1. The appellants approached this Court by filing Writ Petition (SS) No. 95 of 2009 so as to claim eligibility for appointment against the post of L.T. Grade Teacher in Physical Education by way of direct recruitment. In this behalf, it would be pertinent to mention that 70 posts of L.T. Grade Teacher in Physical Education were advertised on 17.6.2002 for Kumaon Mandal. Subsequently, 25 more posts for L.T. Grade Teacher in Physical Education were advertised on 20.10.2004 again for the Kumaon Mandal. Thereafter, 46 further posts of L.T. Grade Teacher for Physical Education were advertised on 4.11.2009 for Garhwal Mandal. The appellants had responded to the aforesaid advertisements, but their candidatures were not being considered. It is in the aforesaid circumstances that the appellants had approached this Court by filing the aforesaid writ petition seeking consideration in the selection process.
2. It is not a matter of dispute that the advertisements, referred to in the foregoing paragraph, stipulated the following qualifications for eligibility:
Bachelor degree from a recognized university or a degree recognized by the Government as equivalent thereto, and diploma in physical education.
A perusal of the eligibility conditions reveal, that the aspiring candidates were required to possess two qualifications. Firstly, a Bachelor's degree from a recognized University or a Bachelor's degree recognized by the Government as equivalent; and secondly, the qualification of Diploma in Physical Education.
3. All the appellants, who had approached this Court by filing Writ Petition (SS) No. 95 of 2009 factually possessed a valid Bachelor's degree from a recognized University. As such, it is not the subject matter for consideration at our hands, whether or not the appellants fulfilled the first qualification noticed in the foregoing paragraph. The dispute pertains to the second qualification required for eligibility, namely, the qualification of Diploma in Physical Education. Admittedly, none of the appellants, who had approached this Court by filing Writ Petition (SS) No. 95 of 2009 possessed the qualification of Diploma in Physical Education, when they responded to the three advertisements, referred to in the opening paragraph of the instant order. It is therefore, that none of them were treated as eligible for the advertised posts. As such, none of them were invited to participate in the process of selection.
4. During the pendency of Writ Petition (SS) No. 95 of 2009, the petitioners filed an Interim Relief Application bearing No. 778 of 2009. The prayer made by the petitioners was for extension of the interim order passed on 6.7.2009. By the aforesaid interim order, this Court had directed that no appointments would be made in furtherance of the advertisements referred to hereinabove. By an order dated 8.12.2009, this Court declined to extend the aforesaid interim order. This Court, however, passed an order that appointments, if any, (made in furtherance of the advertisements referred to hereinabove) against the post of L.T. Grade Teacher in Physical Education would be subject to the decision of the main case (i.e. Writ Petition (SS) No. 95 of 2009).
5. The appellants herein, who had approached this Court by filing Writ Petition (SS) No. 95 of 2009 have preferred the instant Special Appeal so as to assail the order dated 8.12.2009.
6. Before us, it is the case of the appellants that they are eligible for appointment against the advertised posts of L.T. Grade Teacher in Physical Education. The instant assertion has been made at the hands of the appellants, despite the fact that they do not possess the qualification of Diploma in Physical Education. All the same, they contend that they possess a higher qualification i.e. a Degree in Physical Education, and based on the principle that higher qualification presupposes the lower qualification, they submit that they shall be deemed to be eligible. In order to substantiate the claim of the appellants, learned Counsel for the appellants has placed reliance on the decision rendered in Jyoti K.K. and Ors. v. Kerla Public Service Commission and Ors. JT 2002 (Supp 1) SC 85, and pointed attention of this Court was invited to the conclusion recorded by the Court in paragraph 9 of the aforesaid judgment. Paragraph 9 is being extracted hereunder:
9. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. Under the relevant rules, for the post of assistant engineer, degree in electrical engineering of Kerala University or other equivalent qualification recognized or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of sub-engineer. In that view of the matter the qualification of degree in electrical engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. In the event the government is of the view that only diploma holders should have applied to post of sub-engineers but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree holder shall not be eligible to apply for such post. When that position is not clear but on the other hand rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes clear that the rule could be understood in an appropriate manner as stated above. In that view of the matter the order of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory rules have been published and those rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such rules or make himself aware of the rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of appellants would amount to fraud on the public.
7. Based on the observations recorded by the Supreme Court in Jyoti K.K.'s case (supra), it is the contention of the learned Counsel for the appellants, that all the appellants possess the Bachelor's degree in Physical Education. It is the submission of the learned Counsel for the appellants that Bachelor's degree in Physical Education is a higher qualification in the same stream as Diploma in Physical Education, and as such, the appellants should be treated as eligible for appointment to the advertised posts of L.T. Grade Teacher in Physical Education.
8. As against the contention advanced by the learned Counsel for the appellants, it is the submission of the learned Counsel for the State of Uttarakhand, that the appellants do not admittedly possess one of the essential advertised qualifications, namely, the qualification of Diploma in Physical Education, and as such, the appellants cannot be treated as eligible for appointment to the advertised posts of L.T. Grade Teacher in Physical Education. To substantiate his instant contention, learned Counsel for the respondents has placed reliance on the judgment rendered in P.M. Latha and Anr. v. State of Kerala and Ors. : (2003) 3 SCC 541. Emphatic reliance was placed by learned Counsel for the respondents on the following observations recorded in P.M. Latha's case (supra):
10. We find absolutely no forcer in the argument advanced by the respondents that BEd qualification is a higher qualification than TTC and therefore, the BEd candidates should be held to be eligible to compete for the post. On behalf of the appellants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in primary classes whereas for Bed degree, the training imparted is to teach students of classes above primary. BEd degree- holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or BEd qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only TTC and not BEd. Whether BEd qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider BEd candidates, for the present vacancies advertised, as eligible.
Based on the aforesaid observations of the Court, it is the submission of the learned Counsel for the respondents that just like in P.M. Latha's case (supra), the appellants do not possess one of the essential qualifications depicted in the advertisement, and as such, cannot be considered for appointment to the posts of L.T. Grade Teacher in Physical Education.
9. We have given our thoughtful consideration to the rival contentions advanced before us by the learned Counsel for the parties. Although the judgments relied upon by the learned Counsel for the respondents seem to express contrary views, on a closure examination of the same, we are satisfied that each of the judgments represents a different situation. In the judgment relied upon by the learned Counsel for the respondents, namely, P.M. Latha's case, the observations of the Supreme Court (extracted hereinabove) reveal that the possession of the B.Ed. qualification (possessed by the petitioners therein) was treated as unacceptable because the same was not a suitable qualification for the advertised posts. TTC i.e., the advertised qualification was considered as the only suitable qualification because it was a specialised qualification for teaching small children in primary classes. In other words, even though the qualification possessed by the appellants was higher, yet it was a qualification which could not be treated as in the same stream (as TTC) because B.Ed. was not a specialised qualification for teaching small children in primary classes.
10. Insofar as the present controversy is concerned, it is not the case of the respondents, either in the counter affidavit or during the course of hearing, that the qualification of Bachelor's degree in Physical Education, possessed by the appellants is a qualification, in a different stream than that of Diploma in Physical Education. It is also not the case of the respondents that the qualification of Bachelor's degree in Physical Education is irrelevant/unsuitable for the post of L.T. Grade Teacher in Physical Education. Additionally, it is not disputed by the respondents that the qualification of Bachelor's degree in Physical Education is a higher qualification in the same stream as Diploma in Physical Education. Insofar as the instant issue is concerned, it is necessary also to notice the observations made by the learned Single Judge in the impugned order dated 8.12.2009, wherein it has been emphasised that although in the advertisements (which are subject matter of consideration in the present controversy) did not specify the qualification of B.P.Ed. as a necessary qualification, yet B.P.Ed. was recognized by the National Council for Teacher Education in 2006 as a valid qualification for appointment to the post of L.T. Grade Teacher in Physical Education. It is also acknowledged that for posts of LT Grade Teacher in Physical Education advertised after 2006, the qualification of Bachelor's in Physical Education was mentioned. The amendment of the 1983 Rules by the 2006 Rules clearly demonstrates that Bachelor in Physical Education is not an unsuitable qualification for appointment to the post of L.T. Grade Teacher in Physical Education. Thus viewed, the judgment relied upon by the learned Counsel for the respondents in P.M. Latha's case, in our view, will not be attracted for the determination in the present controversy.
11. Insofar as Jyoti K.K.'s case (supra) is concerned, the extracted portion of the judgment reproduced above (as has been relied upon by the learned Counsel for the appellants) leaves no room for doubt that if a candidate does not possess the prescribed qualification, but possesses a higher qualification in the same stream, he has to be treated as eligible. Based on the judgment rendered in P.M. Latha's case, we may add one further precondition to the same, namely, that the higher qualification should neither be irrelevant or unsuitable for the advertised post. Since it is not the case of the respondents that the qualification of Bachelor's Degree in Physical Education is not an irrelevant / unsuitable qualification for appointment to the post of L.T. Grade Teachers in Physical Education, but on the contrary, the said qualification has been accepted as a valid qualification for appointment to the advertised posts in the revised Rules of 2006, we are satisfied that the same cannot be a treated as irrelevant / unsuitable for appointment to the post of L.T. Grade Teachers in Physical Education. By holding that the Degree holders in Physical Education are eligible, this Court is not granting any kind of equivalence to any degree, rather it is merely inferring a logical proposition i.e., that the possession of the higher qualification also presupposes the possession of the lower qualification, if the two are in the same stream. Therefore, since the appellants have a higher qualification in the same stream as the prescribed qualification, in terms of the judgment rendered by the Apex Court in Jyoti K.K.'s case (supra), they are liable to be treated as eligible for consideration / appointment against the advertised posts of L.T. Grade Teachers in Physical Education. Ordered accordingly.
12. Since the entire controversy, sought to be settled through Writ Petition (S/S) No. 95 of 2009, has been adjudicated upon by us through the instant order, we are of the view that Writ Petition (S/S) No. 95 of 2009 also deserves to be disposed of in terms of the conclusion recorded by us hereinabove. The aforesaid writ petition, with the consent of the learned Counsel for the parties, is hereby accordingly taken up for final disposal today itself. The aforesaid writ petition is hereby allowed. The petitioners in Writ Petition (S/S) No. 95 of 2009 shall be treated as eligible for consideration against the advertised posts of L.T. Grade Teacher in Physical Education. The respondents are, therefore, directed to consider the petitioners in the process of selection for the post of LT Grade Teacher in Physical Education in response to the advertisements referred to in the opening paragraphs of this order.
13. Disposed of in the aforesaid terms.