- (1.) The writ petition was filed before this Court by private respondents 16 to 23 seeking to challenge an advertisement issued by the Regional Joint Director of Education on 27 September 2014 for selection and appointment of Assistant Teachers in physical education in L.T. grade in Government Intermediate Colleges and Government Girls Intermediate Colleges. Under the advertisement, the prescribed qualification was a diploma in physical education from a recognized institution. Rule-8 of the U.P. Subordinate Educational (Trained Graduate Grade) Service Rules 1983 laid down the academic qualifications for holding the post of Assistant Master/ Mistress in physical education as a Bachelors Decree from a recognized university or any degree recognized by the Government or equivalent thereto and a diploma in physical education.
(2.) The private respondents who had filed the writ petition before the learned Single Judge were all candidates who had completed a Bachelor's degree in Physical Education. Their case was that under the National Council for Teachers Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations 2001, the prescribed qualification for a teacher in physical education was a graduate degree together with a Bachelor's Degree in physical education or its equivalent. Since the advertisement which was issued by the State, prescribed a qualification at variance with the qualification required under the Regulations framed by NCTE, in 2001, a writ petition was filed. The relief claimed included a mandamus for considering candidates with the B.P.Ed Decree for appointment as Assistant Teachers in L.T. grade.
(3.) The learned Single Judge has, inter alia, relied upon a judgment of a Division Bench of this Court in Prabhat Kumar Vs. State of U.P.(Special Appeal Defective No. 1275 of 2013.) decided on 16 December 2013. The view which the learned Single Judge has taken, following the judgment of the Division Bench is as follows: "Thus the ratio of the aforesaid judgment is very clear i.e. qualification for appointment as teachers of pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or college, by whatever name called, established, run, aided or recognised by Central Government or by State Government or a local of other authority must necessarily be those that are stipulated under the Act of 1993 as amended from time to time and the regulations and notifications issued thereunder. The contrary qualification prescribed by the State Government under rules framed by it have to give way to the qualifications prescribed by N.C.T.E., as aforesaid. In view of the provisions of Article 309 of the Constitution of India and a catena of decision on this issue it is trite that service Rules made under the proviso to Article 309 have to give way to statutory regulations made under a legislative enactment. Reference may be made in this regard to the case A.B. Krishna Vs. State of Karnataka, 1998 3 SCC 495. In this case there is a clear contradiction in the qualification prescribed by the State under the Service Rules made by it under the Proviso to Act 309 of the Constitution of India and that prescribed by N.C.T.E. Under the Act of 1993. Thus the Service Rules of 1983 made under the proviso of Article 309 will have to give way to the statutory regulations made by N.C.T.E. Under Section 32(2) of the Act of 1993, especially in view of the provisions of the Act of 1993, as the field relating to prescription of qualification of teachers of institutions in question is covered by the Act of 1993".;