Permod Kohli, J.
1. Petitioner was appointed as Teacher under Madarsa Rahmania, Sunderchak in the district of Godda by the Managing Committee of the School. This School later came to be affiliated to Bihar Madarsa Education Board, Patna w.e.f. 30.1.1990. It is alleged that while working as a Teacher he was sent for in service Teachers Training by the District Education Officer, Godda under the direction of Director, Primary Education & Special Secretary, Bihar and was deputed in Government Primary Teachers Training College, Gumma, Godda. On completion of the training, he appeared in the Teachers Training Examination conducted by Jharkhand Secondary Examination Board, Ranchi and was declared successful in the said Examination conducted for the session 1998-1999. Jharkhand Public Service Commission, Ranchi invited applications for the post of Primary Trained Teachers under the District Cade vide its advertisement in the Newspaper dated 29.8.2002. As many as 579 vacancies were notified for Primary Trained Teachers for the district of Godda. Petitioner claiming to be qualified and eligible applied in response to the said advertisement. Jharkhand Public Service Commission published the result of Primary Trained Teachers Recruitment Examination, 2002 in Hindustan Times Hindi edition dated 13.11.2003. Petitioner was declared successful under Roll No. 050509101311. Commission made recommendations to the Deputy Commissioner and the District Superintendent of Education, Godda. There were as many as 256 candidates in. the unreserved category and petitioner's name figured at Sl. No. 194. On receipt of the recommendations from Jharkhand Public Service Commission, District Superintendent of Education, Godda issued a notice to the successful candidates for verification of their educational and training certificates on 19.11.2003. Petitioner appeared in the office of the District Superintendent of Education, Godda with all his testimonials. After verification appointment letters were issued in respect to 95 candidates but petitioner's name did not figure in the said appointment list. It is stated that on enquiry from the office of District Superintendent of Education, Godda, petitioner came to know that he has not been appointed in view of his one year in service Teachers Training. Petitioner has accordingly approached this Court seeking a direction for appointment to the post of Primary Trained Teacher on the basis of selection made by the Jharkhand Public Service Commission. Petitioner has raised following contentions:
(i) that he was deputed for in service Teachers Training of one year by the District Education Officer, Godda under the direction of Director, Primary Education & Special Secretary, Bihar, which he successfully completed and (ii) that NCTE has issued regulations, 2001 which permit appointment on the basis of one-year training in the concerned State.
2. In the supplementary affidavit, petitioner has also claimed discrimination. It is mentioned that District Superintendent of Education, Pakur vide Memo No. 161 dated 3.2.2004 has issued appointment letters of 96 candidates. Out of these 96 candidates, two candidates, namely, Md. Anjarul Haque and Md. Afsarul Haque received one-year Teachers Training from Government Teachers Training College and as such the case of the petitioner is similar to these two candidates. He thus claims parity.
3. Respondent-State while disputing the right and claim of the petitioner for appointment to the post of Teacher has stated that recruitment to the post of Primary Trained Teachers was made on the basis of Jharkhand Elementary School Appointment Rules, 2002 which, inter alia, provide following definition of 'Trained Teacher':
(a) having two years training,
(b) B.Ed./Dip-in-Ed./Dip-inTeach.
(c) C.P.Ed./Dip-P-Ed.
4. It is stated that one year Training undergone by the petitioner was only for in service Teachers and such one year Training is not valid for fresh appointment. It. is further mentioned that petitioner was deputed for one year in-service Training by Smt. Anjla Hansda, the then District Education Officer, Godda in the year 1999 in violation of the guidelines and disciplinary proceedings have been initiated against the said officer for various charges. One of the charge in the departmental proceeding is with respect to sending teachers for training programme in illegal and irregular manner. Apart from above, it is mentioned that the Government Primary Teachers Training College, Gumma, Godda wherefrom petitioner has obtained the certificate was not recognized by the NCTE. Hence, Training certificate is not valid.
5. It is not in dispute that advertisement notification was issued by the JPSC and the Jharkhand Elementary School Appointment Rules, 2002 provide minimum two years Training for appointment to the post of Primary Trained Teachers in Government Schools. Petitioner has relied upon the regulations framed by the NCTE. I have perused the NCTE regulations as notified vide notification No. 238 dated 4th September, 2001. It is relevant to notice the regulations:
LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONSI Elementary a. Primary Senior Secondary School certificate Or Intermediateor its equivalent; andii. Diploma or certificate in basic teachers' trainingof a duration of not less than two years OR Bachelor of Elementary Education (D.El.Ed.)i. Senior Secondary School certificate or Intermediate or its equivalent; andii. Diploma or certificate in elementary teacherstraining of a duration of not less than two years. Note:
1. For appointment of teachers for primary classes, basic teachers' training programme of 2 years' duration is required. B.Ed, is not a substitute for basic teachers' training programme.
2. Some of the States are having basic teachers' training courses of one year duration only, while in some other States students passing secondary level examination are admitted to primary level teacher training courses. Such States may, by 2005, conduct basic teachers' training 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 basic teachers' training courses of one year duration or were admitted to such training programmes after passing secondary level examination only may be given employment in the concerned States only.
6. It is pertinent to note that even under NCTE regulations minimum two years' training is required for Primary Trained Teachers. It is only in the note-2 appended to the aforesaid regulations which provide that some of the States are having basic teachers' training courses of one year duration. Such States are required to conduct basic teachers' training programmes of a duration of not less than two years by 2005 and in the meanwhile candidates who have undergone basic teachers' training courses of one year duration or were admitted to such training programmes after passing secondary level examination only may be given employment in the concerned States only. At the first place, NCTE regulations do not provide one year duration training for appointment.
7. The note appended only gives discretion to the concerned States to give employment with one year duration training in the concerned State. The note cannot override the regulations or statutory rules framed by the State providing two years' teachers' training for appointment to the post of Primary Trained Teachers.
8. I am also in agreement with the contention of the State that in-service Training undergone by the petitioner is no substitute for two years training as required under rules for fresh appointment. As far the regulations framed under NCTE are concerned, these are statutory in nature so is the position with the Recruitment Rules framed under Article 309 of the Constitution of India. However, both the rules are framed under different jurisdictions. Regulations framed under NCTE Act acquires status of delegated legislation having been framed in exercise of power conferred by the legislature whereas other rules under Article 309 are transitory in nature and cannot be said to be a delegated legislation even though both the rules are framed by the Government. In the event of conflict the rules framed in exercise of power under the Act of the legislature will prevail over the rules framed under Article 309. Hon'ble Supreme Court in case of A.B. Krishna and Ors. v. State of Karnataka and Ors. reported in : [1998]1SCR157 held as under:
9. It is no doubt true that the Rule-making authority under Article 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise, Governor, under Article 309 and Govt. under Section 39), but the two jurisdictions are different. As has been seen above; power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, Rules can be made under the Law so made by the legislature and not under Article 309, it has also to be noticed that Rules made in exercise of the rule-making power given under an Act constitute Delegated or Subordinate legislation, but the Rules under Article 309 cannot be treated to fall in that category and, therefore, on the principle of 'occupied field', the Rules under Article 309 cannot supersede the Rules made by the legislature.
9. In the light of the aforesaid dictum of the Apex Court, the question arises whether there is any conflict between the regulations framed under NCTE Act and the Recruitment Rules framed by the State under Article 309 of the Constitution of India. As far the body of the regulations framed under NCTE Act is concerned, the regulations provide two years' training course for appointment to the post of Primary Trained Teachers and so is the position under the Recruitment Rules framed under Article 309. There is no conflict. Reliance is placed by the learned Counsel appearing for the petitioner on the note-2 appended to the regulations. It is settled law that a note appended to any provisions of law cannot override the substantive rule or law. As far the question of discrimination as projected in the supplementary affidavit is concerned, no material has been brought on record to establish that those two candidates though selected in different district were having only one year in service Training. Assuming the allegations are correct, one wrong cannot be allowed to perpetuate. Concept of equality enshrined under Article 14 is a positive feature and cannot be used in negation of its spirit. No parity can be drawn with illegal actions in view of my findings that one year in service Training, is not valid for appointment to the post in question. In view of the above, I do not find any merit in this petition which is accordingly dismissed.