Committee of Management, Sri Bajrani Uchchattar Madhyamik Vidyalaya and anr. Vs. State of U.P. and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - 1. committee of management of the institution as well as senior most teacher of the institution have approached this court questioning the validity of selection and appointment of devendra kumar tripathi as headmaster of sri bajranj uchchattar madhyamaik vidyalaya, azamgarh. (b) he is recommended for such appointment by the selection committee. --appointment by the management (1) on receipt of communication of approval or as the case may be, on the expiry of the period of one month under clause (iii) of sub-rule (5) of rule 15, the management shall first offer appointment to the candidate given the first preference by the selection committee and, on his failure to joint the post, the candidate next to him in the list prepared by the selection committee and on the failure of such candidates also, to the last candidate mentioned in such list. (b) the appointment letter shall clearly specify the name of post, the pay scale and the nature of appointment, whether permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appointment letter, his appointment shall be cancelled. at the point of time when approval is to be accorded, then authorities entrusted with the task of according approval has to be satisfy himself in terms of sub-rule 5 of rule 10 to ensure that candidate recommended by selection committee possess minimum qualification prescribed for the post. tripathi does not possess requisite minimum trainman teacher course as such he is ineligible to the appointed as head master in recognized junior high school and as such appointment of devendra kumar tripathi is clearly dehors the rule and writ of mandamus cannot be issued for ensuring payment of salary to an incumbent whose appointment is void on the face of it, as he lacks minimum qualification. teachers training certificate could be treated to be minimum qualification for appointment on the post of head master of a recognized junior high school as envisaged by rule 4 (2) (b) of the rules, 1978. for better understanding of the dispute rule 4 of the rules, 1978 is extracted below :minimum qualifications. a like similar, of the like kind. thus on these principle, it is well settled that b. qualification, although a well-recognized qualification in the field of teaching and education being not prescribed in the advertisement, only some of the b. candidates, we cannot allow a patent illegality to continue, the recruitment authorities were well aware that candidates with qualification of t. we fail to understand that having thus upheld the decision of the learned single judge what was the justification for the division bench to refer to statutory recruitment rules applicable to teachers in private primary school, aided by the government and the judgments rendered by the high court in their cases, for reversing the judgment of the single judge and maintaining the rank list including names of the b. candidates and would have secured a better position in the rank list to get appointment against the available vacancies, had b. holders as well as b.v.k. shukla, j. 1. committee of management of the institution as well as senior most teacher of the institution have approached this court questioning the validity of selection and appointment of devendra kumar tripathi as headmaster of sri bajranj uchchattar madhyamaik vidyalaya, azamgarh.2. in both the writ petitions, principal ground on which selection and appointment of headmaster has been questioned is that incumbent in question does not fulfill requisite minimum eligibility criteria as is provided under rules 4 and 5 of recognized basic school (junior high school) (recruitment and condition of services of teachers) rules, 1978, as devendra kumar tripathi does not have to his credit any one of the training qualification as in envisaged rules 4 and 5 of the aforesaid rules and rather he has to his credit b.ed. degree, which is not one of the recognized training qualification.3. in order to appreciate respective contention of the patties rules 4 and 5 of recognized basic school (junior high school) (recruitment and condition of services of teachers) rules, 1978.''4. minimum qualification.--(1) the minimum qualifications for the post of clerk shall be intermediate examination of the board of high school and intermediate education, uttar pradesh, or equivalent examination (with hindi) and a minimum speed of 30 words per minute in hindi typewriting.(2) the minimum qualification for the post of group 'd' employee shall be class v from an institution recognised by the government of uttar pradesh or equivalent examination with hindi.5. eligibility of appointment.--no person shall be appointed as clerk or group 'd' employee in substantial capacity in any recognised school unless : (a) he possesses the minimum qualifications prescribed for such post;(b) he is recommended for such appointment by the selection committee. 16. appointment.--appointment by the management (1) on receipt of communication of approval or as the case may be, on the expiry of the period of one month under clause (iii) of sub-rule (5) of rule 15, the management shall first offer appointment to the candidate given the first preference by the selection committee and, on his failure to joint the post, the candidate next to him in the list prepared by the selection committee and on the failure of such candidates also, to the last candidate mentioned in such list.(2) (a) the appointment letter shall be sent under the signature of the manager, by registered post to the selected candidate.(b) the appointment letter shall clearly specify the name of post, the pay scale and the nature of appointment, whether permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appointment letter, his appointment shall be cancelled.(c) a copy of the appointment letter shall also be sent to the district basic education officer.'4. perusal of the aforementioned rules would go to show that minimum qualification for the post of assistant teacher of recognized school has been provided to the intermediate examination of the board of high school and intermediate examination, u.p. or equivalent examination with hindi and teacher training course recognized by the state government or the board such as hindustani teaching certificate, junior teaching certificate, basic junior certificate or certificate of training. rule 5 is categorical, that no person shall be appointed as headmaster or assistant teacher in the substantive capacity in any recognized school unless the possesses minimum qualification prescribed for such post.5. b.ed. is not at all one of the recognized teacher trailing course recognized by the state government or the board for the purposes of offering appointment in the institution in question as defined under 1978 rules. certificate, which are recognized have been described as hindustani teaching certificate, junior teaching certificate, basic teaching certificate or certificate of training. devendra kumar tripathi in the present writ petition does not possess either of these teaching certificate nor does he has to his credit teachers training course recognized by the state government for the purposes of being appointed in the institution recognized under 1978 rules. approval letter, which has been appended along with writ petition at page 54 of the writ petition deals with educational qualification of devendra kumar tripathi and he has to his credit b.ed. and thus he lacks appropriate requisite qualification as is envisaged under rules 4 and 5 of the 1978 rules. at the point of time when approval is to be accorded, then authorities entrusted with the task of according approval has to be satisfy himself in terms of sub-rule 5 of rule 10 to ensure that candidate recommended by selection committee possess minimum qualification prescribed for the post. here at no point of time any one of the authorities have made any endeavour to enter into this qualification as to whether devendra kumar tripathi possessed minimum qualification as is envisaged in rule 4 of 1978 rules. as devendra kumar. tripathi does not possess requisite minimum trainman teacher course as such he is ineligible to the appointed as head master in recognized junior high school and as such appointment of devendra kumar tripathi is clearly dehors the rule and writ of mandamus cannot be issued for ensuring payment of salary to an incumbent whose appointment is void on the face of it, as he lacks minimum qualification.6. view, which has been taken above stands fortified from the judgment of this court in the case of dharambeer singh v. state of u.p. and ors., reported in 2004 (4) esc 2838 (alld.) wherein this court has repelled the similar argument that teaching training course mentioned in rule 4 (2) (b) of 1978 rules, is illustratative and not exhaustive, therefore, b.ed. which is also a training course has to be treated equivalent to the courses mentioned in the rules. relevant paras 7, 8, 9, 10, 11, 12 and 13 of the said judgment is being quoted below :'7. education qualification of the respondent no. 4 is m.sc., b.ed. he is graduate and has three years teaching experience. he passed b.ed. teacher's training course. the question is whether b.ed. teachers training certificate could be treated to be minimum qualification for appointment on the post of head master of a recognized junior high school as envisaged by rule 4 (2) (b) of the rules, 1978. for better understanding of the dispute rule 4 of the rules, 1978 is extracted below :--'minimum qualifications.--(1) the minimum qualifications for the post of assistant teacher of recognized school shall be intermediate examination of the board of high school and intermediate education, uttar pradesh or equivalent examination (with hindi and teacher's training course recognizsed by the state government or the board such as (hindustani teaching certificate, junior teaching certificate, basic teaching certificate or certificate of training).(2) the minimum qualification for the appointment to the post of headmaster of a recognized school shall be as followed:-- (a) a degree from a recognized university or an equivalent examination recognized as such;(b) a teacher's training course recognized by the state government or the board such as (hindustani teaching certificate, junior teaching certificate, basic teaching certificate, or certificate of training); and(c) three years teaching experience in a recognized schools.' 8. a perusal of this rule indicates that a teachers training certificate is essential qualification for the post of head master. the use of expression such as in rule 4 (2) (b) was relief in support of the submission that it would include b.ed. the expression 'such' has been defined in webster's third new international dictionary as below:-- '1. or a kind or character about to be indicated, suggested or exemplified.2. having a quality already or just specified; used to avoid repletion of a descriptive term.3. of the same class, type, or sort: in a same category: similar.' 9. the expression 'such' has been defined in black's law dictionary, fifth edition as below :--'of that kind having particular quality or character specified. identical with, being the same as what has been mentioned. a like similar, of the like kind. 'such' represents the object as already particularized in terms which are not mentioned, and is a descriptive and relative word referring to the last antecedent.' 10. the expression 'such as' has been used to mean teachers training courses of the similar type of category as mentioned in rule 4 (2) (b). the teachers training course, therefore, must satisfy the condition of being recognised by the state government of board. and the course must be similar to certificate mentioned in the rule. the state government or the board has not recognized or declared training qualifications of b.ed. or l.t. to be the equivalent qualification as enumerated in rule 4 (2) (b), therefore, it cannot be accepted that the petitioner possessed the teachers training qualification envisaged by rule 4 (2) (b) of rules, 1978.11. it may now be considered whether b.ed. or l.t. is equivalent to teachers training courses such as hindustani teaching certificate, junior teaching certificate, certificate of training or basic teaching certificate. the expression 'such' as, explained earlier means courses of similar type. since b.ed. is not a course of similar type the respondent was not qualified to be appointed as head master. the submission of shri khare appears to be based on government treating b.ed. as sufficient for appointment in basic schools in 1998. but the submission proceeds on misapprehension. in junior basic schools managed by u.p. basic education board. education is imparted from classes 1 to v. in senior basic schools education is imparted from classes vi to viii. service conditions of teachers and head master of these schools are governed by the provisions of u.p. basic education (teachers) service rules, 1981 (in brief rules, 1981). rule 8 prescribes essential qualification for appointment to the post of teacher or head master. the essential teachers training qualification which has been prescribed is the same as was provided in rules, 1978. it provides teachers training qualification consisting of a basic teacher's certificate, hindustani teacher's certificate, certificate of training or any other training course recognized by the government as equivalent thereto. the essential qualification for appointment of head master of junior basic schools is five years teaching experience as assistant master of junior or senior basic schools. after for appointment of head master of senior basic schools three years teaching experience as permanent head master of junior basic schools; or permanent assistant teacher of senior basic schools. therefore, only that assistant teacher who possessed the essential teachers training qualification as provided by the rule 8 could be appointed head master. teachers training qualifications prescribed by rule 4(2)(b) of rules, 1978 and rule 8 of rules, 1981 are same. in 1998 there were large number of vacancies of about twenty eight thousand assistant teachers in basic schools, but candidates with b.t.c. or equivalent training qualifications were not available. the candidates were available who had l.t. and b.ed. or other equivalent qualifications which are essential teachers training qualifications for appointment of assistant teacher l.t. grade for teaching high school classes 0-10 as provided by appendix 'a' to regulation 1, chapter ii to the regulations framed under the u.p. intermediate education act, 1921. in view of large number of vacancies the state government decided to fill the posts of assistant teachers from the candidates who had passed l.t./b.ed./c.p.ed./d.p.ed./b.p.ed. the government framed a scheme for one time selection for the academic session 1997-1998. it issued a government order on 9.1.1998 that looking to the experience of candidates who had passed l.t./b.ed./c.p.ed./ d.p ed./b.p.ed. these candidates would be eligible for appointment in basic schools. but the candidates were required to undergo b.t.c. special training course of six months. and after completion of the course they would be treated to be eligible for appointment as assistant teachers in the schools managed by the board. this court upheld the validity of government order dated 9.1.1998 in civil misc. writ petition no. 29107 of 1999, alok kumar pandey v. state of u.p. and ors., decided on 19.7.1999. the candidates who had passed l.t./ b.ed./c.p.ed./d.p.ed./b.p.ed., training courses filed writ petitions before this court claiming that they possessed l.t./b.ed. training certificates which was higher than b.t.c. and in any case it has to be treated to be equivalent to b.t.c. training certificate. this court did not accept that l.t./b.ed. training certificates were higher or equivalent to b.t.c. training certificate. in nirmal chandra mishra and ors. v. state of u.p. and ors., 1997 (1) esc 412, it was held that b.ed. training course is not equivalent to b.t.c. as the state government has not declared l.t. or b.ed., training course to be equivalent to b.t.c. training course. i another decision in b.ed. berozgar sangh, sonnhadra and ors. v. state of u.p. and other, 1997 (30) alr 737, it had been held that b.ed. or l.t. cannot be treated to be equivalent to b.t.c. the court further held that b.ed. and b.t.c. are different training courses for teaching different type of children; therefore, b.ed. is neither higher nor lower than b.t.c. it is thus, clear that neither the state government nor the court treated b.ed. to be a course recognized under rule 8 of rules, 1981. teachers training qualification mentioned in rule 8 of rules, 1981 and rule 4(2)(b) of rules, 1978 arc same, therefore, b.ed. training qualification of petitioner cannot be treated to be equivalent or higher, to teachers training qualification 'envisaged by rule 4(2)(b) of rules 1978. therefore, the respondent no. 4 was not qualified to be appointed as head master of the institution and his appointment is liable to be quashed.12. shri khare learned counsel for respondent no. 4 has argued that where a minimum qualification has been prescribed under the rules candidates who possess higher qualification cannot be left out from the zone of consideration. he placed reliance on decision of the apex court in mohd. riazul usman gani and ors. v. district and session judge, nagpur and ors., 2000 (2) esc 956 (sc). this decision of the apex court is not of any held to the respondents. in paragraph 21 of the apex court observed that the law laid down was on its own facts and it was not laying down any rule for universal application. the court said so as minimum qualification laid down for peon was making the provision for promotion of a peon as clerk and regional (language) section writers under the recruitment rules nugatory. it was held that criteria which had the effect of denying a candidate his right to be considered for the post of the principal that he was having higher qualification than prescribed would be irrational. it is not so in basic schools. an assistant teacher can be appointed as head master only if he holds teachers training certificate as provided in rules and not because he is b.ed. further this court has held that b.ed. is not higher than b.t.c. it has been explained earlier that even the government while permitting b.ed. and l.t. candidates to be appointed in basic schools in 1998 directed that they shall have to take special b.t.c. training course for six months. the assumption, therefore, made by the learned counsel that b.ed. is higher qualification is not correct. in either view the submission does not have any merit.13. i have held that respondent no. 4 did not possess minimum qualification for the post of head master of junior high schools and his appointment is liable to be quashed, therefore, it is not necessary for me to consider the other questions raised by learned counsel for the parties.'7. apex court also in the case of yogesh kumar and ors. v. government of nct, delhi and ors., (2003) 3 scc 548, in respect to appointment of primary schools teachers and entitlement of candidates having b.ed. qualification has held that candidates with b.ed. degree are ineligible for being appointed as primary school teachers. further b.ed. course equips them for teaching higher classes. a specialized training given to teachers for teaching small children at the primary level cannot be compared with training given for awarding b.ed. degree. merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which b.ed. is the prescribed qualification, it cannot be held that b.ed. is a higher qualification than t.t.c. looking to the different nature of t.t.c. qualification the high court rightly held that it is not comparable with b.ed. degree qualification and latter cannot be treated as higher qualification to the former. thus on these principle, it is well settled that b.ed. degree holders are not at all eligible for being appointed as assistant teachers in recognized junior high school under 1978 rules. relevant paras 2, 3, 4, 5, 6, 7 and 8 are quoted below :'2. the first contention advanced by the learned counsel appearing for the b.ed. candidates is that under the terms of the advertisement for recruitment issued on 21.9.2000. b.ed. qualification is included in the prescribed qualification and just at the nick of final selection the authorities were not right in issuing the impugned circular to declare them ineligible for recruitment. the relevant part of the advertisement for recruitment containing the requirements of essential qualifications reads as under : 'a. (1) higher secondary pass of recognized board/university with an elective subject in the matric level.(ii) two year teachers training certificate from the recognized institution.orb. (i) intermediate or equivalent from recognized board/university with an elective subject in the required language at the metric level.(ii) one year teacher training certificate from a recognized institution.note.--the candidate applying for the post of assistant teacher (primary) hindi must have passed hindi as an elective subject at the matric level.' 3. the submission made on behalf of b.ed. candidates is that as prescribed in clause b (ii), one year's trained teachers certificate is not granted anywhere by any institution and therefore, the aforesaid qualification should be treated to be to meant to indicate b.ed. degree which is a one year teacher's training course after graduation.4. the second contention advanced is b.ed. qualification should be treated as higher qualification than t.t.c. because primary teachers recruited on t.t.c. qualification can get promotion as teachers to teach higher classes and b.ed. is the prescribed qualification for higher classes.5. the division bench of the delhi high court in the impugned judgment has dealt with the above two arguments in great detail. in our considered opinion it has rightly come to the conclusion that b.ed. qualification, although a well-recognized qualification in the field of teaching and education being not prescribed in the advertisement, only some of the b.ed. candidates who took a chance to apply for the post cannot be given entry in the field of selection. we also find that the high court rightly came to the conclusion that teacher training imparted to teachers for b.ed. course equips them for teaching higher classes. a specialized training given to teachers for teaching small children at the primary level cannot be compared with training given for awarding b.ed. degree. merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which b.ed. is the prescribed qualification, it cannot be held that b.ed. is a higher qualification than t.t.c. looking to the different nature of t.t.c. qualification the high court rightly held that it is not comparable with b.ed. degree qualification and latter cannot be treated as higher qualification to the former.6. lastly, learned counsel for the appellants urged that undisputedly for the last several years for recruitment of primary teachers in municipal corporation schools, candidates with b.ed. degree were considered and appointed. this long standing practice should be taken as aid to construe the terms of the advertisement and particularly clause b (ii) on which reliance is placed by b.ed. candidates to consider then eligible.7. in support of the above contentions learned counsel placed reliance on the decision of this court in n. suresh nathan v. union of india, 1992 suppl (i) scc 584.8. this last argument advanced also does not impress us at all. recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any, deviation from the rules allows entry to ineligible persons and deprives many other who could have competed for the post. merely because in the past some deviation and departure was made in considering the b.ed. candidates and we are told that was so done because of the paucity of t.t.c. candidates, we cannot allow a patent illegality to continue, the recruitment authorities were well aware that candidates with qualification of t.t.c. and b.ed. are available yet they chose to restrict entry for appointment only to t.t.c. pass candidates. it is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. so far as b.ed. qualification is concerned, in the connected appeals (ca no. 1728-29 of 2001) arising from kerala high court which are heard with this appeal, we have already taken the view that b.ed. qualification cannot be treated as a qualification higher than t.t.c. because the natures of training imparted for grant of certificate and degree are totally different and between them there is no parity whatsoever. it is projected before us that presently more candidates available for recruitment to primary school are from b.ed. category and very few from t.t.c. category. 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 but we cannot consider b.ed. candidates for the present vacancies advertised as eligible. in our view, the division bench of the delhi high court was fully justified in coming to the conclusion that b.ed. candidates were rightly excluded by the authorities from selection and appointment as primary teachers. we make it clear that we are not called upon to express any opinion on any b.ed. candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement, which was under challenge before the high court and this appeal.'8. hon'ble apex court in the case of p.m. latha and anr. v. state of kerala and ors., judgment today 2003 (2) sc 423, has taken view that b.ed. degree holder cannot necessarily be held to be holding qualification suitable for appointment as assistant teacher in primary school and there is sufficient logic and justification in the study prescribing qualification of teacher training certificate and no b.ed. for appointment of teachers in primary schools. relevant paragraphs 9, 10, 11, 12, 13, 14, 15, 16 and 17 of aforesaid judgment is quoted below :'9. it is not disputed before us by the parties that kerala education act of 1958 and the kerala education rules framed thereunder regulate recruitment to. the posts of teachers in private schools aided by the government. it is not brought to our notice that correspondingly the government memorandum or order, which regulated recruitment to government primary schools has also been amended to prescribe b.ed. and equivalent degree qualification as eligibility qualification for the post.10. we find absolutely no force in the argument advanced by the respondents that b.ed. qualification is a higher qualification than t.t.c. and therefore, the b.ed. candidates should be held to be eligible to compete for the post. on behalf of appellants, it is pointed out before us that trained teachers certificate is given to teachers specially trained to teach small children in primary classes whereas for b.ed. degree, the training imparted is to teach students of classes above primary b.ed. degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary school, whether for a particular post, the source of recruitment should be from the candidates with t.t.c. qualification or b.ed. qualification, is a matter of recruitment policy. we find sufficient logic and justification in the state prescribing qualification for post of primary teachers as only t.t.c. and not b.ed. whether b.ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider b.ed. candidates, for the present vacancies advertised, as eligible.11. the division bench in the impugned order upheld the decision of the single judge that in terms of the advertisement, b.ed. candidates were not eligible to take up the selection and to be included in the rank list. we fail to understand that having thus upheld the decision of the learned single judge what was the justification for the division bench to refer to statutory recruitment rules applicable to teachers in private primary school, aided by the government and the judgments rendered by the high court in their cases, for reversing the judgment of the single judge and maintaining the rank list including names of the b.ed. candidates and their appointments of the basis of rules yet to be framed.12. on behalf of respondents, it is submitted that since large number of b.ed. candidates were allowed to compete and actual appointment orders were also issued in their favour, the division bench has tried to adjust the equities between the parties.13. equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. the division bench forgot that in extending relief on equity to b.ed. candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were t.t.c. candidates and would have secured a better position in the rank list to get appointment against the available vacancies, had b.ed. candidates been excluded from the selections. the impugned judgment of the division bench is both illegal, inequitable and patently unjust. the t.t.c. candidates before us a appellants have been wrongly deprived of due chance of selection and appointment. the impugned judgment of the division bench, therefore, deserves to be set aside and of the learned single judgment restored.14. learned counsel for the respondent states that two interim orders were made by this court during the pendency of special leave petitions and after grant of leave for these appeals. the relevant orders dated 3:7.2000 and 1.3.2001 read as under : 'court order dated 3.7.2000.taken on board. issue notice.any appointment in the meanwhile made will be subject to the result of any order passed in this slp.'court order dated 1.3.2001........................................................ mr. p.p. rao, learned senior counsel submitted on behalf of the state of kerala that t.t.c. holders alone will be appointed in the vacancies arising in respect of lower primary school (lps). this will continue for the future posts also until otherwise decided by this court. he submitted that so far as upper: primary schools (ups) are concerned, until otherwise decided, t.t.c. holders as well as b.ed. holders' will be considered and the public service commission (psc) will select the persons out of this as one category who are more competent among them for appointment. we make it clear that all such appointments made after 3.7.2000 will be treated as only provisional appointments and be subject to the final result of the appeals.this order will apply only to non-private schools.'15. learned counsel for the private respondents relying on the above orders of this court, submits that since the b.ed. candidates have been appointed after amendment of the rules and on the statement made by the counsel for the state and the public service commission, this court should not upset the appointment of b.ed. candidates already made.16. we have held that the impugned judgment of the division bench is liable to be set aside and that of the single judge maintained. having thus reached a conclusion in favour of the present appellants who are t.t.c. candidates, it would be highly unreasonable to deny them relief merely because o the interim orders or arrangements made there by this court under the aforesaid two orders, b.ed. candidates were allowed to be appointed only provisionally. we take note of the fact that all the b.ed. appointees are not before us and even though all b.ed. candidates who have been arraigned as respondents to these appeals, have been served with notices of these appeals, only a few of them are represented through counsel. in these circumstances, we would restrict the relief to the candidates who were petitioners before the learned single judge including the present appellant.17. the exercise of preparation of afresh rank list directed to by the learned single judge shall be undertaken and after fresh list is prepared by exclusion of b.ed. candidates, if the appellants get the necessary rank against available vacancies at the relevant time, they would be given appointment and to make room for them, by termination appointment, if necessary of b.ed. candidates who mighty have been selected in their places.'9. judicial notice may be taken to this fact that b.ed. is not equivalent to b.t.c. course, from the fact that 46000 vacancies have bee advertised by state government after taking permission from national council for teachers education for special b.t.c. teacher training course, 2004 in respect to b.ed. degree holders and thus it is writ apparent and clear that b.ed. degree holders are not being treated equivalent to b.t.c. certificate holder, as both operate in different filed.10. thus, from the fact, as has emerged is that devendra kumar tripathi does not fulfill requisite qualification as is required under rules, as such appointment of devendra kumar tripathi is de hors the rules on account of lack of minimum eligibility criteria and as such present writ petition is allowed. selection and appointment of devendra kumar tripathi is hereby quashed and set aside.