F.I.Rebello, C.J. - (1.) The questions referred to this Full Bench and which we have re-framed for consideration are: (a) Whether the degree obtained by a student from an institution/university established by law, situate at a place out side the State of Uttar Pradesh but duly recognized by the N.C.T.E. can be refused acceptance as valid qualification for being admitted to Special B.T.C. Course-2008 by the State? (b) Whether the classification under the Government Order between the degree of B.Ed, obtained from other State being valid for admission to B.T.C. Course-2008, while the degree of C.P.Ed., B.P.Ed, and D.P.Ed, similarly obtained from the institutions situate outside the State of Uttar Pradesh being invalid for considered for admission to B.T.C. Course-2008 is arbitrary and without any reasonable rational and therefore hit by Article 14 of the Constitution of India? (c) Whether the Division Bench judgment in the case of Vijay Kumar Kushwaha and others v. State of U.P and others, (2003) 3 UPLBEC 2211, lays down the correct law?
(2.) A learned Single Judge of this Court, while hearing the writ petition of applicants, who had applied for admission to Special B.T.C. Course, 2007 in Jitendra Kumar Soni and others v. State of U.R and others, in Civil Misc. Writ Petition No. 3733 of 2009, noted that their candidature had been rejected only on the ground that they had obtained a degree of Bachelor of Physical Education (B.P.Ed.)/Diploma of Physical Education (D.P.Ed.) from the colleges/University situate outside the State of Uttar Pradesh in view of the terms and conditions of the Government Order dated 14th November, 2008, regulating admission to B.T.C. Course-2007. By that order, only the students, who had passed their B.P.Ed./ D.P.Ed. from the institutions situate in the State of Uttar Pradesh were alone entitled to apply for Special B.T.C.-2007. This condition was challenged before the learned Single Judge on various grounds, which can be enumerated as under: "(a) The degree obtained by the petitioners is from a recognized University established by law, although situate outside the State of Uttar Pradesh. Such degree cannot be discriminated viz-a-viz the degree granted by an University of the State of Uttar Pradesh. It is, therefore, submitted that the classification itself is arbitrary. Reference in that regard has been made to the judgment of the Hon'ble Supreme Court in the case of Dr. B.L Asawa v. State of Rajasthan and others, AIR 1982 SC 933 (Para 10). (b) It is contended that the condition imposed, referred to above, results in complete exclusion of students, who have obtained identical qualification from the Universities outside the State of Uttar Pradesh. He submits that although the State can exercise preference in respect of the students, who have obtained degree from the institutions within the State of Uttar Pradesh, but such preference cannot be so extensive so as to completely exclude all the students, who have obtained degree from the institution of other States, i.e. total exclusion. In support thereof he has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Dr. Sachin D. Kulkarni and others v. State of Maharashtra and others, (1989) 2 SCC 250. (c) There is no reasonable justification for accepting the degree of B.Ed. granted by the Universities situate outside the State, while refusing the B.P.Ed., C.P.Ed. and D.P.Ed. degree granted by University situate outside the State. It is stated that in some cases the B.Ed. and B.P.Ed. and D.P.Ed. degrees have been granted by the same University situate outside the State." On behalf of the State, reliance was placed on the judgment in the case of Rajeshwar Singh v. State of U. P. and others (Writ Petition No. 2856 (M/S) of 2004, where the following question was referred for consideration of the Full Bench : "1. In Upendra Rai's case reported in 2000 (2) UPLBEC 1340, the Division Bench of this Court has held that the restrictions imposed by the State Government are not valid and B.T.C. Certificate for appointment on the post of Assistant Teacher issued by an institute situated outside the State of U. P. but recognized by the N.C.T.E. is valid. The other Division Bench's judgment of this Court reported in (2003) 3 UPLBEC 2211 in Vijay Kumar Kushwaha's case, upheld the Government rights as well as Government Order which provides that the State has got right not to admit a candidate for appointment as Assistant Teacher in case the training certificate is provided by an institute situated outside the State of U.P. The proposition of law as per Vijay Kumar Kushwaha's case have been reiterated in Lalit Kumar Dixit's case reported in 2004(2) ESC 745 (All) which division bench, out of two lay down the correct law?" The Full Bench noted that the Supreme Court in the case of U.P. Basic Education Board v. Upendra Rai, (2008) 1 UPLBEC 641, has reversed the judgment of this Court in the case of Upendra Rai (supra) and upheld the finding of the Division Bench in Kushwaha's case (supra). It was contended before the Full Bench that since the special leave petition filed by the Board has been allowed and the judgment and order of the Division Bench of this Court in the case of Upendra Rai has been reversed, it logically follows that law laid down in the case of Vijay Kumar Kushwaha (supra) is the , correct law and, therefore, in terms of the judgment of the Division Bench in the case of Vijay Kumar Kushwaha (supra) the restriction imposed under the Government Order qua non-consideration of the candidates, who have obtained C.P.Ed, and B.P.Ed. Degree, from Institutions from outside the State of Uttar Pradesh, has to be upheld. Reference has also been made to the judgment of the Hon'ble Single Judge in the case of Hena Afroj v. State of Uttar Pradesh and others, in Writ Petition No. 2933 of 2004, wherein similar restriction in respect of B.T.C. Course 2004 has been upheld. Standing Counsel further submitted that it is within the competence of the State to lay down the policy guidelines for admission to Special B.T.C. Course 2008. The State in its wisdom has decided to consider only those candidates who have obtained C.P.Ed., B.P.Ed. and D.P.Ed. degree from the institutions situate within the State of Uttar Pradesh. Such policy decision cannot be examined under Article 226 of the Constitution of India nor can it be said to be violative of Article 14 of the Constitution of India, as has been held by the Division Bench of this Court in the case of Viijay Kumar Kushwaha. The learned Single Judge after having considered the arguments and the judgment of the Supreme Court in the case of U.R Basic Education Board (supra) was pleased to note that one aspect still requires consideration, which reads as under : "The issue as to whether the State is competent to put any such restriction and as to whether when there is no such restriction with regard to the candidates who have obtained the B.Ed, degree from out side the State of Uttar Pradesh could the B.P.Ed., C.P.Ed, and D.P.Ed, be excluded has arisen for consideration in this case. The question which has been referred to in the Full Bench has direct bearing on the issues which have been raised in this writ petition. When the issues which have arisen for consideration in this case have already been referred to the Full Bench, it is appropriate that these writ petitions be finally decided after the above reference is answered." From a reading of the judgment of the Division Bench in the case of Vijay Kumar Kushwaha as well as the judgment of the Hon'ble Supreme Court in the case of U.R Basic Education Board v. Upendra Rai, this Court finds that the issue, as noticed above, has not been examined and the competence of the State Government to impose such restrictions in respect of the B.P.Ed., C.P.Ed., and D.P.Ed. degree only while accepting the B.Ed. degree granted by out of State Universities still needs to be examined." Accordingly, the learned Single Judge, made the reference of the first two questions, which we have re-produced earlier.
(3.) The matter was placed before a learned Division Bench. That Division Bench was pleased to note that the judgment in Vijay Kumar Kushwaha v. State of U.R and others, (2003) 3 UPLBEC 2211, which had upheld the restrictions imposed by the Government Order for admission to B.T.C. course was required to be re-considered for the reasons set out therein and accordingly, referred a 3rd question and in view of that, the matter was placed before the Chief Justice, for constituting a Larger Bench.;