Vinod Kumar S/o Ram Kumar vs State Of Rajasthan And Ors

This writ petition has been filed by the petitioner aggrieved against non-consideration of his candidature for the post of Physical Training Instructor Gr.-III despite having the qualification of B.P.Ed. 3 years' course as per the advertisement dated 04.05.2018.

It is, inter alia, indicated in the writ petition that respondent issued advertisement dated 04.05.2018 for recruitment on the post of P.T.I. Gr.-III. It is indicated that as per the qualifications prescribed in the advertisement the petitioner fulfills the eligibility as laid down in Ganesh Narayan Mali & Ors. v. State of Rajasthan & Ors. : S.B.C.W.P. No. 15721/2015, decided on 07.01.2016.

Submissions have been made that the respondents have not included the qualification of B.P.Ed. 3 years' course in the recruitment process depriving the petitioner for being considered for such recruitment pursuant to the advertisement dated 04.05.2018. Based on the submissions, the relief as noticed herienbefore, has been claimed.

A reply to the writ petition has been filed by the respondent- State, inter alia, indicating that the requisite qualification in terms of Rules of 1971 is B.P.Ed. recognized by National Council of Teacher Education ('NCTE') and as the petitioner is having qualification of 3 years' degree in Physical Education, he is not eligible.

Reliance has been placed on a Notification dated 09.12.2011 (Annexure-R/1), whereby, Rajasthan Educational Subordinate Service (Amendment) Rules, 2011 were notified. Submissions have been made that no direction has been issued in the case of Ganesh Narayan Mali (supra) as claimed by the petitioner for treating the petitioner's qualification as equivalent.

The petitioner, by way of subsequent affidavits has produced further material seeking to substantiate the claim. The respondents have also produced an additional affidavit in this regard.

It is submitted by learned counsel for the petitioner that as the petitioner holds degree of Bachelor of Physical Education (3 years' degree course) from Sant Gadge Baba Amravati Vidhyapeeth, he is eligible for appointment to the post of P.T.I. Gr.-III. It is submitted that the qualification as prescribed in the Rules is B.P.Ed. or C.P.Ed. or D.P.Ed. in Physical Education recognized by NCTE.

With reference to judgments in Dhananjay Malik v. State of Uttaranchal & Ors. : AIR 2008 SC 1913, Manjit Singh v. State of Punjab & Ors. : CWP No. 451/2008, State of Rajasthan & Ors. v. Hari Ram & Ors. : 2001 (1) WLC (Raj.) 124, Rajendra Singh v. State of Rajasthan & Ors. : S.B.C.W.P. No. 4821/2004, decided on 22.07.2005, Manju Kumari v. State & Ors. : 2014 (3) WLC (Raj.) 374 and Ganesh Narayan Mali (supra) submissions were made that action of the respondents in not treating the case of the petitioner as equivalent is not justified.

Learned counsel for the respondents while relying on Manoj Kumar Verma v. R.P.S.C., Ajmer & Ors. : D.B. Special Appeal (Writ) No. 601/2014, decided on 22.08.2014 and Ganesh Narayan Mali & Ors. v. State & Ors : D.B. Special Appeal (Writ) No. 340/2016, decided on 02.06.2016 submitted that Division Bench of this Court has categorically laid down that B.P.E. cannot be held to be equivalent to be B.P.Ed. and, therefore, the petitioner is not entitled to any relief.

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

In the case of Ganesh Narayan Mali (supra) a Single Judge of this Court referring to the judgment in the case of Manoj Kumar Verma (supra), inter alia, laid down as under:-

"It is admitted by learned counsel that the issue of eligibility of those candidates holding qualification of BPE was decided earlier by this court. It is, however, a fact that subsequent to the earlier recruitment, NCTE has made amendment in the Regulations. As per amended provision, a candidate holding qualification of BPE is also eligible for appointment to the post of PTI Gr II/ PTI Gr III. The question would however be as to whether amended provision can be applied to the recruitment initiated in pursuance to the advertisement dated 18.9.2013 i.e. much prior to the amendment in the Regulations. It is more so when amendment in the Regulations is not retroactive. It is being subordinate legislation, applies prospectively in the light of the judgment of the Hon'ble Supreme Court in the case of "P Mahendran & ors versus State of Karnataka & ors", AIR1990SC405. It was held by the Apex Court that any amendment in the rules subsequent to the advertisement would not govern process of selection, rather, amendment would apply to the future selection. In the light of the aforesaid judgments, it can safely be held that though amendment under the Regulations have been made by the NCTE but much subsequent to the advertisement thus would not apply to the present selection.

It is even for the reason that rules of game cannot be changed in midst of selection as has been held by the Hon'ble Supreme Court in the case of "K Manjusree versus State of Andhra Pradesh & anr", AIR2008SC1470. Therein, the government made changes in the conditions of selection in the midst of selection but was not approved by the Supreme Court. In view of above, if the non-petitioners are directed to make appointment in pursuance to the amended Regulations much subsequent to the advertisement then it would be nothing but to allow change in the rules of game in the midst. The State Government is not otherwise accepting the candidates holding the qualifications of BPE to be eligible thus for all these reasons, the plea raised by the private respondents cannot be accepted.

Learned Senior Advocate Mr Ashok Gaur has made reference of certain paras of the judgment in the case of Manu Kumari (supra) where liberty was given to the NCTE and the State Government to make amendment or issue instructions for eligibility of BPE holder and, according to him, amendment in the Regulations of the NCTE has been made as was directed by this court or for which liberty was given thus to be applied to the present recruitment.

I find that even if in the earlier judgment, a liberty was given to the State Government or the NCTE to make amendment or issue instructions and in compliance thereof, necessary amendment has been made, it cannot be applied retrospectively.

It is even for the reason that while issuing advertisement, qualification of BPE was not included thus a candidate holding the qualification of BPE may not have applied for the post leaving others who applied for the post by default, like the private respondents. If, now, it is decided held that the candidates holding the qualification of BPE are also eligible, it would deprive those candidates who did not apply for the post in reference to the advertisement being law abiding. Thus, if the plea raised by private respondents is accepted, it will cause discrimination with those who did not apply after going through the qualification given in the advertisement though are similarly placed like the private respondents.

For all these reasons given above, I am unable to accept the plea raised by the learned counsel for private respondents and as the State Government has decided not to include the candidates holding the qualification of BPE to be eligible, no further direction is required on the aforesaid issue."

It was emphasized by learned counsel for the petitioner that in the case of Ganesh Narayan Mali (supra) the Single Judge did not accept the plea as the Notification was issued before the requisite amendment made by the NCTE and as now the advertisement has been issued subsequent to the amendments made by the NCTE, the qualification would have to be taken into consideration for according appointment.

The argument sought to be raised by learned counsel for the petitioner apparently cannot be accepted in view of the Division Bench judgment in the case of Ganesh Narayan Mali (supra), wherein, in an appeal arising from the judgment of the learned Single Judge in the case of Ganesh Narayan Mali (supra), the said issue was dealt with by the Division Bench in following terms:-

"The main thrust of submission of Mr.Ashok Gaur, Senior Counsel and other counsel is that candidates who are holding the qualification of BPE (3 year degree) are at least eligible for being appointed in the light of the Notification issued by the NCTE dt.12.11.2014 amending the Second Schedule in reference to sub-reg.(2) of Reg.(4) of its Regulations and laying down the minimum academic & professional qualifications for the post of PTI Gr.II and Gr.III respectively and in terms of the amendment Notification dt.12.11.2014, the holders of BPE become eligible for the post of PTI Gr.II and Gr.III and further submit that the State Government is under an obligation to make necessary amendment under the scheme of Rules, 1971 and their further submission is that in the case of Manoj Kumar Vs. State of Rajasthan reported in 2014 (3) CDR 1572 (Raj.) observations were made by the Division Bench of this court and liberty was granted to the NCTE and the State Government to amend the Rules and keeping the observations of the Division Bench of this court into consideration, once amendment has been made by the NCTE under its Regulations vide Notification dt.12.11.2014, it is the duty of the State authorities to give it full respect and the present amendment will certainly apply to the selection process in question and their further defence is that the NCTE vide its letter dt.15.07.2015 made its intention clear that BPE holders (3 years degree) are holding equivalent qualification and are eligible to hold the post of PTI Gr.II and Gr.III and there appears no reason to out-list them from the selection process which was initiated by the Commission pursuant to the advertisement dt.18.09.2013.

The State Counsel and other contesting respondents jointly opposed the submission made and submit that BPE holders (3 years degree) could not be held to be eligible in view of the judgment of Division Bench of this Court in the case of Manoj Kumar (supra) and further submit that in the light of the judgment of this court, the question which has been raised is no more remains res integra and open for consideration in the instant proceedings.

It is not disputed by the contesting parties that the issue as regards the eligibility of those candidates who are holders of BPE (3 year degree) has been decided by the Division Bench of this court in the case of Manoj Kumar (supra). However, the submission is that subsequent to the earlier recruitment, the NCTE has made amendment in the Regulations, 2014 vide Notification dt.12.11.2014 and as per the amendment Notification, the holders of BPE become eligible to hold the post of PTI Gr.II and Gr.III and the question for consideration is whether the amendment Notification dt.12.11.2014 would have any effect as regards selection process initiated pursuant to the advertisement dt.18.09.2013 i.e. much prior to the amendment in the Regulations were notified by the NCTE. The legal position has been settled that the selection process once initiated indicating eligibility in question, any later amendment, if made, will not be of any significance and the process has to be completed in terms of the conditions of eligibility laid down in the advertisement and this what the Apex Court has held in P.Mahendran & Ors. Vs. State of Karnataka & Others reported in AIR 1990 SC 405 and that apart we consider it appropriate to quote the amendment Notification dt.12.11.2014 notified by the NCTE, pursuant to which the minimum academic & professional qualifications for the post of PTI Gr.II and Gr.III have been amended in November, 2014 by the statutory authority and the same read ad infra:-

"Second Schedule

{See Sub-regulation (2) of Regulation (4)}

The National Council for Teacher Education (Determination of Minimum Qualifications for Persons to be recruited as Physical Education Teachers in Primary, Upper Primary, Secondary, Senior Secondary on Intermediate Schools or Colleges) Regulations, 2014.

LEVEL

MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS

Primary and Upper Primary (For Classes I to VIII)

(1) Senior Secondary (Class XII or its equivalent) with at least 50% marks from recognized board

Or

Candidates who have passed the Senior Secondary examination (+2) or its equivalent and have participated in sports/games at least school/college/district level in accordance with the and National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 notified on 10.12.2007}

Or

Senior Secondary (Class XII or its equivalent) with at least 45% marks from recognized board {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002

And

(b) Certificate/Diploma in Physical Education of duration not less than two years (or its equivalent) from any National Council for Teacher Education recognized institution.

2.Secondary, High School (For Classes IXX)

Bachelor's degree with Physical Education or an elective subject with 50% marks

Or

Bachelor's degree with Physical Education as an elective subject with 45% marks and participation in National or State or Inter-University competitions in sports or games or athletics recognized by Association of Indian University or Indian Olympic Association

Or

Bachelor's degree with 45% marks and having participated in National or State or Inter-University sports or games or athletic.

Or

For deputed in-service candidates (i.e. trained Physical Education Teachers/Coaches) - Graduation with 45% marks and at least 3 years of teaching experience as per National Council for Teacher Education (Recognition Norms & Procedure) Regulations, 2009

Or

Graduate in Physical Education with 40% marks

Or

Graduate with Physical Education as an elective subject with 40% marks

Or

Graduate who participated school, Inter-Collegiate in sports/games or passed NCC 'C' Certificate in accordance with the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 notified as 10.12.2007

Or

Graduate in Physical Education i.e. B.P.Ed. Course (or its equivalent) of 3 years duration

Or

Graduate having represented State/University in sports/games/ athletics

Or

Graduate who has secure 1st, 2nd or 3rd position in Inter-Collegiate sports/games tournaments/possessing NCC 'C' Certificate or passed basic course in Adventure Sports

Or

Graduate with one year training programme in Sports Science, Sports Management, Sports, Coaching, Yoga, Olympic Education, Sports Journalism etc. {in accordance with the National Council of Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulation, 2002 notified on 13.11.2002

And

(b) Bachelor of Physical Education (B.P.Ed) of at least one year duration (or its equivalent) from any National Council for Teacher Education recognized Institution.

3.Senior Secondary/ Intermediate for Classes XI-XII)

Bachelor of Physical Education (B.P.Ed.) or Bachelor of Physical Education (BPE) or Bachelor of Science (B.Sc.) in Health and Physical Education and Degree in Sports with at least 55% marks as per National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2009.

Or

At least 50% marks in the B.P.Ed. Degree/B.P.Ed. (Integrated) 4 years professional degree in accordance with the and National Council for Teacher Education (Recognition Norms and Procedure) Regulation, 2007 notified on 10.12.2007}

Or

B.P.Ed. with at least 55% marks or B.P.E. Course (or its equivalent) of 3 years duration with at least 50% marks in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002.

And

(c) M.P.Ed. of at least 2 years duration from any National Council for Teacher Education recognized institution.

Even when we look into the amendment Notification of NCTE dt.12.11.2014, as regards the post of PTI Gr.III (Primary & Upper Primary Education) for classes I to VIII is concerned, BPE (3 year degree) is still not the minimum academic & professional qualification in holding a candidate eligible. At the same time, as regard the post of PTI Gr.II (Secondary & High School) for classes IX & X and for Senior Secondary/ Intermediate for Classes XI-XII is concerned, apart from B.P.E., B.P.Ed. and M.P.Ed. Are also the prescribed professional qualification required to consider a candidate eligible to hold the post of PTI Gr.II.

Thus, in totality of the factual matrix of the case, a holder of BPE (3 year degree) in itself in absence of a professional qualification is not eligible for the post of PTI Gr.II or PTI Gr.III, as the case may be, either in the pre-amendment Regulations, 2011 or in the post-amendment Regulations, 2014 which are introduced by the NCTE vide amendment Notification dt.12.11.2014....."

In view of the categorical pronouncement of the Division Bench specifically taking into consideration the submissions regarding the effect of amendment made by NCTE, as noticed hereinbefore, the plea raised in this regard cannot be countenanced.

In view of the above, the various pleas sought to be raised by learned counsel for the petitioner and seeking to make submissions, which are contrary to the dictum laid down by the Division Bench in the case of Ganesh Narayan Mali (supra) cannot be countenanced.

In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.