- (1.) THESE writ petitions were initially decided on 10.5.2011, however, aggrieved by the judgment, special appeals were preferred before the Division Bench which were decided by the judgment dated 17.10.2011 in DB Civil Special Appeal (Writ) No.836/2011 and cognate matters with the following observations, which are quoted thus - "Learned counsel for the parties have agreed that it is necessary to determine the question whether candidates possessing B.P.Ed. qualification are eligible for appointment on the post of Physical Training Instructor, Grade III. This question was left open by the Single Bench, while directing the respondents to prepare separate lists as per the application forms for the posts of Physical Training Instructor, Grade II and III. There may be difficulty in drawing even separate lists, until and unless the question, whether the candidates possessing B.P.Ed. Qualification can be appointed as Physical Training Instructor, Grade III, particularly for primary teaching, is decided. This question is also required to be gone into whether State Government could have ordered inclusion of B.P.Ed. qualification in the zone of eligibility for appointment on the post of Physical Training Instructor, Grade III, when it was not so mentioned in the advertisement and there may be certain incumbents, possessing the said qualification might not have applied for the post of Physical Training Instructor, Grade III. In these circumstances, we find that all these questions are necessary to be decided.
(2.) THUS, the counsel for the parties have rightly agreed to furnish additional pleadings with respect to whether B.P.Ed. Course can be treated as equivalent to C.P.Ed. Course and whether skill acquired by B.P.Ed. Course is similar to one acquired by C.P.Ed. Course and the candidates possessing B.P.Ed. qualification can be permitted to claim their selection against the post of Physical Training Instructor, Grade III, particularly for primary teaching. Effect of qualification prescribed under NCTE Regulations 2001 is also required to be considered." Perusal of the judgment reveals that the question as to whether the candidates possessing the qualification of B.P.Ed are eligible and State Government could have issued directions of inclusion of B.P.Ed. qualification in the zone of eligibility for appointment to the post of Physical Training Instructor Gr III (for short 'PTI Gr.III') when it was not so mentioned in the advertisement and there may be certain incumbents possessing said qualification might not have applied for the said post, are required to be decided. The parties were given liberty to furnish additional pleadings on the issue as to whether B.P.Ed. Course can be treated equivalent to C.P.Ed. Course etc. On remand of the case, it was heard afresh on all the issues which include the issue framed by the Division Bench. Therein, not only relevant provisions of law but the judgments on the issue were considered and decided by this court and none of the parties made reference about the amendment in the Rajasthan Education Subordinate Service Rules, 1971 vide Notification dated 9.12.2011. This court vide its judgment dated 1.2.2012 held that nobody can be held eligible contrary to the provisions of law. Referring to provisions of the National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in School) Regulations, 2001 (for short 'the Regulations of 2001'), where Second schedule of the Regulations of 2001 provides for minimum qualification for the post of PTI thus referring to those Regulations, it was held that the candidates in possession of the qualification other than provided in the Regulations cannot be treated to be eligible. The Single Bench decided other issues as well while delivering the judgment dated 1.2.2012. Against the said judgment dated 1.2.2012, appeals were preferred and thereupon learned Division Bench decided the appeals vide order dated 30.3.2012 with the following directions :- "Heard counsel appearing on behalf of the parties. Applications have been filed in DB SAW Nos. 220/2012, 311/2012 and 329/2012 seeking leave to file appeals. Applications are disposed of. Permission to file appeals is accordingly granted. Amendment, which was made in Rajasthan Education Subordinate Service Rules, 1971, was not brought into the notice of the Single Bench. As such, counsel appearing on behalf of the parties have rightly agreed that impugned order be set aside and the Single Bench be directed to consider the effect of the Amendment, which was made in Rajasthan Education Subordinate Service Rules, 1971 and thereafter to render fresh decision. As agreed by the parties, impugned order is set aside. Cases are remitted to the Single Bench. Office is directed to list the cases before appropriate Bench in the week commencing 09.04.2012. Appeals are allowed. Stay applications are disposed of. Parties to bear their own costs." By virtue of the aforesaid judgment, it is second remand of the petitions on an issue which was not raised while arguing the matters before the Single Bench on two occasions. It is agreed by the parties that all other issues argued before the learned Single Judge earlier and already decided thus while deciding these writ petitions afresh judgment on those issues are not required to be repeated in this judgment.
(3.) PRESENTLY, this court is to decide the issue which has been argued after second remand of the matters. However, it would be relevant to narrate few brief facts of the cases in order of dates. 1. The Rajasthan Public Service Commission issued an advertisement for recruitment to the post of PTI Gr II and III vide advertisement dated 3.9.2008. 2. A corrigendum in the advertisement was issued on 22.9.2009 directing the candidates to appear for the post for which they possess requisite qualification/ training. 3. On 4.10.2009, RPSC conducted joint competitive examination for both the posts namely PTI Gr II and PTI Gr III. After competitive examination on 4.10.2009, Government of Rajasthan issued an order on 6.1.2010 directing that the candidates with higher qualification of B.P.Ed. and D.P.Ed. would be eligible for the post of PTI Gr II and III. The writ petitions were thereafter filed to challenge the order on many grounds as well as the ground that the order of the State Government is after competitive examination thus it is illegal and has deprived many such candidates who are having qualification as given in the letter dated 6.1.2010 but did not apply in absence of clarification to that effect in the advertisement. 4. For the fist time, writ petitions were allowed vide judgment dated 10.5.2011. 5. On 17.10.2011, first remand was made by the Division Bench to decide the issue as to whether inclusion of B.P.Ed. qualifications for the post of PTI Gr II and III is valid or not. 6. The writ petitions were allowed on second occasion vide judgment dated 1.2.2012. 7. There is second remand by the Division Bench vide order dated 30.3.2012. It is in reference to the amendment in the Rajasthan Education Subordinate Service Rules, 1971 vide Notification dated 9.12.2011. The issue which has now been raised by learned counsel for the respondents is as to whether the amendment in the Rules of 1971 vide Notification dated 9.12.2011 can be ignored so as to eliminate B.P.Ed. and D.P.Ed. qualification for the post of PTI Gr II and III. This court has already decided the issue holding that B.P.Ed is not one of the qualifications prescribed for appointment as Physical Teacher at elementary level i.e. PTI Gr III. The qualification of B.P.Ed is prescribed for appointment as PTI Gr II which is at the level of Secondary/ High School. ;