Manu Kumari vs State

M.N. Bhandari, J.—The bunch of writ petitions involve common question of law thus are decided by this judgment. For convenience, facts of S.B. Civil Writ Petition No. 7477/2013 are taken.

The respondents issued an advertisement on 14.12.2011 for the post of Physical Training Instructor (in short "PTI") Gr. II & III. All the petitioners submitted application forms but rendered ineligible on the ground that qualification of "B.P.E." obtained by the petitioners is not recognized by the State Government.

Learned counsel for petitioners submits that in Para 7 of the advertisement, required qualification has been provided. For the post of PTI Gr. II, required qualification is Bachelor of Physical Education. (B.P.Ed.) recognized by the NCTE and working knowledge of Hindi written in Devnagri Script and knowledge of Rajasthani Culture. For PTI Gr.III, required qualification is Bachelor of Physical Education (B.P.Ed.) or Certificate in Physical Education (C.P.Ed.) or Diploma in Physical Education (D.P.Ed.) recognized by NCTE and working knowledge of Hindi written in Devnagri Script and knowledge of Rajasthani Culture. The petitioners are having three years Degree of Bachelor of Education yet rendered ineligible. Similar controversy came up before this Court in the case of State of Rajasthan and Others Vs. Hari Ram and Others, Therein, candidates holding qualification of Bachelor''s degree in Physical Education from Nagpur were held eligible for the post of PTI Gr. II, thereby degree in Bachelor of Education from Nagpur was held to be good. The judgment therein was upheld by Hon''ble Apex Court thus respondents should not be allowed to take a different view than what has already been decided by the Court. It is more so when action of the respondents is even discriminatory in nature. They have treated certain candidates to be eligible, though they are possessing only Diploma in Physical Education. It is only one year''s course. In the background aforesaid, the better qualified candidates have been treated to be ineligible.

For the post of Teacher Gr. III, it is submitted that as per National Council for Teacher Education (Determination of Qualification for Recruitment of Teachers) Regulations 2001 (in short "Regulations, 2001"), required qualification is only of Senior Secondary School Certificate or Intermediate or its equivalent with C.P.Ed., of a duration of not less than two years. The petitioners are in possession of course of three years yet rendered ineligible even for the post of Teacher Gr. III, whereas a candidate having higher qualification than required, should not have been made ineligible.

Learned Additional Advocate General Shri S.N. Kumawat, on the other hand submitted that there is a difference between "B.P.E" and "B.P.Ed.". The qualification of "B.P.E." can be perused after 10+2 course, whereas "B.P.Ed." is offered after graduation. In view of the above, the petitioners have been held ineligible.

I have considered the submissions made by the parties and perused the record.

Before averting to the facts of this case and issue raised, it would be relevant to consider as to who is the competent authority to lay down the qualification for appointment on the post of Teachers Physical Teachers. It is in view of contradiction in the Rajasthan Educational Subordinate Service Rules, 1971 (in short "Rules of 1971") and Regulations of 2001 framed by the NCTE.

The National Council of Teacher Education Act was enacted in the year 1993 followed by framing of Regulations. As per Act of 1993, Council was given powers to frame regulations so as to provide minimum qualification for the post of Teachers. The NCTE framed Regulations in the year 2001 and therein qualification for the post of Teacher Gr. I, II and III so as qualification for the post of PTI Gr. II and III was provided. It was keeping in mind different levels of school. For the post of PTI, it is at the level of Elementary, Secondary or High School and lastly Senior Secondary. The bifurcation of the post was made similarly for the post of Teachers as well. It was at the different level like Primary, Elementary, Secondary and Senior Secondary. Regulation 2 of the said Regulations provides its applicability for all the recruitment of Teachers in the Central or State Government. Regulation 3 provides for qualification as per Schedule. Regulation 5 provides for power to relax. Regulation 6 talks about interpretation and powers of the NCTE to decide the issue of equivalence. After the Act, 1993 and the Regulations, 2001, all the State Governments are bound to make appointment as per regulations. It is strange that the State of Rajasthan has amended the Rules of 1971 in the year 2011 but did not make it consonance to the regulations of NCTE. It is more so when field is occupied by the NCTE under National Council for Teacher Education Act, 1993. Thus, if State Rules are repugnant to the Act and the rules framed by the Central Government or its Councils, then cannot be allowed to be applied. It is more so when concurrence of President of India is missing. Considering the aforesaid legal position, it would be necessary to refer Regulations 2, 3 and 6 apart from relevant Schedule appended for the post of PTI in the Regulations of 2001, which are quoted for ready reference:

"2. Applicability.--These Regulations shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognised by Central or State Government and other authorities for imparting education at elementary (primary and upper primary/middle school), secondary and senior secondary stages.

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.

Interpretation.--If any question arises relating to interpretation of these Regulations or equivalence of various teachers'' training programmes, decision of the Council shall be final."

The aforesaid is the position of the Regulations framed by the NCTE and now it is required to refer the Rules of 1971 framed by the State Government and even amended in the year 2011. As per the Rules of 1971, the qualification provided therein is quoted hereunder for ready reference:

"Bachelor of Physical Education (B.P.Ed.) recognized by the National Council for Teacher Education."

"Bachelor of Physical Education (B.P.Ed.) recognized by the National Council for Teacher Education and 5 years'' experience on the post mentioned in column number 5.

OR

Certificate in Physical Education (C.P.Ed.) or Diploma in Physical Education (D.P.Ed.) recognised by the National Council for Teacher Education and 10 years'' experience on the post mentioned in column number 5."

"Bachelor of Physical Education (B.P.Ed.) or Certificate in Physical Education (C.P.Ed.) or Diploma in Physical Education (D.P.Ed.) recognised by the National Council for Teacher Education."

The Notification dt. 09.12.2011 is also quoted for ready reference:

GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL

(A-Gr. II)

No.F.2(6)DOP/A-II/84 Jaipur

dt.: 09.12.2011

NOTIFICATION

In exercise of the powers conferred by the proviso to Article 309 of Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Rajasthan Educational Subordinate Service Rules, 1971, namely:--

Short title and commencement.--(1) These rules may be called the Rajasthan Educational Subordinate Service (Amendment) Rules, 2011.

(2) They shall come into force with immediate effect.

Amendment of Schedule I.--In Schedule 1 appended to the Rajasthan Educational Subordinate Service Rules, 1971, under the heading "Section-B Physical Training Instructors."--

(a) the existing entry in column number 4 against serial number 2 shall be substituted by the following, namely:--

"Bachelor of Physical Education (B.P.Ed.) recognized by the National Council for Teacher Education."

(b) the existing entry in column number 6 against serial number 2 shall be substituted by the following namely:--

"Bachelor of Physical Education (B.P.Ed.) recognized by the National Council for Teacher Education and 5 years'' experience on the post mentioned in column number 5.

OR

Certificate in Physical Education (C.P.Ed.) or Diploma in Physical Education (D.P.Ed.) recognised by the National Council for Teacher Education and 10 years'' experience on the post mentioned in column number 5."

(c) the existing entry in column number 4 against serial number 3 shall be substituted by the following, namely:--

"Bachelor of Physical Education (B.P.Ed.) or Certificate in Physical Education (C.P.Ed.) or Diploma in Physical Education (D.P.Ed.) recognized by the National Council for Teacher Education."

By Order and in the name of the Governor

Sd/-

Deputy Secretary to Government"

The amendment reveals it to be inconsistent to the Regulations of 2001. To the extent, Rules of 1971 are in variance to the NCTE Regulations. It cannot be allowed to hold field. The writ petition is thus required to be decided keeping in mind the aforesaid, though the issue aforesaid has not been raised in the petition but legal position has to be kept in mind by this Court. As per NCTE Regulations, a candidate would be eligible for the post of Teacher Gr. II (It is at the level of Secondary and High School), if he is graduate with Bachelor of Physical Education (B.P.Ed. or its equivalent). The Rules of 1971 of the State Government are little different as have been quoted above. What will prevail is NCTE Regulations in case of repugnancy, thus every candidate needs to be graduate and should possess qualification of Bachelor of Physical Education. In view of the above, if any candidate is not in possession of the qualification of graduation and holding the qualification of Bachelor of Physical Education only, then would be ineligible for appointment to the post of PTI Gr. II. Merely possessing qualification of Bachelor of Physical Education would not be sufficient unless he is graduate. A confusion is tried to be created by the petitioners by stating that qualification of Bachelor of Physical Education is a graduate degree thus separately graduation is not required. 1 am unable to accept the argument aforesaid as it is de hors the Regulations framed by the NCTE. What has been provided under the Regulations is the qualification of graduate with Bachelor of Physical Education. The word "with" used between "graduate" and "Bachelor" of Physical Education" cannot be ignored.

In the case of Dhananjay Malik and Others Vs. State of Uttaranchal and Others, qualification taken into consideration was different thus aforesaid may not apply to the present case. Para 12 of the said judgment has been referred and is quoted hereunder:

"The 1983 Rules prescribe the requisite educational qualifications for the post of Assistant Teacher-physical equation as under:--

"Graduation degree in Physical Education or Diploma in the Physical Education from any recognised Institution"

The aforesaid Rule has been clarified by the Government of India, Ministry of Education, on 26.11.1965 to the effect that B.P.E degree holders should be treated at par with those who hold B.A./B.Sc., B.Com degree plus a diploma in physical education and should not be required to possess an additional B.A., B.Sc/B.Com. degree for purposes of employment as Directors of physical education or on other similar posts. The aforesaid position has been further clarified by the Government in paragraph 12 of its counter affidavit that qualification of B.P.E. includes the graduation as well as diploma of physical education."

Perusal of para quoted above reveals that as per rules referred therein, one was required to be in possession of graduation degree in Physical Education or Diploma in Physical Education. The rule therein was to possess graduation degree in Physical Education and not graduate with degree in Physical Education as is the NCTE Regulations. As per NCTE Regulations, two qualifications are required to be possessed. The Regulation of NCTE and the Act of 1993 were not brought to the notice of Hon''ble Apex Court.

The required qualification for the post of Teacher Gr. III is also considered. Therein, qualification is bifurcated in two parts. First part is for the qualification of Senior Secondary School certificate or Intermediate or its equivalent. The second part needs Certificate in Physical Education (C.P.Ed.) of a duration of not less than two years or its equivalent Thereby at the level of Teacher Gr. III, one would be eligible if possessing qualification of Intermediate or Senior Secondary with that of C.P.Ed. For Teacher Gr. II, it needs to be Graduation and Bachelor of Physical Education.

In the light of legal position discussed aforesaid, I am of the view that impugned order passed by the respondent-RPSC is not after taking note of Regulations of 2001 thus cannot be allowed to operate. A candidate possessing Bachelor of Physical Education of a duration of three years would be eligible for appointment on the post of Teacher Gr. II and nomenclature of qualification as B.P.E would not make or render such candidates to be ineligible. It is however subject to their possessing qualification of graduation separately and it should not be intermixed or to be understood to be graduate on account of possessing qualification of Bachelor of Physical Education. Thus while setting aside the impugned order passed by the RPSC, they are directed to make selections strictly as per NCTE Regulations, if the Rules of 1971 are in variance to the NCTE Regulations. As per Regulations 2 and 3 of the Regulations of 2001, the State Government is under an obligation to make appointment based on the qualification provided by NCTE. The case of Hari Ram (supra) referred by the petitioners is prior to NCTE Regulations of 2001, rather issue as to what is the qualification provided by the NCTE and what is the role of the NCTE was not an issue before the Court. It may be in absence of Regulations of 2001 as writ petition therein was pertaining to selection in the year 1994 or prior to it. In any case, this Court is also of the opinion that candidate holding qualification of Bachelor of Education is eligible for appointment on the post of PTI Gr. II subject to other qualification of graduation.

The argument has been made in reference to the post of Teacher Gr. III by those who are having so-called better qualification than required under NCTE Regulations of 2001 or under Rules of 1971. A reference of judgment of Division Bench in the case of Dinesh Kumar Panwar vs. State of Rajasthan has been given wherein a candidate possessing higher qualification was taken to be in satisfaction to lesser qualification. I am informed that interim order has been passed against the said judgment by Hon''ble Apex Court. It is apart from the fact that similar controversy came up for consideration before the Division Bench of this Court in the case of Kallash Chandra Harijan Vs. State of Rajasthan and Others, . Therein, referring the judgment of Hon''ble Supreme Court in the case of P.M. Latha and Another Vs. State of Kerala and Others, It was held that claim of eligibility based on higher qualification cannot be accepted. Therein, controversy before the Court was in respect of those who were holding qualification of B.Ed. yet treated to be ineligible for Elementary or Primary level schools as required qualification was BSTC alone. If candidate is holding qualification of B.Ed. then would not be eligible for appointment as Primary and Elementary teacher. The argument that B.Ed. is a higher qualification than BSTC was not accepted so as the eligibility. The relevant paras of the judgment in the case of Kailash Chandra Harijan (supra) are quoted hereunder for ready reference:

"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 recognised by Central or State Government and other authorities for imparting education at elementary (primary and upper primary/middle school), secondary and senior secondary stage. 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 the 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. The scheme of training/education imparted in basic teachers'' training course (BSTC) in 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 Yogesh Kumar and Others Vs. Government of NTC, Delhi and Others, P.M. Latha and Another Vs. State of Kerala and Others, and Dilip Kumar Ghosh and Others Vs. Chairman and Others, amongst other cases. The petitioners have brought on record the syllabi of the BSTC and B.Ed. Courses to highlight that the nature of BSTC training/course being entirely different, juxtaposed with B.Ed. course, only those possessing BSTC qualification can be eligible for recruitment of the post of teachers in primary schools.

The case of the State is that both B.Ed. and BSTC courses are aimed at imparting training to the prospective teachers. The courses of studies for both of them are molded in such a way as to maximise training aspect possessed of educational background. If BSTC syllabus has been prepared in such a way that one single teacher is able to teach all subjects of a particular class, the B.Ed. syllabus is also prepared in the same manner. Merely because syllabus for B.Ed course contemplates specialisation in two subjects it does not mean that the person cannot teach other subjects. The fact is that syllabus for the B.Ed. course includes rigorous training of other subjects such as Indian Society Development, Democratic Social Order, Application of Psychology, Educational Psychology, Management problems of education, Core programme for prospective teacher etc.-which are compulsory in nature. Merely because BSTC course has duration of two years it does not mean that it is a separate class by itself, and whatever is taught in the BSTC course in two years is taught in BEd. course in one year at the same and higher level. The decisions relied upon on behalf of the petitioners, referred to above, are sought to be distinguished on the ground that in those cases, B.Ed. was not a prescribed qualification in the recruitment rules unlike the present case where B.Ed has been included and brought at par as an alternate qualification of BSTC for the purpose of eligibility for recruitment.

In view of the decisions of the Apex Court in Yogesh Kumar and Others Vs. Government of NTC, Delhi and Others, P.M. Latha and Another Vs. State of Kerala and Others, and Dilip Kumar Ghosh and Others Vs. Chairman and Others, 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 Ghosh 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 teach a student of primary class because he is not 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."

Learned Advocate General appearing for the respondents tried to wriggle out of the situation submitting that the impugned appointments have been made for upper primary schools and not primary schools; in the upper primary schools teaching is imparted from class I to VII, and as would appear from the Schedule of the Regulations, graduate with Bachelor of Education (B.Ed.) or its equivalent is one of the alternate qualifications for appointment of teachers in upper primary schools. Learned Advocate General submitted that the State Government is competent to fix the qualification and also lay down the manner of recruitment. The amendments made in the Panchayati Raj Act and the Panchayati Raj Rules permit composite selection for upper primary schools from amongst candidates possessing BSTC or BEd. Qualification. The advertisement was issued accordingly. The amendments having been upheld by the Division Bench of this Court, the impugned selection/appointments do not suffer from any infirmity to warrant interference.

Shri Manish Bhandari appearing for the selected candidates made an alternative argument. He submitted that even if it is held that B.Ed. teachers can not 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.

We will first consider the submission of the learned Advocate General. It is true that by amendment in Section 89(2)(iii) of the Panchayati Raj Act the primary and upper primary schools ere clubbed as one category and similarly by amendment in Rule 266 of the Panchayati Raj Rules, B.Ed. was brought at par with BSTC as the requisite qualification for appointment in the upper primary schools. However, upper primary school comprises to two sections primary section consisting of classes 1 to V and middle section consisting of classes VI to VIII. It is called upper primary school, because besides the primary level, classes VI to VIII are there in the school. But though by upgrading the school-adding classes VI to VIII, it may become upper primary school, primary section of the school does not lose its character, at least not for the purpose of recruitment of teachers. If B.Ed teachers are not eligible to teach students at the primary level they can not be appointed on the specious ground that it is an upper primary school, that would be circumventing the prohibition in his appointment for primary school. If he cannot properly teach the students at the primary level whether the school is a primary school or an upper primary school, he cannot be held to be eligible for appointment in an upper primary school unless the vacancies - depending on requirement at the primary level and middle level - are identified and appointments are made against them strictly against the vacancies meant for the middle section of the upper primary schools. This is what this Court held in its judgment dt. 25.11.2004 and what follows from the Schedule, which may at this stage be quoted as follows:

Recruitment qualifications for recruitment of teachers in educational institutions mentioned in Section 2 of the Regulations.

From a bare glance it would appear that the minimum academic and professional qualifications as mentioned in second column are referable to the level of education, as is well known and also recognised by the NCTE, comprises of two levels-primary and upper primary. While at the primary level teaching is imparted from classes I to V, at the upper primary level or middle level, teaching is imparted from classes VI to VIII. But though in the upper primary school teaching may be imparted at the lower level i.e., from classes I to V also, it does not mean ''that the distinction between primary and upper primary levels disappears. It is clear from the fact that while describing the level of education/school the upper primary level is described as "middle school section" in the Regulations. The use of the word "section" leaves no room for doubt that though it is a part of same (elementary) level or school, it continues to have a separate entity. We are, therefore, inclined to think that even though primary and upper primary schools have been treated as one class in Section 89(2)(iii) of the Panchayati Raj Act, for the purpose of eligibility for appointment of teachers, B.Ed cannot be treated at par with BSTC notwithstanding that it is shown as alternate qualification in Rule 266 of the Panchayati Raj Rules.

Learned Advocate General submitted that the decisions in Yogesh Kumar, P.M. Latha and Dilip Kumar Ghosh (supra) were rendered in the context of rules which did not provide for B.Ed. as requisite qualification for appointment in primary schools, whereas in the State of Rajasthan, B.Ed. has been prescribed as requisite qualification, and, therefore, ratio of the said decisions is not applicable in these cases. Learned Advocate General also referred to the observations (in para 8 of the judgment in Yogesh Kumar and para 10 of the judgment in P.M. Latha) to the effect that fixing of qualification is a matter of recruitment policy and it is for the authorities to consider whether B.Ed. qualification can also be prescribed as qualification for appointment of primary school teachers. Heavy reliance was placed on these observations and they may usefully be quoted as under:

"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."

xxxxx xxxxx xxxxx xxxxx

"Whether for a particular post the source of recruitment should be from the candidates with TTC 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 TTC 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."

Indeed, the above observations were noticed in Dilip Kumar Ghosh also with approval.

The observations-as would appear from the discussions a little hereinafter-do lend support to the case of the respondents in a different context and for a different reason but on that basis the prescription of B.Ed. as the requisite qualification for appointment in primary/primary section of upper primary schools cannot be held. The decisions were rendered prior to coming into force of the Regulations and there was no occasion to consider whether it is open to the State to fix any qualification contrary to the norms laid down by the NCTE. We may deal with this aspect at this stage.

The National Council for Teacher Education Act, 2003 under which the NCTE has been establishment has been enacted with a view to achieving planned and co ordinate 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. u/s 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 recognised institutions". Section 32 of the Act confers powers upon the Council to make regulations not inconsistent 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".

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 Union of India (UOI) and Others Vs. Shah Goverdhan L. Kabra Teachers College, : Union of India (UOI) and Others Vs. Shah Goverdhan L. Kabra Teachers College, 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 Rajesh Kumar Gupta and Others Vs. State of U.P. and Others, 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 recognised by the NCTE Act and the Regulations framed thereunder, was upheld by the Supreme Court.

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 1 of the 7th Schedule to the Constitution (See the decision in Union of India (UOI) and Others Vs. Shah Goverdhan L. Kabra Teachers College, By the 42nd amendment, the subject of education including universities'' which figured at Entry 11 in List II was deleted and 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 re-allocation of power the State also have power to legislate on education, regulate the establishments and maintenance of educational institutions but in exercise of the power can not make rule contrary to standards prescribed under the Central legislation. The following observations in Union of India vs. 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 the 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 1 having fixed the norms and qualification, 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 runs as under:

"The existing recruitment rules may be modified within a period of three years so as to bring them in conformity with the qualification 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 Schedule."

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 teacher 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 led no support to his argument.

We however, find sufficient force in the submissions that notwithstanding the fact that B.Ed. cannot be treated as the prescribed qualification for appointment in primary section of upper primary schools, the impugned selections and appointments are saved by the Regulations. Regulation 4 contemplates framing of recruitment rules in conformity with the qualifications prescribed in the schedules. At the same time it also allows the States time to modify the existing recruitment rules within a period of three years. In other words, the existing recruitment rules would continue to hold the field for three years from the date of coming into force of the regulations. It means that recruitment can be or could be made within this period in accordance with the existing recruitment rules. That recruitment can be made despite coming into force of the Regulations, in accordance with the exiting recruitment rules, becomes further evident from the words "subsequent to the issue of these regulations" occurring in the latter part of regulation 4. Thus on a close reading of Regulation 4 we have no doubt that notwithstanding coming into force of the Regulations, the recruitment could be made in the schools in accordance with the existing recruitment rules within a period of three years. The regulations came into force on their publication in the official gazette on or about 3.9.2001. The process of recruitment having commenced on 2.6.2004 i.e., well within three years, therefore, cannot be invalidated on the ground of B.Ed. not being the valid qualification for recruitment in the primary schools or primary section of the upper primary schools. The impugned selections and appointments being otherwise in accordance with the recruitment rules contained in Rule 266 of the Panchayati Raj Rules read with Section 89 of the Panchayati Raj Act, the observations of the Supreme Court relied upon by the learned Advocate General, quoted hereinabove, would seem to lend support to the respondents'' case to that extent."

This Court cannot decide the issue as to which is lower or higher qualification. In fact what is the required qualification for the post is to be determined by the experts and legislatures. A reference of Regulation 6 of NCTE Regulations 2001 would also be relevant. If any controversy of equivalence comes, it can be decided by the NCTE alone. The judgment of Hon''ble Apex Court in the case of P.M. Latha (supra) was after taking note of the fact that NCTE is an expert body to determine as to which qualification would be appropriate for appointment on the post of Teachers at different level and they have rightly provided different qualification like BSTC and B.Ed. for different level of schools. The ground of possessing higher qualification cannot be accepted to make a candidate holding qualification of B.Ed. to be eligible for Primary classes. In view of the judgment aforesaid, 1 am unable to hold a candidate to be eligible for the post of Teacher Gr. III even if he is not in possession of required qualification as specified under the Regulations of 2001 unless a clarification is made by the NCTE holding that if candidate is in possession of qualification of Bachelor of Physical Education, then would be eligible or aforesaid qualification would be equivalent to the C.P.Ed. The issue is accordingly kept open for NCTE and the State Government to get it determined and if they arrive at a decision that candidate holding qualification of Bachelor of Physical Education would be eligible for the post of Teacher Gr. III then to that extent, petitions should be treated as allowed.

In view of the discussion made above, while setting aside the impugned order passed by the RPSC holding qualification of BPE obtained by the petitioners not in satisfaction of the qualification of Bachelor of Physical Education but a candidate shall be treated eligible only when he possesses separate qualification of graduation required under NCTE Regulation. It is for the post of Teacher Gr. II at the level of Secondary or High School. For the post of Teacher Gr. III, appropriate directions have already been given, thus not to be reiterate or repeated.

All the writ petitions are disposed of along with stay applications with the aforesaid. It is however made clear that if a candidate is not in possession of qualification as provided by the NCTE, then would not be eligible for appointment and if respondents have treated a candidate to be eligible in violation of the Regulations of 2001, then take appropriate corrective action therein. Before parting with the judgment, the respondents are further directed to amend their Rules of 1971 for appointment on the post of Teacher so as PTI and make it in consonance to the Regulations of 2001. The necessary exercise in that regard should be undertaken and be completed within a period of four months from the date of receipt of copy of this order. The aforesaid is required to avoid type of controversy brought herein and also to remove repugnancy, though as and when there is repugnancy between Central and the State legislation, what will prevail is the Central enactment as per Article 254 of the Constitution of India but then the State Government should try to avoid repugnancy as it is creating unnecessary complications as well as litigations.