Ajay Rastogi, J.
1. Since all the petitions involve identical issues, hence are being disposed of together.
2. Question arising for consideration is as to whether persons holding qualification of Sr. Secondary (Vocation) from recognized Board of Education can be considered to be ineligible in absence of holding Bridge Course certificate for the purpose of their appointment of Primary/Upper Primary School Teachers after amendment being made in R. 266(3) of Rajasthan Panchayati Raj Rules, 1996, vide notification dt. 28.06.2006.
3. Necessary facts relevant for adjudication being almost common, are being taken note of CWP-7024/2007. Advertisement was issued by Rajasthan Public Service Commission ('PSC' on 30.10.2006 inviting application for appointment of Primary and Upper Primary Teachers. Petitioner (Radhe Shyam Raidas) qualified Senior Secondary (Vocational), B.A., M.A. & Diploma in Education (two years) Course from Bhopal (MP) as alleged to be equivalent to BSTC duly recognized by Rajasthan Government. Claiming himself eligible, he applied for the post in question in pursuance of advertisement dt. 30.10.2006; and appeared in written examination and his name stood at merit No. 9917, so was called for counseling at Govt. TT College, Ajmer on 3.9.2007 vide letter dt. 21.8.2007 (Ann.1) - in pursuance whereof, appered in course of counseling but the authority refused to consider on the premise that he is holding qualification of Sr. Secondary (Voc.) and even in other cases also, the PSC rejected such applicants communicating that since they have not passed Bridge Course Certificate alongwith Sr. Secondary (Voc); as such are not eligible for the posts advertised on 30.10.2006.
4. Before examining dispute any further, it would be proper to take note of Scheme of Rules, 1996 - relevant for the purpose. Service conditions of Teachers consisting recruitment in primary schools in rural area were initially governed by Rajasthan Panchayat Samiti & Zila Parishad Act, 1959 ('Act, 1959') and Service Rules, 1959 framed thereunder, while Teachers in Primary Schools in urban areas had a different cadre. The act, 1959 was replaced by Rajasthan Panchayati Raj Act, 1994 ('Act, 1994') and its Section 89 provides constitution of Rajasthan Panchayat Samiti and Zila Parishad Services which originally comprised of amongst others, Primary School Teachers as stated in Clause (iii) of Sub-section (2) of Section 89.
5. An amendment was made in regard to qualification the post of Primary School Teacher vide notification dated 7.5.98. Amendment relevant for the purpose runs ad infra:
Government of Rajasthan
Rural Dev. & Panchayat Raj. Department
(3) Primary School Teacher (100% by direct recruitment.
(i) Senior Secondary under new (10+2) or Higher Secondary under old scheme from Rajasthan Board of Secondary. Educations or equivalent and secondary school certificate from Rajasthan Board of Secondary Education or equivalent within 5 subjects, 3 of them shall be Mathematics, English & Hindi.
(ii) B.S.T.C. Course.
After amendment made on 7.5.98 (supra), at the same time, recruitment was processed while taking note of precedence laid down by this Court examining qualification of Senior Secondary (Academic) and Senior Secondary (Vocational); State Government issued circular dt. 19.8.1998 directing all Chief Executive Officers of Zila Parishad based on earlier decision of this Court as clarification holding that Senior Secondary (Voc.) is not equivalent to Senior Secondary (Academic) and are not eligible for primary school teachers.
6. Based on Circular issued by State Govt., those who applied for appointment to the post of Primary School Teachers pursuant to advertisement issued in June, 1998 for vacancy of 1998-99, applicants holding qualification of Sr. Secondary (Vocational) were not considered to be eligible for primary school teachers.
7. However, by Rajasthan Panchayati Raj (Amendment) Act, 2000, Clause (iii) was amended substituting 'primary and upper primary schools' in place of 'primary school Teacher'. Sub-section (1) of Section 89 was amended by Rajasthan Panchayati Raj (Amendment) Act, 2004, inserting a proviso providing for selection for the post specified in Clause (iii) of Sub-section (2) viz., Primary and Upper Primary School Teachers as originally provided in Sub-section (1). That apart, a new Sub-section (6A) was inserted providing for appointment of primary and upper primary school teachers by direct recruitment in accordance with rules made in that behalf by State Government out of persons selected by PSC. Section 89 of the Act, 1994 reads ad infra:
89. Constitution of Rajasthan Panchayat Samiti and Zila Parishad Service.-There shall be constituted for the State Service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and thereafter in this section referred to s the service and recruitment thereto shall be made district-wise.
Provided that the selection for the post specified in Clause (iii) of Sub-section (2) shall be made at the State level.
(2) The service may be divided into different categories, each category being divided into different grades, and shall consist of:
(i) to (ii) xxx xxx
(iii) primary and upper primary school teachers.
(iv) xxx
(3) to (6) xxx
(6A) Appointment by direct recruitment on the posts specified in Clause (iii) of Sub-section (2) shall be made by Panchayat Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts by the Rajasthan Public Service Commission in accordance with rules made by the State Government in this behalf.'
Provided that in case of the posts reserved for widows and divorcee, women, selection shall be made in such manner and by such Screening Committee as may be prescribed by the State Government.
Correspondingly, Rules, 1996 was amended vide notification dated 28.2.2004 and among other amendments, Rule 266 providing for educational qualification for recruitment on various posts adding qualification of B.Ed. (shown in italic part below) as an alternate qualification of B.S.T.C. - as originally provided. Rule 266 duly amended reads ad infra:
266. Academic qualifications.
A recruit must possess minimum qualification as under:
(1)to(2) xxx
(3) Primary School Teacher (100% by direct recruitment)
(i) Senior Secondary under new (10+2) scheme or Higher Secondary under old scheme from Rajasthan Board of Secondary Education of equivalent and secondary school certificate from Rajasthan Board of Secondary Education or equivalent with 5 subjects, 3 of them shall be mathematics, English and Hindi.
(i) B.S.T.C/B.Ed.
Provided that for appointment of widow and divorce woman on the posts of Teacher, required qualification of BSTC/B.Ed. shall be relaxed, if they are competent otherwise and they submit a bond to the effect that they will obtain the qualification of B.S.T.C/B.Ed., within a period of three years. They shall be entitled to receive leave for study to get B.S.T.C/B.Ed., qualification soon after their appointment.
8. By amendment in Section 89(2)(iii) of Panchayati Raj Act, primary and upper primary schools were clubbed as one category while at the same time, by amendment in Rule 266 of Rules, 1996, B.Ed. was brought at par with B.S.T.C. as requisite qualification for appointment in upper primary schools, whereas upper primary school comprises of two sections - primary section consisting of Class 1 to V and middle section consisting of Class VI to VIII, which is called upper primary school. But, by upgrading the school adding classes VI to VIII, it becomes upper primary school, and there is clear distinction between primary and upper primary levels.
9. However, question arose as to what will be effect of qualification laid down u/Rule 266 of Rules, 1996 if it is not in conformity with recruitment of teachers as laid down by NCTE in its Regulations, 2001, which was examined by Division Bench in Kailash Chandra Harijan v. State : 2006(4) WLC 337 : RLW 2006(2) Raj. 1700.
10. In fact, after the judgment of this Court in Kailash C. Harijan v. State (supra), State Government made amendment vide notification dt. 28.6.2006 in exercise of powers conferred by Section 102 read with Section 89 of Act, 1994 in Rule 266 substituting Clause (3) by following:
(3) Primary & Upper i) Senior Secondary School Certificate orPrimary School Intermediate or its equivalent; andTeacher (100% by ii) Diploma or certificate in basic teachersdirect recruitment). training of a duration of not less than two(a) General years OREducation Bachelor of ElementaryLevel - (i) Primary Education (B.El.Ed.)Level - (ii) Upper i) Senior Secondary School Certificate orPrimary (Middle Intermediate or its equivalent; andSchool Section) ii) Diploma or certificate in basic teacherstraining of a duration of not less than twoyears ORBachelor of ElementaryEducation (B.El.Ed.) ORGraduate with Bachelor of Education (B.Ed.)or its equivalent.(b) Special (i) Senior Secondary School Certificate orEducation Level - (I) Intermediate or its equivalent; andPrimary (ii) One year/Two years Diploma in SpecialEducation (DSE) i.e. in visualimpairment/hearing impairment/ mentallychallenged/ neurological condition dulyrecognized by the Rehabilitation Council ofIndia.(iii) Candidates shall be eligible only onregistration in the Rehabilitation Council ofIndia.Level - (ii) Upper (i) Senior Secondary School Certificate orPrimary (Middle Intermediate or its equivalent; and School Section) (ii) One year/Two years Diploma in SpecialEducation (DSE) i.e. in visualimpairment/hearing impairment/mentallychallenged/ neurological condition dulyrecognized by the Rehabilitation Council ofIndia. ORGraduate with B.Ed. in Special Education i.e.in visual impairment hearing impairment/mentallychallenged/neurological condition dulyrecognized by Rehabilitation Council ofIndia.(iii) Candidates shall be eligible only onregistration in the Rehabilitation Council ofIndia.
Amendment quoted (supra) in fact was in conformity with the recruitment qualifications for Teachers in educational institution mentioned in Section 2 of NCTE Regulations, 2001. After amendment was made (supra), State Government issued advertisement dt. 30.10.2006 for holding selections for primary and upper Primary Teachers through PSC, in which petitioners herein appeared in written examination but the PSC has finally rejected their candidature on the premise that as they have not passed out their Senior Secondary (Vo.) with Bridge Course; as such are not eligible for the post of primary and Upper Primary School Teacher in pursuance to advertisement dt. 30.10.2006, giving rise to instant petitions.
11. Counsel for petitioners submits that after the amendment made in Clause (3) of Rule 266 of Rules, 1996, no distinction has been made between Senior Secondary whether academic or vocational; and despite judgment of this Court rendered while examining amendment in recruitment qualifications dt. 7.5.1998 and clarification made vide Circular dt. 19.8.1998 issued by State Government, if at all, Rules making authority intended to eliminate those holding Senior Secondary (Voc.) for appointment as Primary/Upper Primary School Teacher, certainly it could have been taken note of while making amendment in Clause (3) of Rule 266 of Rules, 1996 while issuing notification dt. 28.6.2006; as such decision taken by the PSC rejecting their candidature out rightly without there being any directives from State Government or from NCTE, which regulates recruitment qualification for appointment as Teachers in educational institutions as mentioned in Section 2 of its Regulations, 2001; Is uncalled for and violative of Article 14 of the Constitution.
12. Counsel further submits that those who are holder of Sr. Secondary School Certificate irrespective of stream whether academic or vocational, both are eligible to undertake diploma or certificate in Basic School Teacher Training or elementary Teachers Training, which is under control and regulated by he State Government having no such pre-condition that Sr. Secondary (Academic) alone will be considered to be eligible; and that apart, there is no distinction between academic or vocational for holding higher qualification viz., Under-graduate/Bachelor degree of Education from a recognized University.
13. Counsel further submits that most of petitioners herein did their under-graduate decree course from University established by law and did their
B.Ed., and in such circumstances, how far Senior Secondary (Voc.) can still be considered as disqualification under existing scheme of Rules, 1996 holding them ineligible in terms of amendment made vide notification dt. 28.6.2006 particularly when there are no directives/Circular/guidelines issued from NCTE, moreso, when amendment has been made u/Rule 266(3) of Rules, 1996 in consonance with NCTE Regulations, 2001.
14. Respondent State and the PSC have filed reply to some of petitions. It is sorry to say that State Government is not even aware of the amendment made vide notification dt. 28.6.2006 and it appears that in the reply to some of petitions, reference has been made to the pre-amended situation, existing prior to notification dt. 28.6.2006. However, only objection raised by State Government in its reply is that Senior Secondary (Voc.) is not equivalent to Senior Secondary (Academic) and, therefore, petitioners are not eligible for consideration for appointment as Teachers. Same stand has been taken by the PSC. Counsel submits that as regards Sr. Secondary (Voc. & Academic), this Court has examined the issue and finally upheld that Sr. Secondary (Academic) is not equivalent to Sr. Secondary (Voc); as such holders of Sr. Secondary (Voc.) are not eligible for appointment as Primary School Teachers, now called as Primary and Upper Primary School Teachers after amendment dt. 28.6.2006; as such no error has been committed in rejecting candidatures of such applicants.
15. Counsel further submits that even if applicants acquired higher education with B.Ed., as they are lacking qualification of Senior Secondary (Academic), still they cannot be considered to be eligible in terms of advertisement.
16. I have heard Counsel for the parties and with their assistance, examined material on record. National Council for Teaching Education is parent statutory body being established under NCTE Act, 1993 having fixed norms and qualifications, with a view to achieving planned and co-ordinate development, regulation and proper maintenance of norms and standards in Teacher Education System.
17. However, vide Clause (d) of Section 12 of NCTE Act, the NCTE has laid down guidelines in respect of minimum qualifications for a Teacher in schools or in recognized institutions. Section 32 of NCTE Act confers power upon he Council to make regulations not inconsistent with the Act and rules made thereunder to carry out its provisions and in particular to provide for - Under Clause (d)(i) of Sub-section (2) - 'norms, guidelines and standards in respect of minimum qualifications for a Teacher Under Clause (d) of Section 12. But, as provided in Regulation 4 of Regulations framed under NCTE Act, the States are supposed to modify/frame recruitment rules in conformity with qualifications prescribed in schedule. Regulation 4 runs ad infra:
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 the teachers appointed as per existing recruitment qualifications, subsequent to the issue of these Regulations, will be required to acquire qualifications as prescribed in the Schedules.
NCTE framed regulations viz., NCTE (Determination of Minimum qualifications for recruitment of Teachers in Schools) Regulations, 2001 laying down minimum qualifications 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 elementary (primary and upper primary/middle school), secondary and senior secondary stages.
18. NCTE alone is competent to fix minimum qualification for appointment for imparting education covered under NCTE Act and it being expert body, its function is to maintain standard of education in relation to teachers' education, and the State Government is under obligation to lay down qualification in conformity with qualification prescribed by NCTE and its Regulations, 2001 and according to the recruitment qualifications for Teachers in educational institutions laid down by NCTE - in its consonance, State Government after judgment in Kailash Harijan v. State (supra) made amendment Under Rule 266(3) of Rules, 1996 vide its notification dated 28.6.2006.
19. As regards binding effect of NCTE Regulations, 2001, it has been examined by this Court observing that qualifications fixed by State Government u/Rule 266 of Rules, 1996, which governs appointment of Primary/Upper Primary School Teachers can in no manner be made in contrary to the NCTE Regulations.:
25. ...The binding nature of the NCTE Regulations cannot be doubted. After the 42nd Amendment in the Constitution the power of legislate on professional and technical institutions and determination of standards of education therein can be treated to entries 65 and 66 of List 1 of the 7th Schedule to the Constitution. (See decision in Union of India v. Shah Goverdhan L. Kabra Teachers College : JT 2002(8) SC 269 : RLW 2003(2) SC 177). By the 42nd amendment the subject of 'education including universities' which figures at Entry 1 in List II was deleted and substituted as Entry 25 in List III but subject to provisions of entries 63, 64, 65 and 66 of List I. By virtue of re-allocation of power the States also have power to legislate on education, regulate the establishments and maintenance of educational institutions but in exercise of the power cannot make rules contrary to standards prescribed under the Central legislation...'.We have therefore, no doubt in our mind that the qualifications fixed by the State under Rule 266 of the Panchayati 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 argument.
As per qualifications mentioned in First Schedule to NCTE Regulations, apart from basic academic qualification of senior secondary school certificate or intermediate or its equivalent, those having professional qualification of diploma or certificate in Basic Teachers' Training of a duration of not less than two years or Bachelor of elementary Education alone are eligible for recruitment in primary schools.
20. It has further been examined that at the level of upper primary school teacher, holder of degree of graduation with B.Ed. or its equivalence has also been made eligible, which certainly applies to Special Education for primary and upper primary school teachers also irrespective of the fact that applicants are qualified of Senior Secondary (Academic/Vocational) if brought at par with qualification of Teacher - B.Ed., as well, there will be no justification atleast to make them ineligible from participation in process of selection for the posts of Upper Primary School Teacher.
21. It is true that word, 'or' has been used in Clause (3) of upper primary middle school section but at the same time, Senior Secondary School or intermediate or its equivalent or graduation are the minimum qualifications. A conjoint reading of Clause (3)(a)(i) and 00 dealing with General education Level at (i0 primary and (ii) Upper Primary (middle School Section), or at the same time, (b) Special Education level (i) Primary and (ii) Upper Primary (Middle School Section), those who are graduate with Bachelor of Education or its equivalent or have qualified in Diploma or certificate in basic teachers training of a duration of not less than two years or Bachelor of Elementary Education in no manner can be considered to be in-eligible for upper primary school Teachers.
22. It is not the case of respondents that the NCTE being statutory expert body constituted and having fixed norms and qualification for recruitment of Teachers in educational institution under Clause (d) Section 12 of the Act and Regulations 2001, has ever issued any circular/directives to the State Govt. or to recruiting agency in making distinction amongst applicants having qualification of Senior Secondary (Academic/Vocational) as condition of their eligibility for recruitment to the posts in question.
23. If parent authority (NCTE) has not made any distinction between two streams (Academic/Vocational), State Government or its recruiting agency is not competent enough to make distinction between Senior Secondary (Academic/Vocational) of its own and take decision that holders of Senior Secondary (Vocational) are not eligible. To be more specific, once State Government has made amendment vide notification dated 28.6.2006 in conformity with the recruitment qualifications issued by NCTE under its Regulations, 2001 after this Court has upheld vide judgment in Kailash Chand Harijan v. State (supra) that State Government is under obligation to lay down qualifications in conformity with NCTE regulations and in absence of any guidelines or circular issued by NCTE very decision which State Government has now taken in holding Senior Secondary (Vocational0 to be ineligible in the facts of instant case is not legally sustainable.
24. This Court in State v. M.K. Jhajharia (supra) vide judgment dated 7.5.1999, has taken note of certain earlier judgments wherein it had been observed that Senior Secondary (Academic is not equivalent to Senior Secondary (Vocational) and also observed ad infra:
(24) ...That is, by the impugned circular dated 19.8.1998, the prescribed qualification is not sought to be altered or amend. But it is only intended to clarify the position in the larger public interest having regard to the judgments of this Court on the issue. Hence, it cannot be said that the impugned Circular is either violative of Article 14 and 16 of the Constitution of India or arbitrary. On the other hand, it is consistent with pronouncements of the Division Bench of this Court referred to above. In our opinion, with all respect, the learned Single Judge was not right in quashing the impugned Circular dated 19.8.1998. Hence, we are unable to sustain the common judgment under appeals.
However, at the same time, this Court further examined in latter judgment in Panna Lal Joshi v. State jt 2006 (6) (SC) 3458 based on the decision of Supreme Court in Sunita Sharma v. State jt 2001 (10) (SC) 178 holding that Senior Secondary (Vocational) examination as equivalent to the Senior Secondary (Academic) examination. Counsel for parties at the Bar submits that earlier decisions were not considered in latter decision of Division Bench of this Court in Panna Lal Joshi v. State (supra).
25. Be that as it may, in instant case, judgment referred to by either of the parties are of no assistance for the reason that the issue examined by this Court in earlier decision (supra) were in relation to qualifications laid down by State u/Rule 266 of Rules, 1996 prior to taking note of qualifications laid down by NCTE Regulations, 2001 and the State Government took its decision making out distinction between Sr. Secondary (Academic/Vocational). However, once it has been held by this Court in Kailash Harijan v. State (supra) observing that it is the NCTE being expert body created under NCTE Act, 1993, which alone holds to maintain standard of education particularly teaching education and the State Government is under obligation to frame its Rules in conformity with qualifications for Teachers in educational institutions, according to which State Government has made amendment u/Rule 266 of Rules, 1996 vide notification dated 28.6.2006 and thus, in the absence of guidelines/directives of the NCTE, making distinction between qualification of Senior Secondary (Academic/Vocational) atleast after amendment dated 28.6.2006 holding Senior Secondary (Vocational) to be ineligible, deserves rejection.
26. It has been brought to the notice of this Court that there is no such Bridge Course available or conducted by Board of Secondary Education, Rajasthan or by State Government. As noticed at one point of time, when judgments were pronounced by this Court as per qualification laid down by State Government for primary school teachers holding Senior Secondary (Voc.) are not eligible, bridge course was introduced as one time measure and those who did their Bridge Course, they were appointed by State Government. However, there is no such provision of bridge course being prevalent which can be acquired by Senior Secondary (Voc.) at this stage.
27. As observed (supra), it looses is legal sanctity also after amendment made under Rule 266 of Rules, 1996 vide notification dated 28.6.2006 when appointments are made through open selection while holding written examination through the PSC where every one gets an opportunity to compete on the face of open recruitment test. This can be a reason for which parent authority (NCTE) has not made any distinction between qualification acquired of Senior Secondary (Academic/Vocational) and considered Senior Secondary School certificate or intermediate or its equivalent as eligible for participation in process of selection for appointment as Primary/Upper Primary School Teachers.
28. In the facts of instant case, this Court is of he opinion that since NCTE alone holds competence and in absence of guidelines or directives from NCTE, decision impugned taken by respondents in denying consideration to such candidates holding Senior Secondary (Voc.) as ineligible in no manner can be said to be in consonance with existing Scheme of Rules, 1996 particularly in terms of amendment dated 28.6.2006 and such action of the respondent deserves to be set aside.
29. Consequently, all the petitions succeed and are hereby allowed. The decision taken by respondents holding petitioners ineligible on the premise of their qualification of Senior Secondary (Vocational) without Bridge Course, is hereby quashed and set aside. Respondents are directed to consider petitioners who hold qualification of Senior Secondary (Vocational) as eligible for the posts of Primary/Upper Primary School Teachers and consider their candidatures for appointment based on their participation having taken place in pursuance of advertisement dated 30.10.2006 and if their names find place in order of merit in respective category, they may be considered and if found suitable, be appointed, however, they will be entitled for seniority, notional fixation etc., and all other service benefits but will not be entitled for salary for the intervening period during which they did not actually work.
30. All exercise be completed to comply with directions (supra) within three months from today. No order as to costs.