Puran Mal @APPELLANT@Hash State of Rajasthan & Ors

Name,Percentage in Graduation,Date of admission in B.Ed. Course

Puran Mal,49.388%,20.11.2014

Dharmendra Kumar

Sharma",45.444%,24.09.2014

Raveendra Singh,49.555%,07.08.2014

Appeal Writ No.1122/2017, decided on 10.08.2018.",,

Learned counsel appearing for the respondents vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that,,

there is no substance in any of the submissions made by the counsel for the petitioners. Submissions were made that the stipulation made in the,,

advertisement pertaining to eligibility as well as further stipulation made in Clause 9.3 and 9.4 are in consonance with the interpretation put to the,,

NCTE Regulations by this Court and directions in the case of Sushil Sompura & Ors. v. State (Education) & Ors. : D.B. Civil Writ Petition,,

No.3964/2011, decided on 20.05.2011, which judgment has exhaustively dealt with all the issues as raised in the present writ petitions.",,

Further submissions were made that, insofar as, the cases of Dharmendra Kumar Sharma and Raveendra Singh, ex-servicemen are concerned,",,

provisions of Rule 18-A of the Rules of 1988, have no application to the qualification as provided and, therefore, those petitioners are also not entitled",,

to any relief.,,

With regard to the judgment in the case of Monika Kumari (supra), it was submitted that the said judgment pertain to a candidate of Level-I and has",,

not taken into consideration, the stipulation made in the NCTE Regulations, which has qualified the eligibility of “45% marks and 2-year Diploma in",,

Elementary Education, in accordance with the NCTE (Recognition Norms and Procedure) Regulations, 2002†and, therefore, the said judgment,",,

which is in ignorance of the express provisions / stipulations cannot be relied on, as the same has been rendered sub silento. Even in the case of",,

Neeraj Kumar Rai (supra), the judgment in the case of Sushil Sompura (supra) has been upheld and, therefore, the said judgment also doesn’t",,

advance the cause of the petitioners.,,

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.,,

A bare look at the statutory provisions i.e. Rule 266 of the Rules of 1996 would reveal that for Teachers (Level-II), the qualifications laid down is by",,

incorporation i.e. qualifications as laid down by the National Council for Teachers Education (‘the NCTE’) under the provisions of sub-section,,

(1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009, from time to time.",,

The relevant qualifications as laid down by the NCTE applicable to the present recruitment are as prescribed by notification dated 29.07.2011 by the,,

NCTE. The qualification as indicated in the advertisement cannot be questioned on that count.,,

So far as the stipulations indicated in Clause 9.3 are concerned, a bare look at the said stipulations as quoted hereinbefore would reveal that the same",,

refers to the Division Bench judgment dated 20.05.2011, which is the judgment in the case of Sushil Sompura (supra). In the case of Sushil Sompura",,

(supra) the petitioners therein, had questioned the notification dated 23.08.2010 issued by the NCTE, wherein, the qualifications pertaining to minimum",,

marks in graduation of 50% and 45% respectively, which were identical and sought permission to participate in the TET.",,

The Division Bench noticed the following submissions made on behalf of the NCTE and after considering all the issues involved, laid down / directed",,

as under:-,,

Submission:,,

“The relief prayed by the petitioners stands satisfied in view of the agreement expressed on behalf of NCTE to the effect that in case they have,,

passed B.A, B.Sc., B.Com., Senior Secondary or its equivalent qualification and obtained admission in the requisite courses such as B.Ed., B.El.Ed.",,

D.Ed. etc. as mentioned in para-1 of the Notification dated 23.8.2010, prior to the prescription of the minimum qualifying marks by NCTE in",,

Bachelor's degree or Master's Degree etc. or any other qualification equivalent thereto vide notifications dated 27.9.2007 and 31.8.2009, the minimum",,

qualification of having 45% or 50% marks, as the case may be, in the bachelor's degree or master's degree etc. or any other equivalent qualification,",,

shall not be insisted as stated by Mr. Kuldeep Mathur, learned counsel appearing on behalf of the NCTE on being instructed by Regional Director,",,

NCTE. Thus, the major grievance of the petitioners that their qualifications of B.Ed. B.El.Ed. etc. mentioned in para 1 are being de- recognized with",,

retrospective effect when there was no prescription of minimum qualifying marks of 45% or 50%, as the case may be, stands redressed in view of the",,

statement made by learned counsel appearing on behalf of the NCTE. It has been further stated by the learned counsel for the NCTE that for the first,,

time, de-novo qualifications were prescribed by the NCTE vide Notification dated 27.9.2007 and further, qualifications were prescribed vide",,

Notification dated 31.8.2009 and in case admission has been taken by the incumbents in any of the courses of B.Ed. B.El.Ed. etc. as mentioned in,,

para-1 of the Notification dated 23.8.2010 prior to aforesaid dates, they shall not insist for having 45% or 50% marks, as the case may be, in qualifying",,

examination for aforesaid courses. Thus, respondents have to allow aforesaid incumbents in TET examination, 2011.â€​ Direction:",,

“The respondents are free to hold the TET examination. The prayer of the petitioners regarding inclusion of qualification of B.Com. in the group of,,

qualification of graduation in the eligibility criteria has already been allowed. The respondents shall not insist on the qualification of having 45% or 50%,,

marks, as the case may be, in the bachelor's degree or master's degree etc. or any other equivalent qualification, in case incumbents have obtained",,

admission in the requisite courses such as B.Ed., B.El.Ed, Senior Secondary etc. prior to prescription of the minimum qualifying marks by NCTE vide",,

notifications dated 27.9.2007 and 31.8.2009. It is made clear that the incumbents, who have obtained the B.Ed. etc. before the minimum qualifications",,

were prescribed vide notifications dated 27.9.2007 and 31.8.2009, shall be allowed to appear in the TET Examination. The incumbents, who have",,

passed out B.Ed. Course from Jammu & Kashmir, have to be dealt with on similar yard sticks in case the qualification is otherwise recognized. Let",,

NCTE specify categories of teachers under para 4 of Notification dated 23.8.2010. As prayed by NCTE, let amended notification be issued within one",,

month covering aforesaid aspects.â€​,,

The above quoted direction is as amended by subsequent order dated 30.05.2011 passed by the Division Bench, whereafter in terms of the direction,",,

the present applicable notification dated 29.07.2011 was issued by the NCTE.,,

A bare look at the submissions (supra) made on behalf of the NCTE as well as the directions given by the Division Bench in the case of Sushil,,

Sompura (supra), it is apparent that Division Bench clearly prescribed for cut-off dates i.e. prior to notifications dated 27.09.2007 and 31.08.2009. The",,

Stipulations made in the advertisement under Clause 9.3 are essentially in compliance of the direction by the Division Bench in the case of Sushil,,

Sompura (supra) and a simple reiteration of the principles laid down therein providing for two cut-off dates i.e. 27.09.2007 and 31.08.2009.,,

As already noticed hereinbefore, all the petitioners have taken admission in B.Ed. course after 31.08.2009 and that also in the State of Jammu &",,

Kashmir, regarding which, the same yard sticks have been ordered to be applied by the Division Bench and, therefore, the petitioners having less than",,

50% marks in graduation are not eligible.,,

The qualification as indicated in the advertisement / notification providing for graduation with at least 45% marks and 1-year Bachelor in Education,,

(B.Ed.), has been specifically qualified by ‘in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time",,

in this regard’ and, therefore, the various notifications issued by the NCTE i.e. 27.09.2007, 31.08.2009, 23.08.2010 and 29.07.2011 have to be",,

taken into consideration for candidates, who have less than 50% marks and more than 45% marks in graduation and as already noticed hereinbefore,",,

the Clause 9.3 of the Regulations simply specifies the said requirements, the same cannot be said to be contrary to the Rules of 1996 and/or the",,

NCTE Regulations.,,

So far as the judgment in the case of Monika Kumari (supra) is concerned, in the said case, though the State in para-8 & 9 of the judgment",,

specifically raised plea regarding the said requirement, a Co-ordinate Bench of this Court in para â€" 18 of the judgment though observing that the",,

petitioner therein had less than 50% marks in Senior Secondary held her eligible for Level-I.,,

It was, inter alia, observed / held as under:-",,

“17. Thus, the sub Rule 3 Rule 266 of the Rules of 1996 clearly specifies that for appointment of Primary and Upper Primary School Teacher",,

which is by direct recruitment, clauses 1 to 5 will be as per the qualification as laid down by National Council for Teacher Education (NCTE) under",,

the provision of subsection (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009. Thus, the legislation of the State",,

Government in its own wisdom while legislating Sub Rule 3 Rule 266 of the Rules of 1996 has made it very clear that the guidelines of the NCTE shall,,

have binding force on all recruitment for the purpose of academic qualification in Primary and Upper Primary School Teacher (Level I to V). Now,,

once the legislation is amply clear then the notification issued by the NCTE under Section 23 of the Right of Children to,,

Free and Compulsory Education Act, 2009 on 29.07.2011 becomes binding by virtue of such legislation. The notification which is already on record as",,

Annexure-2, amply indicates that for minimum qualification, the candidates ought to have possessed senior secondary with at least 45% marks and 2",,

years Diploma in Elementary Education.,,

As per the record submitted by learned counsel for the petitioner and the same not being disputed by the respondent, it is clear that the petitioner",,

was having 47.54% marks in secondary education. It is also not disputed that the petitioner was having 2 years Diploma in Elementary Education,,

which is in accordance with NCTE notification. Once the petitioner had possessed the minimum qualification in terms of the notification and the Rule,,

266 of the Rules of 1996, any disqualification on account of any condition in the advertisement cannot be sustained contrary to legislation.â€​",,

Besides the fact that the said judgment pertains to the qualification pertaining to the Teacher Gr.III (Level-I), the judgment proceeds on the",,

assumption that persons with Senior Secondary with 45% marks were also eligible and the qualification attached therewith i.e. in accordance with the,,

“NCTE (Recognition Norms and Procedure) Regulations, 2002†has not been taken into consideration and as such the said judgment in the case",,

of Monika Kumari (supra) cannot in any manner guide or be treated as a precedent in the present case.,,

As already noticed hereinbefore, the stipulations made in Clause 9.3 of the notifications are perfectly in accordance with the judgment in the case of",,

Sushil Sompura (supra) and, therefore, in presence of a binding precedent in form of Division Bench Judgment in the case of Sushil Sompura (supra),",,

even otherwise the judgment in the case of Monika Kumari (supra) cannot be followed.,,

So far as the judgment in the case of Bharti Upadhyay (supra) relied on by the petitioners is concerned, in the said case, the candidate had cleared her",,

Senior Secondary Examination prior to the notification dated 27.09.2007 and, therefore, she was governed by the NCTE Regulations as well as",,

principles laid down in the case of Sushil Sompura (supra), however, the said judgment for the reasons discussed hereinbefore has no application to the",,

facts of the present case.,,

So far as the case of ex-servicemen and their claim to 5% relaxation in the minimum marks is concerned, the provisions of Rule 18-A of the Rules of",,

1998, insofar as relevant, reads as under:-",,

“18A. Concessions.- Following concessions shall be allowed to the ex-servicemen for making them eligible for employment:-,,

(i) if minimum qualifying of pass marks in individual paper and/or in aggregate marks, wherever prescribed to qualify the competitive examination for",,

any post, relaxation of five percent or as prescribed in relevant service rules, whichever is higher shall be given to the ex-servicemen.â€​",,

A bare look at the said provision would reveal that the relaxation has been provided in minimum qualifying marks in the competitive examinations for,,

any post. Admittedly there is no competitive exam held for the post of Teacher Gr.III and the provision prescribed only pertains to minimum marks at,,

the graduation. In view thereof, the said provision has no application.",,

A submission was made by counsel representing the exservicemen â€" petitioners that the advertisement provides for relaxation of 5% marks under,,

Clause 9.4 (supra) to candidates of other result category i.e. SC/ST, OBC, MBC and PH besides widows and divorcees and, therefore, the petitioners",,

are also entitled to such relaxation as they also have been provided reservation as exservicemen. The said submission also has no substance, inasmuch",,

as, under Clause 11.2 of the advertisement, which deals with the provisions of reservation, a specific stipulation by way of clarification has been made",,

that the provisions of notification dated 17.04.2018 shall apply.,,

In view thereof, the petitioners â€" ex-servicemen cannot claim anything beyond Rule 18-A of the Rules of 1998, which, as already observed",,

hereinbefore, has no application, insofar as the relaxation of marks in minimum eligibility criteria at graduation is concerned.",,

In view of the above discussion, as the petitioners have obtained less than 50% marks in graduation and have taken admission in B.Ed. course after",,

31.08.2009, as per the NCTE Regulation dated 29.07.2011 and the directions in the case of Sushil Sompura (supra), they are ineligible for the post of",,

Teacher Gr. III (Level-II) and, therefore, are not entitled to any relief in the present writ petitions.",,

Consequently, the writ petitions filed by the petitioners are dismissed.",,