eligible for recruitment on the post of teachers in primary schools.

17. In view of the decisions of the Apex Court in Yogesh Kumar v. State of NCT Delhi, (2003) 3 SCC 548P.M Latha v. State of Kerala, JT 2003 (2) SC 423 and Dilip Kumar Gosh v. Chairman, JT 2005 (8) SC 271, it is well settled that B.Ed qualification cannot be treated at par with BSTC qualification for recruitment of teachers at primary school level. It is true that the NCTE Regulations provides for “minimum qualifications” and at the first instance it does appear that a higher qualification cannot be regarded as disqualification for recruitment but considering the nature of training imparted in the BSTC course the conclusion is irresistible that only BSTC trained teachers can be appointed and they alone can impart better education to students of tender age at the primary level of education. As observed in Dilip Kumar Gosh case (supra)

“In the case of junior basic training and primary teachers training certificate the emphasis is on the development of child. The primary education is upto IV standard. Thereafter there is middle education and then the secondary and higher secondary education. But in the primary school one has to study the psychology and development of child at tender age. The person who is trained in B.Ed Degree may not necessarily be equipped to understand psychology of a child at that early stage.”

“To accept a proposition that a candidate who holds a B.Ed Degree, that is, higher degree cannot be deprived appointment to the post of primary school teacher would negate the aims and objects of the rules for the purpose for which it is framed.”

19. Shri Manish Bhandari appearing for the selected candidates made an alternative argument. He submitted that even if it is held that B.Ed Teachers cannot be appointed in primary schools or primary section of the upper primary schools, in terms of regulation 4 of the Regulations, recruitment could be made within three years from coming into force of the Regulations in accordance with the existing recruitment rules without adhering to the qualifications fixed by the Regulations, and as the recruitment process commenced on 2.6.2004 i.e within three years of the coming into force of the Regulations on publication in the official gazette on 3.9.2001, the selections/appointments are not contrary to the Regulations. Thus even if the Court were to hold otherwise, on merit of the B.Ed Qualification for the purpose of appointment in primary/primary section of upper primary schools, the selection process does not warrant any interference by this Court.

23. The National Council for Teacher Education Act, 1993 under which the NCTE has been established has been enacted with a view to achieving planned and coordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith. Under Section 12 of the Act, it is the duty of the council to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and the determination and maintenance of standards of teacher education, and for the purposes of performing its functions under this Act the council may, among other things-vide clause (D) “lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognized institutions”. Section 32 of the Act confers power upon the council to make regulations not consistent with the provisions of the Act and the Rules made thereunder, generally to carry out the provisions of the Act and in particular to provide for - vide clause (d)(i) of Sub-section (2) - “the norms, guidelines and standards in respect of minimum qualifications for a person to be employed as a teacher under clause (d) of Section 12”.

24. On a conjoint reading of the above provisions, it is manifest that the council is competent to fix minimum qualifications for employment as a teacher in educational institutions covered under the NCTE Act. Reference may be made to (5) Union of India v. Shah Goverdhan L. Kabra Teachers College, JT 2000 (8) SC 269 wherein the status of the council as an expert body whose function is to maintain standard of education in relation to teachers' education was upheld and (6) Rajesh Kumar Gupta v. State of U.P(2005) 5 SCC 172, wherein the decision of the Allahabad High Court holding that Special Basic Teachers' Certificate Training Course is not the requisite qualification as it is not recognized by the NCTE Act and the Regulations framed thereunder, was upheld by the Supreme Court.

25. The binding nature of the NCTE Regulations cannot be doubted. After the 42nd Amendment in the Constitution the power to legislate on professional and technical institutions and determination of standards of education therein can be traced to entries 65 and 66 of list I of the 7th Schedule to the Constitution (See the decision in Union of India v. Shah Goverdhan L. Kabra Teachers' College, JT 2002 (8) SCC 269). By the 42 amendment, the subject of ‘education including universities’ which figured at Entry 11 in list 2 II was deleted and was substituted as Entry 25 in List III but subject to the provisions of Entries 63, 64, 65 and 66 of List I. By virtue of reallocation of power the States also have power to legislate on education, regulate the establishment and maintenance of educational institutions but in exercise of the power cannot make rules contrary to standards prescribed under the Central Legislation. The following observations in Union of India v. Shah Goverdhan L. Kabra Teachers' College are apposite “the NCTE is an expert body created under the provisions of the National Council for Teacher Education Act, 1993 and the Parliament has imposed upon such expert body the duty to maintain standards of education particularly, in relation to the teachers' education.”

The NCTE established under an Act of Parliament enacted in terms of Entries 65 and 66 of List I having fixed the norms and qualifications, it is not open to the State Government to fix any qualification contrary to those laid down by the NCTE. Indeed, as provided in Regulation 4 of the Regulations, the States are supposed to modify/frame recruitment rules in conformity with the qualifications prescribed in the Schedule. Regulation 4 runs as under:

“The existing requirement rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules. Meanwhile, teachers appointed as per the existing recruitment qualifications, subsequent to the issue of these Regulations, will be required to acquire qualifications as prescribed in the Schedules.” We have therefore, no doubt in our mind that the qualifications fixed by the State under Rule 266 of the Panchayti Raj Rules cannot govern appointment of teachers in primary/primary section of upper primary schools teachers to the extent it is contrary to the Regulations of the NCTE and the observations relied upon by the learned Advocate General lend no support to his argument.”

Paras quoted above reveal that as per the NCTE Act, 1993, authority lies with the council to provide minimum qualification for appointment to the post of teacher. Paras 23 to 25 give complete answer regarding authority of the NCTE by referring various judgments of the Supreme Court therein.

In the light of the judgments aforesaid and discussion made, amendment in the Service Rules of 1971 vide Notification dated 9.12.2011 cannot be applied being in conflict with the Regulations of 2001 thus first argument raised by learned counsel for private respondents is answered against them and in favour of the petitioners.

2. Effect of the judgment of the Supreme Court in the case of Basic Education Board, UP (supra) -

Reference of the aforesaid judgment has been given to indicate that the NCTE Act is to provide requisite qualification for appointment as teacher in training institutions only thus Regulations of 2001 should not be applied and be given precedence over the Rules of 1971.

I have considered the aforesaid argument and find that section 12 (d) of the NCTE Act needs to be reproduced again and is quoted thus -

“ “FUNCTIONS OF THE COUNCIL

12. FUNCTIONS OF THE COUNCIL

It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may -

(a) to (c) ….

(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions;”

Perusal of the provisions quoted above shows authority of the NCTE to provide minimum qualification for persons to be employed as a teacher in school or recognised institution. Regulations of 2001 were framed to provide minimum qualification for recruitment as teacher in the school. If the Regulations of 2001 are looked into, it does not talk about appointment of teacher in training school at different levels. Thus Regulations of 2001 were not brought to the notice of the Hon'ble Apex Court while arguing the case in the case of Basic Education Board (supra). It may be for the reason that controversy raised therein was in reference to the decision of the High Court at Allahabad vide its judgment dated 18.2.2000 i.e prior to the Regulations of 2001 thus effect of section 12 (d) of the NCTE Act was not an issue for consideration before the Hon'ble Apex Court.

It is settled law that statutory provision cannot be made redundant by any judgment and otherwise Regulations of 2001 were not brought to the notice of the Hon'ble Apex Court in the case of Basic Education Board (supra). It is apart from the fact that earlier judgments of the Supreme Court show sanctity of the NCTE to provide minimum qualification for appointment to the post of teacher as has been referred by the Division Bench of this court in the case of Kailash Chand Harijan (supra) while dealing with the issues in para 23 to 25 quoted above and it gives complete answer to the second issue raised.

In fact, NCTE, while framing the Regulations of 2001, issued mandate to all the State Governments to modify their service rules for recruitment of teachers in the schools. Regulations 2 to 6 of the Regulations of 2001 have already been quoted in the earlier portion of this judgment to clarify the aforesaid. Thus NCTE Act is not to provide minimum qualification of teachers in the training schools only but is for other teachers in the schools. The judgment of the Hon'ble Apex Court in the case of Basic Education Board (supra) is thus not applicable to the present case. Otherwise, the first issue decided is sufficient to show that service rules so amended in the year 2011 cannot have retrospective effect unless so provided. The second question raised by learned counsel for private respondents is again answered against them and in favour of the petitioners.

At this stage, it would also be necessary to deal with the new argument which was not even referred by the Division Bench while its judgment dated 30.3.2012 but has been raised now.

The argument is that NCTE Regulations of 2001 provide different hierarchy of PTI than given in the Service Rules of 1971.

The simple answer to the aforesaid lies under Regulation 2 to 6 of the Regulations of 2001. Regulation 2 mandates that the Regulations of 2001 would be applicable to all formal schools run by the Central or the State Governments. Regulation 3 provides for qualification for recruitment. Regulation 4 is quite important which mandates modification of qualification within a period of three years thus the State Government is under obligation to provide qualification under the service rules to make it as per the Regulations of 2001 and not in conflict thereto. The State Government should have provided hierarchy of appointment, accordingly, in any case, Schedule II appended to the Regulations of 2001 shows different level of schools which are elementary school and secondary secondary school etc. Elementary level is for PTI Gr III whereas secondary and senior secondary are taken up by PTI Gr II. The issue aforesaid has already been clarified in the judgment dated 1.2.2012 thus need not to be elaborated again. In fact, Notification dated 9.12.2011 amending Service Rules of 1971 has no application in the present matter where recruitment pertains to the advertisement of the year 2008 thus the last issue raised by learned counsel for private respondents has no merit.

In view of the discussion made above, while answering the questions raised specifically and answered above, all the writ petitions are allowed and are ordered to be governed by the earlier judgment dated 1.2.2012 apart from the present judgment thus both the judgments may be read in composite.