Someshwar Harsh vs State of Rajasthan

We have heard Mr. Vikas Kabara, learned counsel for the petitioner, Mr. S.K. Gupta, learned Additional Advocate General for the State and Mr. S.N. Kumawat, learned counsel for the respondent No. 3-Rajasthan Public Service Commission, Ajmer (hereinafter referred to as the ''RPSC'').

By this writ petition, the petitioner has prayed for directions to declare the amendment dated 16.04.2010 in the Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter referred to as the ''Rules of 1971'') so far it prescribe the amendment in the Schedule-I, entries at serial No. 8(a)(I-b), unconstitutional and ultra vires and the provisions of National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2001 and 2003 (hereinafter referred to as ''Regulations of 2001'' and ''Regulations of 2003'') as null and void; in the alternative, the petitioner has prayed for a direction for implementation and operation of the notification dated 26.07.2012 pursuant to the Rajasthan Education Subordinate Service (Amendment) Rules, 2012 to be declared to apply retrospectively with effect from 18.07.2008.

An advertisement was published by the RPSC on 31.05.2011 inviting applications for the vacant posts of Senior Teacher Grade-II, including 2373 posts of Senior Teacher Grade-II (Science). At the relevant time, the Rules provided the essential qualifications to be a Graduate Degree with Biology, Botany and Chemistry and a Degree in Teachers Training or Diploma with a practical knowledge of Hindi in ''Devnagari Lipi'' and the knowledge of culture of Rajasthan.

The petitioner is graduate with Environmental Biology, Botany and Chemistry as the subjects, in which he pursued graduate studies. It is submitted that the qualifications prior to 16.04.2010 did not prescribe Zoology, Botany and Chemistry as the subjects in the graduation. The qualifications prescribed include Graduate Degree, or an equivalent degree in any of two optional subjects in Zoology, Botany and Chemistry from a recognized University and B.Ed. or an equivalent degree. By a notification dated 26.07.2012, the qualifications for the post of Senior Teacher Grade-II (Science) were amended as follows:

"2. Amendment of Schedule-I-In Schedule-I appended to the Rajasthan Educational Subordinate Service Rules, 1971, under the heading "Section F General Teachers", the existing clause (a) in column number 4 against serial number 8(a) shall be substituted by the following, namely:-

"(a-i) For posts at serial number 1,2,3 and 5 in column number 2-

Graduate or equivalent examination with concerned subject as optional subject, and Degree or Diploma in Education recognized by National Council for Teacher Education.

(a-ii) For posts at serial number 4 in column number 2-

Graduate or equivalent examination with at least two of the following subjects as optional subjects : Physics, Chemistry, Zoology, Botany, Micro-Biology, Bio-technology and Bio-chemistry, and Degree or Diploma in Education recognized by National Council for Teacher Education"."

It is submitted that under the Regulations of 2001, the qualifications prescribed for Secondary/High School Teachers is Graduate with B.Ed. or its equivalent or four years'' integrated B.Sc., B.Ed. or an equivalent course. The qualifications prescribed under the Rules of 1971, are not in consonance with the qualifications prescribed by the Regulations of 2001 under the National Council for Teacher Education Act, 1993. In the alternative, learned counsel for the petitioner submits that since he was qualified in accordance with the qualifications prescribed prior to 16.04.2010 and subsequent to 26.07.2012, when the mistake made by the State Government was corrected, he should be deemed to be qualified for appointment.

We are not impressed with the submissions, inasmuch as, for recruitment in the public services, a person to be treated eligible must hold the qualifications as prescribed in the statutory Rules on the date when the advertisement is made.

The qualifications prescribed on the date of the advertisement, included, Bachelor''s Degree with Biology, Botany and Chemistry. The petitioner was admittedly not qualified in accordance with the Rules of 1971 on the date when the advertisement was issued and thus, his application was rightly rejected.

It is submitted that the law laid down in Basic Education Board, U.P. Vs. Upendra Rai and Others, holding that the qualifications prescribed by the Regulations of 2001 under the NCTE Act are applicable for recruitment of teachers therein and not for teachers to be appointed in schools, has been referred by the Division Bench of the Supreme Court to the Larger Bench in Irrigineni Venkata Krishna vs. Government of Andhra Pradesh [ 2009(7) Supreme 259]. The Division Bench has expressed doubt over the view taken in Upendra Rai''s case (supra) and had referred the following question to the Larger Bench:

"5. Having given our thoughtful consideration, in our view, it would be in fitness of things, if these appeals are heard by a three-Judge Bench for authoritative pronouncement on the following questions of law:

Whether NCTE Act only deals with the teachers training institutes and the power conferred upon the National Council for Teachers Education u/s 12(d) of that Act in laying down guidelines in respect of minimum qualifications for a person to be employed as a teacher is confined to such institutes i.e., teachers training institutes]

If answer to the aforesaid question is in negative, whether the Regulations framed in exercise of the powers u/s 32(2)(d)(i) read with Section 12(d) of NCTE Act by the National Council for Teacher Education laying down qualifications for employment of teachers in primary schools is binding on the state government and in view thereof, the state government is denuded of its authority to enact qualifications for appointment as teachers in primary schools?

The reference made by the Supreme Court to a larger bench, is an expression for a doubt for clarification of law laid down in the earlier judgments by the Supreme Court and thus, the reference by itself will not give any right to the petitioner to claim any relief from the High Court.

We do not find that the qualifications prescribed between 16.04.2010 to 26.07.2012 had any relevance for teaching Science subjects in the Secondary Education in the schools in the State of Rajasthan. The requirement of Graduate Degree in Biology, Botany and Chemistry was essential for recruitment as Senior Teacher Grade-II (Science). The petitioner does not possess the Graduate Degree in these subjects. He had opted for an Environmental Biology as a subject in graduation, which is not one of the subjects in graduation required for the purpose of recruitment as Senior Teacher Grade-II (Science).

The writ petition has no merit and is, accordingly, dismissed.