Munishwar Nath Bhandari, J. - (1.) A bunch of writ petitions was decided by this Court by a common judgment. The aforesaid judgment was challenged before the Division Bench mainly on the ground that as to whether candidates possessing qualification of Bachelor of Physical Education (for short "B.P. Ed.") are eligible for appointment to the post of Physical Training Instructor Gr. III (for short "the PTI Gr. III") has not been decided. Considering all the relevant aspects, the Division Bench remitted the matter back to this Court by setting aside the judgment. The petitions have been placed before this Court accordingly and now, with the consent of all the parties as well as learned counsel for the intervenor, they have been heard finally and decided by this common judgment. It is a case where Rajasthan Public Service Commission (for short "the RPSC") issued an advertisement for recruitment to the post of PTI Gr. II and PTI Gr. III vide advertisement dated 03.09.2008. The separate codes were provided for two posts with further direction to submit separate applications. The qualification for two posts were also mentioned in the advertisement. The petitioners as well as the intervenors appeared in selection and thereupon, result was declared. The controversy arose when pursuant to the combined competitive examinations for two posts, the candidates were placed in the select list ignoring their application for a particular post as well as qualification. This was even ignoring the fact that by corrigendum dated 22.09.2009, it was directed that applicants should appear in the selection to the post for which they clarified that if anybody will appear in the selection with the wrong post code then his result would be declared in that code only. The RPSC issued select list wherein even the candidates, who had not applied for post of PTI Gr. III were declared qualified to that post. Same is the position for the post of PTI Gr. II. The action of the respondents was challenged by maintaining various writ petitions. Therein, a further issue was raised as to whether a candidate can be held eligible for a post even if he/she is not in possession of required qualification, as given in the Rules. These matter were earlier considered by the Coordinate Bench wherein it was held that those candidates, who did not apply for the post of PTI Gr. HI, yet their names are placed in select list to the said post is illegal. Same way, those, who had not applied for the post of PTI Gr. II, should not have been shown in the select list for the said post. The outcome of the judgment was that select list should have been prepared from and amongst meritorious candidates for the post, for which they had applied. The issue as to whether candidates with qualification of B.P. Ed. are eligible for appointment on the post of PTI Gr. III was left open. The challenge to the aforesaid judgment sustained before the Division Bench as the crucial issue as to whether candidates with the qualification of B.P. Ed. are eligible for the post of PTI Gr. III was required to be decided.
(2.) LEARNED counsel for petitioners submit that advertisement provides different qualification for the post of PTI Gr. II and PTI Gr. III and which is same as provided under the Rajasthan Educational Subordinate Service Rules, 1971 (for short "the Rules of 1971"). The respondent RPSC made it clear that candidates should appear for the post for which they possess qualification, but contrary to the aforesaid, the candidates holding B.P. Ed. degree were selected for the post of PTI Gr. III though aforesaid is not the qualification provided under the Rules or in the advertisement for the post of PTI Gr. III. The equivalence of the qualification or to treat B.P. Ed. qualification holder to be eligible for the post of PTI Gr. II & Gr. III was given by the Government vide their letter dated 06th January, 2010 though no such authority exists with the State and otherwise, the eligibility criteria cannot be changed in the midst of selection. The RPSC issued select list wherein candidates holding of qualification of B.P. Ed. were also placed in the list of PTI Gr. III and thereby, the eligible candidates holding the required qualification of Certificate of Physical Education (for short "C.P. Ed.") were deprived to get appointment. In the case of K. Manjusree v. State of Andhra Pradesh & Anr. reported in : (2008) 2 SCC 512, it is held that selection criteria should be prescribed in advance and Rules of the game should not be changed afterwards. In the case of Hemani Malhotra v. High Court of Delhi reported in : (2008) 7 SCC 11, change in Rules during the selection process was held to be impermissible. Recently, same view has been taken by this Court in the case of Narootam Meena & Anr. v. The State of Rajasthan & Ors. in SB Civil Writ Petition No. 17251/2011 decided on 14.12.2011. Accordingly, the Circular of the Government dated 06.01.2010 should not have been made applicable to the selection of the year 2008 and the aforesaid circular should otherwise be treated as nullity being in contravention to the statutory Rules of 1971. It is further urged that applications were required to be submitted by the candidates taking note of the qualification mentioned in the advertisement. However, the Government permitted B.P. Ed. qualification holders to be eligible for the post of PTI Gr. III by issuing the Circular dated 06.01.2010, which is much subsequent to the advertisement of the year 2008 and many candidates holding the qualification of B.P. Ed. could not presume that such a circular would be issued by the Government in future so as to make them eligible for the post of PTI Gr. III thus to apply for that post because advertisement does not provide B.P. Ed. qualification for the post of PTI Gr. III. As per the reply given by the Government and even the Circular shows that it is only at the instance of those, who applied for the post of PTI Gr. III though holding the qualification of B.P. Ed. and knowing it well that it is not the requisite qualification under the Rules of 1971 and given in the advertisement. By their default, they applied for the post of PTI Gr. III and the Government has agreed to grant benefit to those defaulters, that too, when it is in conflict with the Rules of 1971. By change of eligibility in the midst, those candidates holding the qualification of B.P. Ed. but did not apply for the post of PTI Gr. III in anticipation of any amendment in the qualification are deprived to get the appointment to that post. In the aforesaid background, the Circular dated 06th January, 2010 is nothing but to bestow favour to few in a discriminatory manner.
(3.) IT is further urged that after coming into effect of the National Council for Teacher Education Act, 1993 (for short "NCTE Act of 1993") the recruitment on the post of Teachers has to be made after taking note of the qualification provided under National Council for the Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in School) Regulation, 2001 (for short "the Regulations of 2001") notified by the Council in the year, 2001 and so amended in the year 2003. The respondents failed to notice the aforesaid. The NCTE is an expert and competent body to provide qualification for recruitment to the post of Teachers. The issue regarding the qualification of teachers came up for consideration before the Division Bench of this Court in the case of Kailash Chandra Harijan v. State of Rajasthan & Ors. reported in, 2006 (1) RLR 665. Therein, the Government was given specific direction to modify/frame the Rules to make it in conformity to the qualification provided in schedule appended to the Regulation of 2001 though the aforesaid direction was in reference to the post of Teacher Gr. III, but applies to all the posts falling under the Regulations of 2001. The respondent department failed to amend the service rules so as to make it in conformity to the Regulations of 2001. This is more so when mandate was there to amend the rules within a period of three years from the date of notification of Regulation of 2001. The selection of B.P. Ed. qualification holder to the post of PTI Gr. III goes contrary to the Regulation of 2001 as therein only C.P. Ed. Qualification holder with other qualifications are entitled to the post of PTI Gr. III as the aforesaid post is meant up -to elementary level of schools. The B.P. Ed. qualification holder are eligible for the post of PTI Gr. II as the aforesaid post is meant at the level of secondary/high school. The respondents failed to carry out the mandate of the Regulation of 2001 and of the NCT Act, 1993.;