Gujarat High Court
Ketankumar Shanabhai Kotwal vs State Of Gujarat on 22 July, 2022
Bench: Bhargav D. Karia
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12008 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 12009 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 12010 of 2017
==========================================================
KETANKUMAR SHANABHAI KOTWAL & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
SR ADV MR GAUTAM JOSHI WITH MR VYOM H SHAH(9387) for the
Petitioner(s) No. 1,2
MR MEET THAKKAR, AGP for the Respondent(s) No. 1
MS. KRUTI M SHAH(2428) for the Respondent(s) No. 3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/07/2022
COMMON CAV ORDER
1. In this group of three petitions, the
petitioners have challenged the action of the
respondent No.2-District Panchayat Service
Selection Committee in deleting the name of
the petitioners from the Select List and
including the names of the candidates having
educational qualification other than what is
prescribed in para 3.1 of the advertisement
which requires a candidate to possess either
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
two or three years Diploma in Agriculture or
Bachelor degree in Rural Studies.
2. As the facts in all these three petitions are
similar, the same were heard analogously and
are being disposed of by this common order.
For the sake of convenience, facts are taken
from Special Civil Application No. 12008 of
2017 treating it as a lead matter.
2.1 The petitioners are having the
qualification of Bachelor in Rural Studies
[for short 'BRS'] from the recognized
university.
2.2 The respondent No.2-District
Panchayat Selection Committee issued
advertisement inviting application for the
post of Gram Sevak in November 2016. The
advertisement prescribed the requisite
qualification to be Diploma in Agriculture of
either two or three years or Bachelor in
Rural Studies.
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
2.3 The petitioners preferred online
application pursuant to the said
advertisement and petitioners thereafter
appeared and cleared the written test and
name of the petitioners appeared in the
provisional list published by the respondent
No.2.
2.4 It is the case of the petitioners
that when the petitioners were called for the
verification of documents, they were conveyed
that the candidates having prescribed
qualification as per Clause 3 of the
advertisement were only the eligible
candidates. However, when the select list was
prepared by the respondent No.2, the names of
the petitioners did not appear in the Select
List but names of some other candidates who
were not having the prescribed qualification
of either two year or three year Diploma in
Agriculture or BRS were included in the
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
Select List. The petitioners, therefore,
preferred these petitions challenging the
action of the respondent No.2.
3. After issuance of the notice by this Court,
the petitioners sought amendment to join
respondent Nos. 3 and 4 who have been
appointed on the post of Gram Sevak
possessing the Degree of BSc [Agriculture]
which according to the petitioners, is not a
valid degree as per the Recruitment Rules and
the advertisement issued. By order dated
07.02.2020, the draft amendment was granted
joining the respondent Nos. 3 and 4 in the
petitions.
4. It appears that Special Civil Application No.
12008 of 2017 was decided by this Court along
with the other group of matters in which, the
question as to whether the candidates from
zone of consideration eligible for
appointment of Gram Sevak can be eliminated
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
on the ground that the Degree of BRS in
subject of Home Science even though the
relevant Rule prescribed the qualification to
be the Degree of BRS without any further
specification. The petitioners therefore
preferred Misc. Civil Application No.1 of
2018 for review of the aforesaid judgement
dated 23.02.2018 on the ground that the facts
of the present petition was different and
could not have been included in the group of
petitions decided by the Court as the issue
arising in this petition pertains only to the
consideration of the petitioners as eligible
candidates having degree in BRS. This Court
[Coram: Hon'ble Mr. Justice N.V.Anjaria], by
order dated 29.01.2019, allowed the Misc.
Civil Application for review recalling the
order dated 23.02.2018. Similar order was
passed in Special Civil Application Nos.
12009 of 2017 and 12010 of 2017.
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
5. Heard learned Senior Advocate
Mr. Gautam Joshi assisted by learned advocate
Mr. Vyom Shah appearing for the petitioners
in all the matters, learned advocate
Mr. H.S.Munshaw for respondent No.2, learned
advocate Ms. Kruti Shah for respondent No.3
and learned advocate Mr. Mehul Sharad Shah
for respondent No.3 in Special Civil
Application No. 12010 of 2017, learned
Assistant Government Pleader Mr. Meet
Thakkar. Learned advocates for the respective
parties concluded their arguments and the
matters were kept for orders.
6. Learned Senior Advocate Mr. Joshi submitted
that the petitioners are having requisite
qualification of BRS as per the advertisement
issued by respondent No.2 for the post of
Gram Sevak. He invited the attention of the
Court to the Clause No. (3.1) prescribing the
educational qualification for the appointment
of Gram Sevak which reads as under:
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
"A candidate shall possess-
(i) either two years or three years
diploma in Agriculture or Bachelor in
Rural studies obtained from any of the
university estalished or incorporated by
or under the central or state Act in India
or any other educational institutions
recognized as such or declared as Deemed
university under section 3 of the
University Grants Commission Act, 1956;
(ii) the basic knowledge of computer
applications as prescribed in the Gujarat
Civil Service Classification and
Recruitment (General) Rules, 1967;
(iii) adequate knowledge of Gujarati or
Hindi or both."
6.1 Referring to the aforesaid criteria
for educational qualification, it was
submitted that the candidates who have either
two years or three years Diploma in
Agriculture or Bachelor in Rural Studies
degree obtained from any of the University
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
are only considered to be eligible for the
post of Gram Sevak.
6.2 Learned Senior Advocate Mr. Joshi
thereafter referred to the provisional merit
list published by the respondent No.2 and
pointed out that the names of the petitioners
are included in the said list. It was
submitted that though the petitioners are
eligible for appointment as Gram Sevak having
qualification of BRS, could not have been
denied to be considered for selection and on
the other hand, names of some other
candidates who did not possess two years or
three years in Diploma in Agriculture or BRS
were included in the final Select List and
thereafter respondent Nos.3 and 4 are
appointed as Gram Sevak which is arbitrary
illegal and unauthorized contrary to the
advertisement issued by respondent No.2 for
purpose of employment of the recruitment of
Gram Sevak. It was further submitted that the
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
Select List prepared by the respondent No.2
is in operation for two years as per the
Government Resolution dated 24.12.2008.
Learned Senior Advocate Mr. Joshi also
referred to the order dated 02.06.2017 passed
by this Court in Special Application No. 7223
of 2017 and other allied matters directing
the respondents to keep one post vacant for
each petitioner for the recruitment of the
Gram Sevak.
6.3 In support of his submissions,
learned Senior Advocate Mr. Joshi referred to
and relied upon the decision in case of
Changalal Nareshkumar Laxminarayan vs. State
of Gujarat [Special Civil Application No.
1780 of 2007] reported in 2016 SCC online GUJ
7167 wherein, this Court while considering
the similar issue with regard to
qualification of C.P.Ed [Certificate in
Physical Education] held that the candidates
having qualification of B.P.Ed [Bachelor of
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
Physical Education], D.P.Ed [Diploma in
Physical Education] could not have been
appointed as they were not possessing the
requisite qualification of C.P.Ed for the
post in question. It was therefore submitted
that the respondent No.2 also could not have
appointed respondent Nos. 3 and 4 who are not
having requisite qualification as prescribed
in the advertisement.
6.4 Learned Senior Advocate Mr. Joshi
also relied upon the decision of the Division
Bench of this Court in case of Gujarat Public
Service Commission vs. Dhanjibhai Savjibhai
Maru and another reported in 2014 2 GLR 1218
wherein it is held that when the requirement
of law in the Rules for recruitment is that
the candidate must have actual degree and not
an equivalent degree, he cannot claim right
by getting equivalent degree and he should
not be held to be holding eligible
qualification.
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
6.5 Further reliance is based on the
decision of Supreme Court in case of Prakash
Chand Meena and ors vs. State of Rajasthan
reported in 2015 (8) SCC 484 wherein
upholding the view of the learned Single
Judge it is held that the recruitment process
must be completed as per the terms and
conditions in the advertisement and as per
the Rules existing when the recruitment
process began. In the facts of the said case,
it was held that the Division Bench could not
have gone into examining the issue whether
B.P.Ed and D.P.Ed qualification are
equivalent or superior to C.P.Ed
qualification when the advertisement
prescribed the qualification for recruitment
as per the Rules.
6.6 Reliance is also placed on the decision
in case of Yogesh Kumar and others vs.
Government of NCT Delhi and ors. reported in
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
(2003) 3 SCC 548 wherein the Apex Court in
the facts of the said case held that B.Ed
qualification, although a well recognized
qualification in the field of teaching and
education- being not prescribed in the
advertisement, only some of the B.Ed.
candidates took a chance to apply for the
post cannot be given entry in the field of
selection. It was held that merely because
primary teacher can also earn promotion to
the post of teachers to teach higher classes
and for which B.Ed is prescribed
qualification, it cannot be held that B.Ed is
higher qualification than Teacher Training
Certificate.
7. Learned advocate Mr. H.S.Munshaw, on the
other hand, submitted that the case of the
petitioners was considered on merits and the
grievance made by the petitioners that the
persons who were selected and appointed as
Gram Sevaks and not holding the qualification
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
as per the advertisement is not true and
are holding higher qualification of BSc
[Agriculture] and therefore, they are holding
the qualification of more than a Diploma in
Agriculture and hence, they are found
eligible as Gram Sevak.
7.1 It was submitted that notification
dated 30.12.2014 provides for Gram Sevak,
Class- III in the Superior Panchayat Service
Recruitment Rules, 2014 and Rule 3(b)
provides educational qualification which are
same as published in the advertisement. It
was further pointed out that the candidates,
who are selected and appointed as Gram
Sevaks, are found eligible taking into
consideration their educational qualification
and in all 52 posts were to be filled up as
per the advertisement and first provisional
list of 82 candidates was declared and
thereafter additional provisional list of 94
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
candidates was also published and out of the
said list, 46 candidates are issued
appointment orders on the basis of their
merits after considering the roster system
keeping six posts vacant as the candidates
were holding the qualification of University
situated outside the State of Gujarat.
7.2 Learned advocate Mr. Munshaw relied
upon the further affidavit filed on behalf of
the respondent No.2 to point out from the
statement annexed thereto indicating the
names of the candidates who are selected and
later appointed as Gram Sevak pursuant to the
advertisement issued in the year 2016. It was
further pointed out that the two persons
against whom the petitioners have raised
objection, notices have been issued by the
District Agriculture Officer, Aravali
District Panchayat against which two more
persons have preferred petitions in the year
2021 being Special Civil Application Nos.
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
1217 of 2021 and 1213 of 2021 which are
pending for adjudication.
7.3 It was further submitted by learned
advocate Mr. Munshaw that the contention
raised by the petitioners that candidates
holding qualification of BRS and/or Diploma
in Agriculture are only eligible for
appointment in accordance with the
Recruitment Rules of 2014 is baseless as the
candidates having higher qualification cannot
be debarred from competing for the post of
Gram Sevak as contended by the petitioners.
It was submitted that the candidates having
higher qualification are always welcome in
the interest of public at large. Reference
was made to the statement annexed with the
further affidavit filed by respondent No.2 to
point out the details about the subjects qua
the course of (I) BRS (II) Department of
Agriculture and (III) BSc [Agriculture] to
point out that the subjects studied by the
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
student of different courses clearly shows
that the student of BSc [Agriculture] studies
as many as 69 subjects in four years whereas
the student of Diploma in Agriculture studies
only 16 subjects in two years and therefore,
more qualified candidates are in a position
of rendering better service to the public at
large. In support of his submissions, learned
advocate Mr. Munshaw relied upon the
following decisions:
(I) Mohd. Riazul Usman Gani and Ors vs.
District and Sessions Judge, Nagpur reported
in 2000 (2) SCC 606 wherein the Hon'ble
Supreme Court held that the laying of
criteria when there are large number of
candidates is permissible but that criteria
must be reasonable and not arbitrary having
regard to the post for which the recruitment
is made. It was further held that the
criteria which has effect of denying the
candidate is to be considered for the post on
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
the ground that he is having higher
qualification than prescribed cannot be
rational. The Supreme Court however with a
rider that such rule has to be applied to the
facts of the said case and should not be
taken to be a rule of universal application.
(ii) Reliance was placed on the decision
of Chaklesh Sarswat vs General Manager, U.P.
State Road Transport reported in 1995
(Suppl) 4 SCC 597 wherein the Hon'ble
Supreme Court held that in the facts of the
said case of compassionate appointment it is
not proper for the Courts to compel the
authority to appoint a person on particular
post on the basis of possessing merely a
minimum qualification and person with higher
qualification can be considered for the post
when it suggest that qualification for such
appointment are broadly of commensurate with
level of the candidates who further
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
themselves for appointment and not merely
the minimum qualification.
(iii) Reliance was also placed on the
decision of Life Insurance Corporation of
India and vs Triveni Sharan Mishra reported
in (2014) 10 SCC 346 wherein relying on the
decision of Mohamad Riyaz Ul Usman
Gani(supra) it is held that in absence of
certain maximum qualification in addition to
possession of minimum qualification, a
person with higher qualification can be
considered eligible for appointment.
8. Learned advocates Mr. Mehul Sharad Shah and
Ms. Kruti Shah for the respondent Nos. 3 and
4 in respective petitions, who are appointed
as Gram Sevak pursuant to the advertisement
issued by the respondent No.2, submitted that
such persons are not at fault as they are
considered eligible by the respondent No.2 as
they were having higher qualification than
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
that of two years or three years diploma
course or BRS and as such, there is no
irregularity in their appointment.
8.1 It was further submitted that as
they are already appointed on the post of
Gram Sevak irrespective of the outcome of the
petitions, their appointment should not be
disturbed as they are appointed in accordance
with the Recruitment Rules of 2014 which do
not prescribe for maximum qualification. It
was submitted that the Rules only provide for
minimum qualification and therefore, as the
respondent Nos. 3 and 4 who are appointed
having higher qualification cannot be
considered as ineligible for the post of Gram
Sevak. It was pointed out that the
respondents Nos. 3 and 4 have studied more
subjects in four years of Bachelor of
Agricultural Science than that of the
petitioners who are having qualification of
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
BRS having only 12 subjects as pointed out by
the respondent No.2 in the further affidavit.
9. Considering the submissions made by learned
advocates, the short question which arises
is, whether the persons having higher
qualification could have been considered
eligible for the post of Gram Sevak when the
Recruitment Rules of 2014 as well as
advertisement stipulates the requisite
qualification.
10. The issue about interpretation of Rule 3 of
the Recruitment Rules, 2014 as well as the
advertisement issued by respondent No.2 came
up for consideration before the learned
Single Judge as well as the Division Bench of
this Court with regard to question of
interpretation of the degree of BRS with Home
Science subject. It would therefore be
germane to refer to the decision of the
Division Bench whereby the decision of the
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
learned Single Judge was reversed in Letters
Patent Appeal No. 349 of 2018 in Special
Civil Application No. 11445 of 2017 and other
allied matters to consider as to how Gujarat
Panchayat Service came to be constituted and
the way in which various amendments are made
from time to time in the Statutory Rules.
"11. We have given our thoughtful
consideration to above facts and
submissions of learned counsel for the
parties. This Court in the case of
Rathodbhai J. Dungarbhai and Others v.
State of Gujarat and Others reported in
1995 (1) GLH 180 had an occasion to
deliberate on the issue as to how Gujarat
Panchayat Services came to be constituted
and the way in which it has undergone
change as per amendment of statutory
rules from time time and it was observed
as under:-
"8. The aforesaid is sought to be made
good by reference to the history of
formation of Panchayat Raj in the State
of Gujarat from 1-4-1963 and as to how
Gujarat Panchayat Services came to be
constituted. Since reference to the
history of the cadre is pressed into
service by Mr. R. M. Chhaya, Ld. AGP
and Mr. P. M. Raval, Ld. Addl. AG I
shall now proceed to set out the
history of cadre of Gram Sevak, and the
way in which it has undergone sea-
change on amendment of statutory rules,
from time to time.
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
Cadre of Gram Sevak, its Constitution &
Reconstitution:
9. Initially,recruitment to the cadre
of Gram Sevak was governed by the
Gujarat Panchayat Services
(Classification)& Recruitment) Rules,
1957 (hereinafter referred to as
'Rules of 1967").The recruitment to
the post of Gram Sevak was to bemade
by (i) nomination and (ii) by
promotion Talati-cum-Gram Panchayat
Mantris in the ratio of 2:1. In order
to be eligible for appointment by
nomination a candidate shall possess
(a) vernacular final pass with diploma
of an Agrl. schoolor Matriculation/SSC
examination passed. It is also
stipulated that preference shall be
given to candidates having higher
qualifications/experience in the field
of social service, knowledge of
agricultural practice, background
ofvillage life and working knowledge
of local language will be considered
asadditional qualification. It was
also stipulated that those candidates
who arecalled for selection will have
to appear for qualifying written: test
at their own expenses. Recruitment
examination for the post ofGram Sevak
shall be conducted by the Dist.
Panchayat Services Selection Committee
in accordance withrules framed by the
State Govt. in that behalf.
10. It is required to benoted that at
the initial stage there was a separate
cadre of Agri. Asstt. and recruitment
rules forthis cadre were prescribed.
Under the Rules Agrl. Asstts. were
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
categorised into Gr. I, II & III.
Appointment to the post of Agrl.
Asstt. Gr. III was to bemade by direct
recruitment from amongst the
candidates who have successfully
completed two years course in
agriculture. Appointment to the post
of Agrl. Asstt. Gr.I & II was to be
made by promotion of persons from Gr.
II & IIIrespectively in order of
seniority and merit.
11. In the year 1977-'78,Dr. Benor's
scheme was sponsored by the World Bank
for upliftment of agricultural produce
in the State of Gujarat. In order to
implement the scheme it was found
necessary by the State Govt. that it
should be implemented at the
grassroot-level and tillers and
farmers were required to be imparted
knowledge of the said scheme. With
this object in mind and for the best
and expeditious implementation of Dr.
Benor's scheme the State Govt.
abolished common cadre of Gram Sevak
and two separate cadres, namely, Gram
Sevak (Multipurpose) and Gram
Sevak(Training & Visit) were created.
It is because of such creation of new
cadres, new Recruitment Rules were
required to be framed and the State
Govt. vide its notification dated 15-
2-80 inserted new Recruitment Rules
known as"Gujarat Panchayat Services
(Classification& Recruitment) (19th
Amendment) Rules, 1980". Under the new
Rules with effect from the date of
publication of notification following
two cadres of Gram Sevaks, i.e. (i)
Gram Sevak (Multipurpose) and (ii)
Gram Sevak (Training & Visit) are
created. Under the said Rules, it is
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
provided that appointment to the cadre
of Gram Sevak (Training & Visit) shall
be by nomination and by promotion in
the ratio of 85:15. Tobe eligible for
appointment by nomination a candidate
should have at least passed vernacular
final examination with a diploma of
Agrl.School conducted by the Agrl.
University. It is also stipulated that
the candidates who are called for
selection shall have to appear for
qualifying written test at their own
expenses. Appointment by promotion to
the said post shall be made from out
of Talati-cum-Panchayat Mantris who
have atleast passed the vernacular
final examination and have experience
of work at Talati-cum-Mantris in Gram
or Nagar Panchayats at least for five
years.
12. It is also required to be noted that
on creation of new cadre of Gram
Sevaks(Multipurpose) & (Training & Visit)
under Rules of 1980, the Rulesrelating to
recruitment examination for Gram Sevaks
were required to be deleted and new Rules
were required to be introduced. The State
of Gujarat accordingly enacted
Recruitment Examination Rules in the
year1982, and Notification dated 3-3-1982
was published. Accordingly,the Gram Sevak
(Panchayat Service) Recruitment (Exam.)
Rules, 1982 were framed. Under the Rules
of 1982 it is inter alia .provided that
the Gujarat PanchayatAct, 1961 shall hold
written examination for selecting
candidates for recruitment to the post of
Gram Sevak (Multipurpose)and Gram Sevak
(Training & Visit) in the Panchayat
Services. The Rules inter alia
prescribedthe syllabus for examination,
fixation of date and place of
examination,conduct of examination and
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
declaration of result of examination.
Rule 16 of the Rules also provides that
there shall be oral interview for 10
marks from amongst candidates whose
results have been declared under :Rule
15. The Committee is also required to
assign marks for oral interview of
candidates. The Committee is also
expected under Rule 19 to prepare a
select-list which shall cover up existing
vacancies and future vacancies as
notified by the District Panchayats. Rule
19 reads asunder:
"19. Publication of result of selected
candidates :- The Committee shall
publish the select list on the notice
Board of the District Panchayat. The
select-list remain in force till the
result of the next examination is
published."
12. Other paragraphs of the above
judgment as such are not relevant for
the purpose of deciding this appeal
since the subject matter of the writ
petition was about validity of select
list prepared under earlier Rules and
effect of amendment of Rules on
pending select list.
5th May 1988
Orders and notifications (other than
those published in Part IV-B) under
the Gujarat Local Boards, Village
Panchayats, Municipal Boroughs,
District Municipal, Primary Education
and local Fund Audit Acts.
PANCHAYATS AND RURAL HOUSING
DEPARTMENT
NOTIFICATION Sachivalaya, Gandhinagar
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
5th May, 1988 Gujarat Panchayats Act,
1961.
No.KP/9/(88)/PRR/1083/14-KH1. - In
exercise of the powers conferred by
section 323 read with section 203 of
the Gujarat Panchayats Act, 1961
(Guj.VI of 1962) and in suppression of
all notifications issued in this
behalf, the Government of Gujarat
hereby makes the following rules
further to amend to the Gujarat
Panchayat Service (Classification and
Recruitment) Rules, 1967, namely:-
1. These rules may be called the
Gujarat Panchayat Service
(Classification and Recruitment)
Rules, 1988.
2. In the Gujarat Panchayat Service
(Classification and Recruitment)
Rules, 1967, in Schedule-IV.
(i) under the heading "Agriculture
Branch (Executive)" entry 4 relating
to '(Agricultural Assistants' and the
rules made thereunder shall be
deleted;
(ii) under the heading 'Revenue and
Rural Development Branch,(Executive)'
for entry "4 Gram Sevak" and the rules
made thereunder, the following shall
be substituted, namely:-
"4. Gram Sevak:-
(1) Appointment to the post of Gram
Sevak shall be made by direct
selection.
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
(2) To be eligible for appointment b y
direct selection a candidate shall:-
(a) not be more than 30 years of age;
(b) have obtained Agriculture Diploma
or obtained Rural Development Science
Diploma from Krishishala of Gandhi
Vidhyapith, Vedachhi or
(c) have successfully completed two
years course in Agriculture at any
Agricultural Schools under the Control
of the Agriculture University of the
Gujarat State; or
(d) possess a degree of Bachelor in
Rural Studies (Agriculture) of the
Saurashtra University; or
(e) be an Agricultural Snatak of the
Saraswati Gram Vidhyapith, Samoda
Ganawada, District Mehsana.
Explanation: Gram Sevak shall consist
of the Gram Sevaak (Training and
Visit), Gram Sevak Multipurpose) and
Agriculture Assistant."
By order and in the name of
the Government of Gujarat.
S.H.SHAH
Deputy Secretary to Government.
Government Central Press,
Gandhinagar.
26.11.1992
Educational Qualification
(I) A Diploma in Agriculture obtained
from the State Agriculture University
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or have successfully completed two
years course in Agriculture at any
school under the control of the
Agriculture University of the Gujarat
State; or
(ii) A degree in Rural Studies
(Agriculture) obtained from the
Saurashtra University; or
(iii) A bachelor degree or Diploma in
Rural Studies of the institution
recognized by the Government of
Gujarat for the purpose of
recruitment.
GRAM SEVAK (CLASS III) (PANCHAYAT
SERVICE RECRUITMENT RULES, 1998
Notification
No.KP/96/98/PRR/1197/1811/9-9/D,Dt.19.
11.98, Published in G.G.G. Ext.Pt.1-A
dated 19.11.98 P.84-1)
1. These rules may be called the Gram
Sevak (Class III) (Panchayat Service)
Recruitment Rules, 1998.
2. Appointment to the post of Gram
Sevak (Class III) (Panchayat Service)
shall be made by direct selection.
3. To be eligible for appointment by
direct selection to the post mentioned
in rule 2, a candidate shall,
a. not be less than 18 years and not
more than 28 years of age,
b. possess:-
i. a Diploma in Agriculture obtained
from the State Agricultural University
or a Certificate of successfully
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
completed two years course in
Agriculture at any Agriculture School
under the Control of the Agricultural
University of the Gujarat State; or
c. have adequate knowledge of Gujarati
and Hindi,
4. A selected candidate shall be on
probation for a period of one year.
5. A selected candidate shall be
required to undergo such training for
such period and pass such post-
training examination as may be
prescribed by the Government.
6. A selected candidate shall be
required to pass the departmental
examination and an examination in
Gujarat or Hindi or both as may be
prescribed by the Government.
7. A selected candidate shall be
required to furnish a security and
surety bond in such form for such
amount, and for such period as may be
prescribed by the Government.
PART I-A
Orders and notifications (other than
those published in Part IV-B) under
the Gujarat Local Boards, Village
Panchayats, Municipal Boroughs,
District Municipal, Primary Education
and local Fund Audit Acts.
PANCHAYATS AND RURAL HOUSING
DEPARTMENT NOTIFICATION
Sachivalaya, Gandhinagar 13th August,
2010 GUJARAT PANCHAYAT ACT, 1993
No.KP/14-2010-PRR-102009-2839-PART-1-D
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:- In exercise of the powers conferred
by section 227 read with section 274
of the Gujarat Panchayats Act, 1993
(Guj.18 of 1993), the Government of
Gujarat hereby makes the following
rules further to amend the Gram Sevak
(Class-III) (Panchayat Service)
Recruitment Rules, 1998, namely:-
(1) These rules may be called the Gram
Sevak (ClassIII) (Panchayat Service)
Recruitment (Amendment) Rules, 2010.
(2) In the Gram Sevak (Class-III)
(Panchayat Service) Recruitment Rules,
1998, (hereinafter referred to as "the
said rules") in rule 3, in clause
(b), after sub-clause (I) the
following new sub-clause shall be
inserted namely:-
"(ii) a degree in Rural Studies
obtained from any of the Universities
established or incorporated by or
under the Central or State Act in
India; or any other educational
institution recognized as such or
declared as deemed University under
section 3 of the University Grants
Commission Act, 1956 or possess an
equivalent qualification recognized by
the Government."
(3) In the said rules, after rule 4,
the following shall be inserted,
namely:-
"4A. The candidate appointed by direct
selection shall, during his probation
period be required to undergo pre-
service training and to pass the post
training examination in accordance
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with the rules as may be prescribed by
the Government."
By order and in the name of
the Governor of Gujarat C.S.RAJPAL,
Deputy Secretary to Government.
PART I-A
Orders and notifications (other than
those published in Part IV-B) under
the Gujarat Local Boards, Village
Panchayats, Municipal Boroughs,
District Municipal, Primary Education
and local Fund Audit Acts.
PANCHAYATS AND RURAL HOUSING
DEPARTMENT NOTIFICATION
Sachivalaya, Gandhinagar 30th
December, 2014 GUJARAT PANCHAYAT ACT,
No.KP/116 of
2014/PRR/102013/1864/KH:- In exercise
of the powers conferred by section 227
read with sub-section (5) of section
274 of the Gujarat Panchayats Act,
1993 (Guj.18 of 1993) and in
supersession of all the rules made in
this behalf, the Government of Guajrat
hereby makes the following rules to
provide for regulating the recruitment
to the post of Gram Sevak, Class-III,
in the Superior Panchayat Service,
namely:-
1. These rules may be called the Gram
Sevak, Class III, in the Superior
Panchayat Service Recruitment Rules,
2014.
2. Appointment to the post of Gram
Sevak, Class III, in the Superior
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Panchayat Service shall be made by
direct selection.
3. To be eligible for appointment by
direct selection to the post mentioned
in rule-2, a candidate shall-
(a) not be less than 18 years and not
be more than 30 years of age:
Provided that the upper age limit may
be relaxed in favour of a candidate
who is already in the Gujarat
Panchayat Service in accordance with
the provisions of the Gujarat
Panchayat Services Classification and
Recruitment (General) Rules, 1998:
Provided further that the upper age
limit may also be relaxed in favour of
a candidate who is already in the
service of the Government of Gujarat
in accordance with the provisions of
the Gujarat Civil Services
Classification and Recruitment
(General) Rules, 1967;
(b) possess-
(i) either two years or three year
Diploma in Agriculture or Bachelor in
Rural Studies obtained from any of the
Universities established or
incorporated by or under the Central
or State Act in India or any other
educational institutions recognized as
such or declared as Deemed University
under section 3 of the University
Grants Commission Act, 1956;
(ii) the basic knowledge of computer
application as prescribed in the
Gujarat Civil Services Classification
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
and Recruitment (General) Rules, 1967;
and
(iii) adequate knowledge of Gujarat or
Hindi or both.
4. Notwithstanding anything contained
in any rules, a candidate selected by
direct recruitment under rule 3 shall
be appointed on contractual basis for
a period of five years on such terms
and conditions as prescribed by the
Government Resolution, Panhayats,
Rural Housing and Rural Development
Department Resolution No.KP-12-201 -
PPR - 102010-2530-D, Dated 15-06-2011.
5. A candidate appointed under rule 4
shall be given the prescribed pay
scale of the post of Gram Sevak, Class
III after completion of contractual
period on his performance being found
satisfactory during the stipulated
period of service on contract basis.
6. A candidate appointed in accordance
with rule 4 shall, during the
stipulated period of service on
contractual basis, be required to pass
the ccc examination for computer
knowledge in accordance with the
provisions of the Gujarat Civil
Services Computer Competency Training
and Examination Rules, 2006.
7. A candidate appointed in accordance
with rule 4 shall, during the
stipulated period of service on
contractual basis, be required to
undergo pre-service training and pass
the posttraining examination in
accordance with the rules as may be
prescribed by the Government.
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8. A candidate appointed by direct
selection shall required to pass an
examination in Hindi or Gujarati or
both in accordance with the rules
prescribed by the Government.
9. A candidate appointed by direct
selection shall have to undergo such
training and to pass such examination
as may be prescribed by the
Government.
10. A candidate appointed by direct
selection shall be required to furnish
a security and surety bond in such
form, for such amount and for such
period as may be prescribed by the
Government.
By order and in the
name of the Governor of Gujarat,
I.M.SHAIKH,
Joint Secretary to Government.
13. The above rules reveal framing of
recruitment Rules for Gram Sevak from
time to time and it is to be noted
that the post is 'Gram Sevak' and has
to perform duties in rural areas and
is exclusively not restricted to
agriculture or likewise activities.
From 1982 onwards requirement of
Diploma in Agriculture from a
recognized University has remained
consistent while alternative
educational qualification viz. a
Degree in Rural Studies (Agriculture)
from Saurashtra University or a
Bachelor Degree or Diploma in Rural
Studies of an institution recognized
by the Government of Gujarat was
subject to necessary changes.
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14. Thereafter, vide notification
dated 13.8.2010 amendment was carried
out in the Recruitment Rules of 1998
by adding sub-clause in Rule 3 (b)
after sub-clause (i), whereby a decree
in Rural Studies obtained from any of
the Universities established or
incorporated by or under Central or
State Act in India or any other
educational institutions recognized as
such or declared as deemed University
under Section 3 of the University
Grants Commission Act, 1956 or any
equivalent qualification recognized by
the Government came to be added. Here
also no specific requirement of a
degree in Rural Studies with
specialization in Agriculture was
required. So far as Notification dated
30.12.2014 is concerned for which the
recruitment is undertaken and form
part of all these appeals, two years
of three years Diploma in Agriculture
has remained as one of the educational
qualifications but alternatively
Bachelor in Rural Studies without any
suffix viz. specific requirement of
Agriculture as the main or primary
subject is not appearing in the Rules.
Thus, it is clear that nowhere
Recruitment Rules for the post of
'Gram Sevak' of 2014 as a whole
mandate qualification of Bachelor of
Rural Studies exclusively for the
subject of agriculture.
15. The above position of law is to be
examined in the context of the
Government of Gujarat Resolution dated
10.11.2000 (page 256 in LPA 350 of
2018) whereby it is resolved to chart
out a job chart for Gram Sevaks. The
preamble of the resolution suggested
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that in the year 1952 a cadre of Gram
Sevaks was constituted in the
administrative setup as a result of
consolidated development programme at
the village level. According to the
resolution, the Gram Sevaks had to
carry out various duties in connection
with agricultural production and
various other activities connected
thereto. The preamble further
suggested that by virtue of the
resolution dated 05.05.1988, the
cadres of Gram Sevak (multipurpose),
Gram Sevak (training and visit) and
Agriculture Assistant (Panchayat) were
consolidated and made into one cadre
namely that of "Gram Sevaks". In view
of such consolidation of cadres into
one, it was necessary, according to
the resolution to reconstitute the job
chart.
(A) It was therefore resolved by the
resolution under reference that the
consolidated cadre of Gram Sevaks
would be placed under the Taluka
Development Officer. It was further
resolved that a job chart will be so
prepared in consultation with the
Development Commissioner, and the
Director of Agriculture. The District
Development Officer shall reasess the
nature of work of Gram Sevaks. In such
reassessment, the number of
agriculturist, the group of such rural
development groups shall be
considered. The Gram Sevaks would also
have to carry out work relating to
agriculture, bagayat, rural
development and duties concerned with
panchayat and other government
departments. The job chart was
therefore listed with this resolution.
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In brief, there were about 20 such
nature of duties which read as under:
Giving advice on scientific
advancements in the field of
agriculture and co-ordinating between
the agricultural officers and the
farmers so as to see that complete
information reaches the farmer.
To visit the village and be in contact
with agriculturists group and hold
sabhas and disseminate information in
the context of agricultural related
technology.
To maintain registers.
To co-ordinate with the District Rural
Development Agencies to ameliorate the
conditions of families in the village
who are below poverty line.
In accordance with the instructions of
the District and Taluka Development
Officers, to create sources of income
for beneficiaries of various schemes.
Make a concerted effort to see that
the rural mass is uplifted above the
poverty line. To maintain contact with
village folk especially of the lower
caste and down trodden.
The Taluka Development Officer could
also assign duties in context of
implementation of development schemes
for the economic upliftment of
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adivasis / scheduled caste - scheduled
tribes classes.
The Gram Sevak shall also be
responsible for implementation of the
National Rural Employment Schemes.
He shall also carry out such duties as
are necessary and entrusted by the
Taluka Development Officer.
(B) Another Resolution dated
25.01.2006 was framed by the State
and in super-session of resolution
of 10.11.2000, it was resolved that:
The total number of vacant posts would
be entrusted under the control of
Rural Development Department and the
Panchayat and Rural Development
Department shall frame a job chart.
The resolution further stated that the
Gram Sevaks apart from carrying out
duties under the Rural Development and
Krishi Mahotsavs shall also carry out
work related to E-Gram Yojnas.
The job chart enlisted with the
resolution at Schedule-1 was
more or less similar to the one
of the resolution of 10.11.2000,
however, the title to such
schedule stated that the job
chart pertained to Gram Sevaks
(Training and Visit) and Gram
Sevak (multipurpose)
16. Learned Single Judge has
emphasized on study of subject
of Agriculture and other
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
relevant subjects as better
qualification but at the same
time neither the decision in the
case of Rajbirsing Dalal
(supra), nor Chaudhary Kuldeep
Prvainkumar (supra) would apply
in the facts of this case. That
in none of the decisions
requirement of Recruitment Rule
was specific. Besides, the
appellants in this group of
appeals have studied Bachelor of
Rural Studies from a recognized
institution and also passed out
written examination and their
names were placed in provisional
merit list, we are of the view
that no further scrutiny was
permitted at the stage of
preparing final select list
based on study of various
subjects while obtaining Degree
of Bachelor of Rural Studies.
Even otherwise, the appellants
having degree in BRS either from
Home Science or any other branch
contain various subjects of
studies of rural life including
principles of Economy, economics
and Management terms, Rural
Economics and Cooperation, Home
Management, Food Nutrition and
child development which are
basic subjects for upliftment of
the rural masses. So far as duty
chart is concerned, the very
subject containing 35 marks in
the written examination, in
which the appellants have
successfully passed and also to
undergo training, therefore,
when all the appellants in this
group of appeals possess
requisite qualification under
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the Recruitment Rules of 2014,
their names ought not to have
been deleted from the
provisional merit list by
preferring candidates, who
passed out Bachelor of Rural
Studies either in Animal
Husbandry or Dairy Science. Such
exercise was not permissible at
the stage of second scrutiny
which was only meant to verify
genuineness of various
certificates and documents.
17. The first group of appeals
filed by the appellants viz.
Letters Patent Appeal No.349 to
360 and 362 of 2018 and
candidates having Bachelor
Degree in Rural Studies
irrespective of any
specialization, in the facts of
this case, simply BRS or BRS
with Home Science and Management
cannot be given discriminatory
treatment since they possess
requisite educational
qualification for recruitment to
the post of Gram Sevak under
Rule 3 (b) (i) of Rules 2014,
since rule framing authority has
taken a conscious decision to do
away with the requirement of
'agriculture' as specialization
in the Degree of Bachelor of
Rural Studies. Besides, all the
candidates were enlisted in
provisional merit list and after
clearing written examination
which contained 35 marks for
subject of Agriculture out of
total 100 marks and even duty
chart is perused it is not
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
pertaining to agriculture only
but overall function to be
discharged by Gram Sevak for
betterment of rural masses. That
subjects like child and female
nutrition, agricultural
economics, home science
management, food nutrition,
child development, health and
sanitation etc. cannot be said
to be not relevant as against
preference given to those
candidates having Degree of
Bachelor of Rural Studies with
Dairy and Animal Husbandry only.
17.1 Therefore, classification
is held to be rational by
learned Single Judge deserve to
be interfered with in all these
appeals filed by the candidates
having Degree in BRS.
Accordingly, Letters Patent
Appeal Nos.349 to 360 and 362 of
2018 are allowed. To the extent,
as above, order passed by
learned Single Judge impugned in
this group of appeals viz.
Letters Patent Appeal No.349 to
360 and 362 of 2018 is quashed
and set aside. The respondents
are directed to enlist
successful candidates of this
group, whose names have appeared
in the provisional merit list
for further process and based on
individual merit shall be placed
in the final select list, if
they fulfill other requirements
under the Rules and to be
considered for appointment for
the post of Gram Sevak."
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11.In view of the above, now the question which
requires to be considered in these three
petitions is whether the person with higher
educational qualification of Bachelor's
Degree in Agricultural Science can be
considered to be eligible for appointment of
Gram Sevak or not.
12.The Hon'ble Supreme Court in case of Prakash
Chand Meena and ors vs. State of Rajasthan
and ors (supra) had the occasion to consider
as to whether the recruitment is to be
completed as per the terms and conditions in
the advertisement and the Recruitment Rules
as existing when the recruitment process
began or not together with should the
candidates with the qualification other than
what is prescribed in the advertisement be
considered to be eligible or not. In this
context, the Apex Court held as under:
"9. Having heard the parties, we have
also perused the written submissions
filed on behalf of some of them and have
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
perused the judgment of the learned
Single Judge and the impugned judgment
of the Division Bench. In our considered
view, the issue noticed at the outset
must be decided on the basis of settled
law noticed by learned Single Bench that
recruitment process must be completed as
per terms and conditions in the
advertisement and as per rules existing
when the recruitment process began. In
the present case, the Division Bench has
gone to great lengths in examining the
issue whether B.P.Ed. and D.P.Ed.
qualifications are equivalent or
superior to C.P.Ed. qualification but
such exercise cannot help the cause of
the respondents who had the option
either to cancel the recruitment process
if there existed good reasons for the
same or to complete it as per terms of
advertisement and as per rules. They
chose to continue with the recruitment
process and hence they cannot
be [email protected](C)Nos.22345-22346/13
permitted to depart from the
qualification laid down in the
advertisement as well as in the rules
which were suitably amended only later
in 2011. In such a situation, factual
justifications cannot change the legal
position that respondents acted against
law and against the terms of
advertisement in treating such
applicants successful for appointment to
the post of PTI Gr.III who held other
qualifications but not the qualification
of C.P.Ed. Such candidates had not even
submitted separate OMR application form
for appointment to the post of PTI
Gr.III which was essential as per the
terms of advertisement.
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10. The candidates who were aware of the
advertisement and did not have the
qualification of C.P.Ed. also had two
options, either to apply only for PTI
Gr.II if they had the necessary
qualification for that post or to
challenge the advertisement that it
omitted to mention equivalent or higher
qualification along with qualification
of C.P.Ed. for the post of PTI Gr.III.
Having not challenged the advertisement
and having applied for the other post,
they could not have subsequently claimed
or be granted eligibility on the basis
of equivalence clarified or declared
subsequently by the State Government. In
the matter of eligibility qualification,
the equivalent qualification must be
recognized as such in the recruitment
rules or Government order existing on or
before the initiation of recruitment
process. In the [email protected](C)Nos.22345-
22346/13 present case, this process was
initiated through advertisement inviting
application which did not indicate that
equivalent or higher qualification
holders were eligible to apply nor the
equivalent qualifications were reflected
in the recruitment rules or Government
Orders of the relevant time."
13.The Division Bench of this Court in case of
Gujarat Public Service Commission vs.
Dhanjibhai Savjibhai Maru (supra) has held as
under:
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"7. It appears that the word
'equivalent' is not mentioned in subrule
(b), and, therefore, the requirement of
the aforesaid provision is that a
candidate must have a Bachelor's degree in
Arts, Science, Commerce, Agriculture or
Law of a statutory Indian or foreign
University, and thus, there is no scope of
having any equivalent degree. We do not,
for a moment, dispute that B.R.S. degree
may be equivalent to a Bachelor's degree
in Arts, but that is for a limited purpose
as prescribed in the notification or
circular indicated therein. When the
requirement of law in sub-rule (b) is that
a candidate must have actual degree, and
not an equivalent degree as prescribed in
sub-rule (c), he cannot claim that by
getting an equivalent degree, he should be
held to be holding eligible qualification
under sub-rule (b).
8. We have already pointed that the
requirement of sub-rule (c) is B.T./B.Ed.
or an equivalent Degree or Diploma of a
recognized University but for sub-rule
(b), equivalent degree is not the
requirement.
9. So far as the case of Dhanjibhai
Savjibhai Maru is concerned, though he has
obtained a Master of Arts Degree, the same
is not from a 'statutory Indian or foreign
University' but is given by Gujarat
Vidyapith, which is a recognized College
under the University Grants Commission.
Therefore, the said M.A. Degree cannot be
taken into consideration, the same not
being a degree conferred by a statutory
Indian or foreign university but by a
college recognized by the University Grant
Commission. The position would have been
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different if the said petitioner had M.A.
Degree given by any statutory Indian or
foreign University."
14.This Court in case of Changla Nareshkumar
Laxminarayan vs. State of Gujarat and ors
(Supra) while considering the degree of
C.P.Ed equivalent to B.P.Ed and D.P.Ed which
requires completion of graduation as compared
to two years course of C.P.Ed after Standard
12 has held after considering the decision
relied upon by the respondent No.2 as under:
"27. At this stage, let me look into the
decision of the Supreme Court in the case
of Yogesh Kumar and others v. Government
of NCT, Delhi and others [2003 (3) SCC
548]. In this case, the candidates with
the B.P.Ed. degree sought recruitment to
the posts of the Assistant Teachers in the
Primary Schools of the Municipal
Corporation, Delhi. The Division Bench of
the Delhi High Court, by its judgment in
the public interest petition and the
original petition filed by the
B.P.Ed. Candidates, dismissed the claim
of the B.P.Ed. candidates for appointments
to the posts of the Primary Teachers. In
such circumstances, the candidates holding
the B.P.Ed. degree came before
the Supreme Court. The Supreme
Court, while dismissing the appeals,
observed as under:
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"4 The second contention advanced is
that BEd qualification should be
treated as higher qualification
than TTC because primary
teachers recruited on TTC qualification
can get promotion as teachers to teach
higher classes and BEd is the
prescribed qualification for higher
classes.
5 The division bench of the Delhi High
Court in the impugned judgment has
dealt with the above two arguments in
great detail. In our considered opinion
it has rightly come to the conclusion
that B.Ed. qualification, although a
well recognised qualification in the
field of teaching and education
being not prescribed in the
advertisement, only some of the B.Ed.
candidates who took a chance to apply
for the post cannot be given entry in
the field of selection. We also find
that the High Court rightly came to the
conclusion that teacher training
imparted to teachers for B.Ed. course
equips them for teaching higher
classes. A specialized training given
to teachers for teaching small children
at primary level cannot be compared
with training given for
awarding B.Ed. degree. Merely
because primary teachers can also earn
promotion to the post of teachers to
teach higher classes and for
which B.Ed. is the prescribed
qualification, it cannot be held that
B.Ed. is a higher qualification than
TTC. Looking to the different nature of
TTC qualification the High court
rightly held that it is not comparable
with B.Ed. Degree qualification and
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latter cannot be treated as higher
qualification to the former.
6 Lastly, learned counsel for the
appellants urged that undisputedly for
the last several years for recruitment
of primary teachers in Municipal
Corporation Schools, with B.Ed. degree
were considered and appointed. This
long standing practice should be taken
as aid to construe the terms of the
advertisement and particularly clause
B(ii) on which reliance is paced by
B.Ed. candidates to consider them
eligible.
7 In support of the above contention
learned counsel placed reliance on the
decision of this Court in N. Suresh
Nathan vs. Union of India [1992 Suppl.
(1) SCC 584].
8 This last argument advanced
also does not impress us at
all. Recruitment to Public Services
should be held strictly in accordance
with the terms of advertisement and the
recruitment rules, if any. Deviation
from the Rules allows entry to
ineligible persons and deprives many
others who could have competed for the
post. Merely because in the past some
deviation and departure was made in
considering the B.Ed. candidates and we
are told that was so done because of
the paucity of TTC candidates, we
cannot allow a patent illegality to
continue. The recruitment authorities
were well aware that candidates with
qualification of TTC and B.Ed. Are
available yet they chose to restrict
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entry for appointment only to TTC pass
candidates. It is open to the
recruiting authorities to evolve a
policy of recruitment and to decide the
source from which the recruitment is to
be made. So far as B.Ed. qualification
is concerned, in the connected appeals
[CA No. 172628 of 2001] arising from
Kerala which are heard with this
appeal, we have already taken the view
that B.Ed. qualification cannot be
treated as a qualification higher than
TTC because the natures of training
imparted for grant of
certificate and degree are
totally different and between them
there is no parity whatsoever. It is
projected before us that presently more
candidates available for recruitment to
primary school are from B.Ed. category
and very few from TTC category. Whether
for the aforesaid reasons, B.Ed.
qualification can also be prescribed
for primary teachers is a question to
be considered by the authorities
concerned but we cannot consider B.Ed.
candidates for the present vacancies
advertised as eligible. In our view,
the division bench of the Delhi High
Court was fully justified in coming to
the conclusion that B.Ed. candidates
were rightly excluded by the
authorities from selection and
appointment as primary teachers. We
make it clear that we are not called
upon to express any opinion on any
B.Ed. candidates appointed as primary
teachers pursuant to advertisements in
the past and our decision is confined
only to the advertisement which was
under challenge before the High Court
and in this appeal."
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28. A Division Bench of the
Rajasthan High Court in the case
of Dinesh Kumar Panvar and others v.
Suresh Chand and others [Civil Special
Appeal (Writ) No.1181 of 2012 decided on
1st July 2013] had an occasion to consider
almost an identical issue like the case in
hand. In paragraph 14 of its judgment, the
Division Bench noted the contentions
raised by the learned counsel appearing
for the NCTE. In paragraph 14, the Court
observed as under:
"[14] Shri Santanu Sharma, learned
counsel appearing for the NCTE, argued
that issuance of advertisement for
recruitment and undertaking recruitment
for appointment to the post of PTI Gr.
II and PTI Gr. III, lies within the
domain and sphere of respective States.
The NCTE is the central statutory body,
which has been established by enactment
of the Parliament viz., the NCTE Act,
1993. The object and purpose for
establishment of the NCTE is to
ensure planned and coordinate
development of teacher education
system throughout the country. The NCTE
lays down the norms and standards in
respect of minimum qualifications for a
person to be employed as a teacher in
schools or in recognized institutions.
In exercise of powers conferred under
Section 32(2)(d)(i) read with Section
12(d) of the NCTE Act, 1993, the NCTE
has made the Regulations of 2001, which
are applicable for recruitment of
teachers in all formal schools
established, run, aided or recognized
by the Central or State Government.
Second Schedule of the
Regulations of 2001 provides
for recruitment, qualifications of
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teachers of Physical Education in
educational institutions wherein for
teaching at elementary level a
candidate is required to possess Senior
Secondary School Certificate or
Intermediate or its equivalent and
Certificate in Physical Education of a
duration of not less than two years or
its equivalent. However,
Graduation with Bachelor of
Physical Education or its
equivalent has been prescribed
as the eligibility qualification
for teaching at Secondary/High School
level. Learned counsel relying on
the judgment of the Supreme
Court in Yogesh Kumar v.
Government of NCT Delhi [2003 3 SCC
548] , argued that the Supreme Court
in Para 5 thereof has clearly
held that a teacher training
qualification (B.Ed. therein)
meant to teach higher classes,
cannot be construed to mean that such
a qualification is comparable to or is
higher than the teacher training
qualification meant to teach
lower level of classes i.e. TTE
therein. It was therefore argued that
both the courses i.e. C.P. Ed. and B.P.
Ed. are distinct and separate physical
education courses and that the impugned
judgment passed by learned Single Judge
is just and proper and does not suffer
from any infirmity."
29. In para 16, the Court framed seven
questions that emerged for its
consideration. One of those or rather the
very first question is as under:
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"(1) Whether the appellants can be
treated eligible for appointment on the
post of PTI Gr.III on the analogy that
the qualification of B.P. Ed./D.P. Ed.
held by them, being a higher
qualification, is equivalent to C.P.
Ed?
30. The aforenoted first question was
answered by the Division Bench as under:
"[17] On the first question posed
above, whether the appellants can be
treated eligible for appointment to the
post of PTI Gr.II and PTI Gr.III merely
on the analogy that the qualification
of B.P. Ed. and D.P. Ed. possessed by
them is higher qualification, a
Larger Bench decision of Punjab
and Haryana High Court has been cited
before us in which an identical
question, whether a candidate
possessing higher qualification than
the one prescribed and advertised for
appointment to the posts, is eligible
for such selection/appointment, was
examined. The dispute was about the
appointment on the post of
Physical Training Instructor,
wherefore the notification required
Senior Secondary. School Certificate or
Intermediate or its equivalent and
Certificate in Physical Education (C.P.
Ed.) of a duration of not
less than two years or its
equivalent. Subsequently, a corrigendum
dated 24.10.2006 was issued to even
allow candidates having Certificate in
Physical Education courses of one year
duration after Senior Secondary School
Certificate or Intermediate or its
equivalent, however, with a rider that
this may not be available after 2007
because the Educational Institutions
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are duty bound as per the NCTE
Regulations to commence the two years
course from 2005. Since divergent
opinions were expressed by two Division
Benches of that High Court, the matter
was referred to the Larger Bench. The
curriculum prescribed for C.P. Ed.,
B.P. Ed. and D.P. Ed. by various
Universities in the State of Punjab and
the State of Haryana, were produced
before the Court, on a comparative
study of which it was concluded by the
Court that most of the subjects
included in the curriculum of C.P. Ed.
of two years duration, are also part
of four years course of B.P.
Ed., though with different
nomenclatures, distinctively or
conjunctively. But, there is no
commonality of curriculum of some
of the course of various
Universities. The advertisement
that was subsequently issued,
permitted the candidates having
C.P. Ed. qualification or the
qualification equivalent thereto; for
appointment. It was therefore held that
curriculum of B.P. Ed. or other higher
courses, if included almost all the
components of curriculum of C.P. Ed.,
that Degree should not be construed to
be totally different and distinct
qualification. The Larger Bench
approved the judgment of the first
Division Bench in Multan & Ors. v.
State of Haryana & Anrs., [2004 (4) SCT
45], of Punjab and Haryana high
Court, which found that almost
all components of C.P. Ed. course of
one year or two years duration are
taught in B.P. Ed. Course in all the
Universities in the States of Punjab
and Haryana, and it was therefore held
that the candidates possessing higher
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qualification than prescribed, cannot
be denied right to consideration for
selection. The Larger Bench in holding
so, relied on the judgment of the
Supreme Court in Mohd. Raizul Usman
Gani & Ors. v. District & Sessions
Judge, Nagpur, [2000 (2) SCC 606],
wherein it was held that a candidate
possessing higher qualification than
8th standard prescribed for the post of
Peon, would not be thereby rendered
ineligible.
[18] In the present case, the
Government in its letter dated
06.01.2010 have, in response to letter
of the RPSC dated 13.10.2009, clarified
on. The following three aspects, (1)
that since C.P. Ed. certificate is
awarded after 12th standard
examination, the higher qualification
of D.P. Ed. Should be considered
eligible for PTI Gr.II and PTI Gr.III,
(2) that apart from D.P. Ed.,
candidates possessing B.P. Ed., should
also be on that analogy treated
eligible for appointment on the post of
PTI Gr.III; (3) Since the B.P.E. has
not been approved by NCTE, those
possessing this qualification should
not be considered eligible for
appointment either on the post of PTI
Gr.II or PTI Gr.III.
[19] Appellants in Special Appeal No.
1181/2012, have produced markssheets
and Degrees as also the syllabus of
Three Years B.P. Ed. Course of Nagpur
University giving details of subjects
taught, and training given in First
Year, Second Year and Final
Year thereof. In some of the
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writ petitions, out of the originally
decided bunch, petitioners have also
placed on record the marksheets
issued by Mohan Lal Sukhadia
University, Udaipur, indicating the
same subjects covered in the aforesaid
syllabus though with variation of
years. The appellants have also
produced number of marksheets issued to
the candidates possessing the
qualification of C.P. Ed., according to
which subjects of: 1. Education
Theories of Psychology & History of
Physical Education, 2. Organization of
Physical Education & Methods, 3.
Human Anatomy/Physical Health
Education, Safety Education, Balance
Diet and First Aid, and 4. Guidance and
Coaching, are taught therein. The
syllabus of B.P. Ed. Course of
Nagpur University, which is a
graduation degree of the duration of
three years, indicates that therein all
subjects of C.P. Ed. are apparently
covered, as would be evident from the
following comparative table:
[20] A similar comparison of the
curriculum in the syllabus of the two
qualifications of the C.P. Ed. of
duration of two years vis vis the B.P.
Ed. of duration of four years and D.P.
Ed. Of duration of one year, was made
by the Punjab & Haryana High Court in
Manjit Singh v. State of Punjab & Ors.,
CWP No. 451/2008, decided vide
judgment dated 05.02.2010, which is
reproduced hereunder:
Punjab University
[21] The Larger Bench of the Punjab
and Haryana High Court, on the basis of
aforesaid comparison made the following
observations:
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"From the above, it appears that
Punjab University has prescribed C.P.
Ed. two years course, B.P. Ed/D.P. Ed.
one year course and B.P.E or B.P. Ed 4
years course. From the comparative
study of these Courses, it is evident
that disciplines like "Recreation",
"Yoga", "Health Education" and
"Sports Psychology" form part
of curriculum of C.P. Ed. 2 years
course. Most of these subjects are
also part of B.P. Ed/D.P. Ed. one year
course or B.P.E. or B.P. Ed. four
years course, though under
different nomenclature distinctively
or conjunctively. For example, under
B.P. Ed/D.P. Ed. one year course,
instead of "Recreation" it is
"Philosophy & Administration of
Recreation" as also "Officiating in
Games and Track & Field". Similarly,
Health Education and Sports Psychology
is part of curriculum of all the
courses. Yoga is not specifically
mentioned in B.P. Ed/D.P. Ed. one year
course, though it is also part of
the B.P.E/B.P. Ed. four years
course. It is noticed that
"Recreation and Yoga" are
common in Nagpur University,
Kurukshetra University in B.P. Ed.
course. It is relevant to notice that
C.P. Ed. one year course and two years
course prescribed by Kurukshetra
University do not provide "Recreation"
as one of the components of
curriculum, though it is prescribed in
B.P. Ed. One year course which
is a post Graduation course
in the same University. In
Guru Nanak Dev University,
B.P. Ed. Includes Recreation and
Yoga" so and so on. Mr. Khosla has
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laid much stress on "Recreation" as
part of C.P. Ed. course. However, it
is found that it is not uniformly
adopted in the curriculum of C.P. Ed.
by all the Universities in the States
of Punjab and Haryana. At the same
time, it appears that these
courses are not only part of
C.P. Ed. curriculum but of higher
courses as well may be under different
nomenclature or in a different form in
some universities. One thing is
apparent, there is no commonality of
curriculum of same course in various
Universities. Since the qualification
prescribed under the
advertisements/rules can be acquired
from any of the recognized
Universities/Institutions,
curriculum of Universities
cannot and should not be the sole
basis for determining the eligibility
of the candidates. It has to be on the
broader spectrum of the curriculum,
may be with few additions/omissions
not impeding with the over all profile
of the course."
[22] In the concluding part, the
Larger Bench, while considering
the argument based on the judgment of the
Supreme Courtin Yogesh Kumar, supra, on
the question whether the B.Ed. is a higher
qualification than the T.T.C., held as
under:
"Arguing on the same line Mr. Khosla
has strenuously argued that the
persons possessing any qualification
other than C.P. Ed. are not eligible.
With a view to appreciate the
applicability of the aforesaid
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judgment, it is deemed appropriate to
examine the rule position as
prescribed under 1955 rules for the
post of P.T.I. From the rule noticed
in earlier part of this judgment, it
appears that educational qualification
like metric or 10+2 is not prescribed
therein. Though in the advertisement,
Senior Secondary Certificate or
Intermediate or its equivalent basic
qualification is an essential
component for the post. Similarly,
for professional qualifications,
certificate in Physical Education
C.P. Ed. of a duration of not less
than two years or its equivalent
is prescribed. However, by
virtue of the corrigendum dated
24.10.2006, even a candidate with one
year duration course of C.P. Ed.
is made eligible for
recruitment in question. Similarly,
in the rule, no equivalent
qualification of C.P. Ed. is
referred to, though in the
advertisement C.P. Ed. or its
equivalent qualification is also
recognized as professional
qualification. It cannot be ignored
that the qualification prescribed
under the rule and the
advertisement is always the
minimum qualification. It is not for
us to identify any course which can be
termed as equivalent to C.P. Ed.
course. At the same time, the
curriculum of B.P. Ed. and other
higher courses, if include almost all
the components of curriculum
of C.P. Ed. should not be
construed to be a totally different
and distinct qualification. In the
case of Multan , a Division Bench of
this Court has clearly observed that
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D.P. Ed., B.P. Ed. and M.P. Ed. are
higher qualifications in the same
line. From the curriculum of courses
like C.P. Ed., B.P. Ed., D.P. Ed., it
is found that almost all components of
C.P. Ed. Course of one year or two
years are taught in D.P. Ed. course in
almost all the Universities in the
States of Punjab and Haryana. In sum
and substance, the controversy
revolves around the curriculum of two
types of courses, one prescribed in
the advertisement i.e. C.P. Ed. and
higher courses acquired by the
petitioners. On facts, we are of the
considered opinion that the curriculum
of B.P. Ed., B.P.E, D.P. Ed.
includes the curriculum
prescribed for C.P. Ed. in
major universities in the States
of Punjab and Haryana. Higher
qualifications being in the same
subject and line cannot be ignored and
candidates possessing higher
qualification cannot be denied
consideration for selection."
[23] Adverting now to the provisions of
relevant recruitment Rules in the case
in hand, Entry 3 of Section B of the
Schedule appended to the Rules of 1971,
while prescribing Senior
Secondary/Secondary as the basic
eligibility qualification, requires
only Certificate of Physical Education,
for appointment on the post of
PTI at the level elementary
education. Regulations of 2001
however prescribes the
Certificate of Physical Education
of the duration of two years and has
also permitted to treat the candidates
eligible, who possessed the
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qualification equivalent thereto. The
equivalence cannot therefore be
judged only from the
perspective of qualification of
exactly same duration and having the
same syllabus and curriculum. It has to
be also kept in view that the writ
petitioners, who are resisting the
claim of the appellants for appointment
on the post of PTI Gr. III, are those,
who possess the Certificate of Physical
Education of the duration of only one
year. Training and education in the
subjects that was given/imparted to
them, was also given/imparted to the
appellants, who hold the Degree of B.P.
Ed. However, when we compare the
subjects taught in the B.P. Ed. Of
three years duration, the subjects
mentioned in its syllabus/ curriculum
on the basis of which the appellants
claim eligibility and those of C.P. Ed.
of two yars duration from Punjab
University (there being no such course
in the State of Rajasthan ), referred
to in the Larger Bench judgment of the
Punjab and Haryana High Court, we find
that the subjects are almost same and
substantially cover the syllabus/
curriculum of the former. Those
subjects are (1) History of Physical
Education, (2) Anatomy & Physiology,
(3) Education and Sports Psychology,
(4) Methods of Physical Eduction and
Sports, (5) Officiating & Coaching, (6)
Principles of Physical Education, (7)
Kinesiology, Exercise Physiology &
Fitness, (8) Health Education & Safety
Education and (9) Recreation & Yoga. In
the syllabus of B.P. Ed. of three years
duration, reference to which has
already been made above, all these
subjects are covered with almost the
same names. The comparative table that
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has been extracted above, clearly shows
that the first subject
"Education Theories of Psychology
& History of Physical Education" is
taught in much expanded form in the
first year as well as second year
of the Degree Course of B.P.
Ed. The subject "Organization of
Physical Education & Methods" is
also taught in the Degree course of
B.P. Ed. in much more diversified
manner in Second and Final Year of B.P.
Ed. Similarly, subject of "Human
Anatomy" which is taught as subject in
C.P. Ed. is taught in first year of
B.P. Ed. as subject known as
"Anatomy and Physiology". The
subject "Physical Health Education,
Safety Education, Balanced Diet and
First Aid" taught in C.P. Ed., is also
included in B.P. Ed. as subject of
"Health Education & Remedial &
Corrective Physical Education" in the
Final year, and then is the subject
"Educational Psychology and Counselling
and Guidance". Subject "Balance Diet
and First Aid" in the C.P. Ed. Course
is also taught in the First Year of
B.P. Ed. as the subject
"Health, Hygiene and Sanitation".
Subject "Guidance and Coaching"
in the C.P. Ed. is taught
as the subject "Counselling and
Guidance", as also the subject
of "Officiating and Coaching" in
the B.P. Ed. course. Subject "Teaching
& Officiating Ability, Officiating
Assignment" in C.P. Ed. is taught in a
much comprehensive format as the
subject of "Officiating and Coaching"
and then "Organization and
Administration of Physical
Education" and then the "Method
in Physical Education". Even
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though B.P. Ed. is a higher
qualification entitling its holder to
secure appointment on the higher post
of PTI Gr.II, but we are not deciding
the question of equivalence herein only
because it is higher degree. Analytical
comparison of the two clearly brings
out that the subjects ofcourse are the
same, but the curriculum of subjects in
B.P. Ed. is much comprehensive, wider
and diversified.
[24] We are however not inclined to
concur with the view expressed by the
Larger Bench of the Punjab
and Haryana High Court treating
the qualification of B.P. Ed./D.P. Ed.
courses of one year duration higher
than the C.P. Ed. of two years
duration. Careful reading of the said
judgment reveal that in fact the Larger
Bench in taking that view, heavily
relied on earlier Division Bench
judgment of the same Court in Multan &
Ors. v. State of Haryana & Anr., [2004
(4) SCT 45]. The qualification of C.P.
Ed. of two years duration does not
merely consist of theory papers but
also practical training is imparted
to the students during that period
with respect to each of the subjects
taught to them. The training consists
of games, athletics and other
activities. Nine papers are divided
into four semesters spread over a
period of two years. The students are
imparted extensive training in each
of the subjects with particular
emphasis on practical aspects. Apart
from that, neither the Larger Bench of
Punjab & Haryana High Court in Manjit
Singh v. State of Punjab & Ors., CWP
No. 451/2008, nor Division Bench
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in R , analyzed the effect of
National Council for Teacher Education
(Determination of Minimum Qualification
for Recruitment of Teachers in
School) Regulations, 2001, which
has prescribed C.P. Ed. of two years
duration as eligibility qualification
for appointment on the post of PTI at
elementary level. While therefore we do
not find any reason to hold
that any specialized physical
training is imparted in C.P. Ed. for
students of only elementary level,
which training is not imparted in
B.P. Ed., we are not
persuaded to hold that
qualification of B.P. Ed/D.P.
Ed. of one year duration is
higher qualification than the
qualification of C.P. Ed. of two years
duration and, therefore, should be
considered equivalent.
[25] It therefore logically follows
that those holding the qualification of
B.P. Ed., recognized by NCTE,
would not be holding an
equivalent qualification. The
degree of B.P. Ed., since its
syllabus covers all the essential
components of the subject of C.P. Ed.,
cannot be treated a totally different
and distinct qualification.
Another significant aspect of
the matter is that R.P.S.C. has also
held common written examination for
both the posts, thus indicating that
merit of all the candidates has been
tested applying the same yardstick.
Apart from recognizing C.P. Ed. as the
eligibility qualification for
appointment on the post of PTI Gr. III
at the elementary level, recognition
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has also been given to the degree of
B.P. Ed. for appointment on the post of
P.T.I. Gr. II at the secondary/High
School Level.
[26] Adverting now to the qualification
of D.P. Ed., it is to be noted that the
Government, in its order dated
06.01.2010, has also directed the
qualification of D.P. Ed. to be treated
equivalent to that of C.P. Ed., but in
the Regulations of 2001, the N.C.T.E.
has neither accorded any recognition to
the qualification of D.P. Ed. nor
prescribed it as one of the eligibility
qualifications for appointment on
the post of P.T.I. either at
the Elementary or at Secondary/High
School level. The analogy on which we
are persuaded to hold the
qualification of B.P. Ed.
equivalent to qualification of C.P.
Ed., is that besides being higher, it
covers all the subjects in much
expanded form. But this analogy cannot
be applied to the qualification of D.P.
Ed. Even though, the Rules of 1971
recognize the qualification of D.P. Ed.
as eligibility qualification for
appointment on the post of PTI Gr.II,
but D.P. Ed. can not be treated
equivalent to C.P. Ed. envisaged in the
Regulations of 2001, which only
recognize the C.P. Ed. Of not less
than two years duration, as
the necessary qualification for
appointment on the post of
PTI at elementary level and
Bachelor in Physical Education
(B.P. Ed.) of the duration of
three years or its equivalent at
Secondary/High School level.
Qualification of C.P. Ed. With which
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the comparison has to be made, thus has
to be of duration of not less than two
years and therefore, the Diploma course
of the duration of one year, cannot
be on similar analogy treated
equivalent thereto. Moreover, such
comparison cannot be made with the C.P.
Ed. of one year because only those
already possessing qualification of
C.P. Ed. of one year or admitted to
C.P. Ed. course of one year, upto 2005,
have been, by virtue of the Note given
below Section 2 Second Schedule to the
Regulations of 2001, treated as
eligible and not otherwise. Therefore,
the premise on which we have held the
qualification of B.P. Ed. of the
duration of three years, equivalent to
the qualification of C.P. Ed. of the
duration of two years, cannot be
applied to the qualification of
D.P. Ed. of one year duration.
[27] Question somewhat similar to the
one involved in this matter, fell for
consideration of Division Bench of this
Court in State of Rajasthan & Ors. v.
Hari Ram & Ors., supra, albeit, in the
context of direct recruitment to the
post of PTI Gr.II. The relevant entry
then prevalent in the Schedule appended
to the Rules of 1971,
provided that those possessing
the qualification of Graduation or
equivalent examination, with Diploma in
Physical Education or Secondary
with 4 years diploma in
Physical Education, would be
eligible for appointment. Those
possessing the Bachelor's degree in
Physical Education from Indira Gandhi
University, Nagpur and other
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Universities, recognized by
University Grants Commission, were
not considered eligible for direct
recruitment to the post of PTI
Gr.II. Such candidates approached
this Court by filing writ
petitions. The Single Bench of this
Court allowed the petitions holding
that the candidates possessing the
Bachelor's Degree in Physical Education
from Universities recognized by the UGC
should be considered eligible alongwith
other candidates, who possess the
Graduate Degree or equivalent to the
Graduate Degree and Diploma in Physical
Education. Challenge was made to the
aforesaid Single Bench judgment before
the Division Bench in appeal. It was
argued on behalf of the State that the
Single Bench has not considered the
Rules in their proper perspective and
that for the purpose of appointment on
the post of PTI Gr.II, special physical
practical training is most essential
and if untrained persons are recruited
and appointed on the post of PTI, they
would not be able to impart physical
training to the students. Contention of
writ petitioners was that while
pursuing the course of degree in
Physical Education, they have undergone
more theoretical studies and also more
practical training in comparison to
those persons, who have acquired
diploma in Physical Education, and some
of them from the same University, from
which the writ petitioners acquired the
degree qualification. While deciding
the Special Appeal, the Division Bench
of this Court, in Para 8 of the
judgment, held that,
"....such construction of the
rules is meaningless and it
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causes miscarriage of justice with
regard to the rights of the persons
like the petitioners who are qualified
and are in possession of the degree in
Physical Education. This apart, a
person who undergoes a degree course in
particular subject has to pursue the
said course for such education, study
more papers and has to undergo more
practical training in comparison
to those persons who acquired
diploma course which is comparatively
of short duration...."
[28] It must therefore be
held that while deciding the
question of equivalence of two
qualifications, comparative duration of
two courses is a significant aspect,
especially when the practical training
is an important component of the
curriculum. When the Regulations
of 2001 for appointment of PTI at
elementary level, requires C.P. Ed.
qualification of duration of two,
years, with a positive mandate
to discontinue/ derecognize C.P.
Ed. qualification of duration of
one year from 2005 onwards, C.P. Ed.
and D.P. Ed. qualification of one year
and also, B.P. Ed. qualification of
one year, cannot be treated
equivalent to C.P. Ed.
qualification of the duration of two
years. Candidates possessing B.P. Ed.
qualification of three years
have to be however treated
eligible for appointment on the post
of PTI at elementary level for the
aforestated reasons."
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31. I may also refer to one another
decision of the High Court of Rajasthan
rendered by a Division Bench in the case of
Madan Gir and others v. State of Rajasthan
[2013 Labour Industrial Cases 724]. In
Madan Gir (supra), the State Government, in
exercise of its powers conferred by the
proviso to Article 309 of the Constitution
of India, framed rules called the
"Rajasthan Education Subordinate Service
Rules 1971" to regulate the recruitment and
other service conditions relating to the
members of the Rajasthan Education
Subordinate Service. According to the
ScheduleI appended to the rules, the
persons, having the qualification of
the "Certificate in Physical
Education" (in short,'C.P.Ed.') eligible
to be considered for appointments as the
Physical Training Instructors, Grade III.
The eligibility prescribed for the
appointment to the post of the Physical
Training Instructor, Grade III was of
having the Bachelor Degree in the Physical
Education (B.P.Ed.) inter alia. The
petitioners therein having the
qualification of the C.P.Ed. and were
eligible to be considered for the
appointments to the posts of the Physical
Education Instructors, Grade III.
Thereafter, the rules came to be amended.
As a consequent to the amendment, the
persons having the qualification of
the B.P.Ed. were also made available
to be considered for appointments of the
Physical Training Instructors, Grade III
along with the persons having the
qualifications of the C.P.Ed. And D.P.Ed.
32. The petitioners therein having
the qualification of the C.P.Ed.
challenged the amended eligibility
i.e. the inclusion of the B.P.Ed.
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holders in the eligibility criteria for
the appointments to the posts of the
Physical Training Instructors, Grade
III. While rejecting the writ
application, the Division Bench held as
under:
"[4] The submission of counsel
for the petitioners is that
as per the National Council for
Teacher Education Act, 1993
framed National Council for Teachers
Education (Department of Minimum
Qualification for Recruitment of
Teachers) Regulations 2001 (hereinafter
referred to as "the Regulations of
2001") and as per that a Physical
Training instructor for elementary
level is required to have Certificate
in Physical Education (CPEd.) of a
duration not less than two years or
equivalent. The BPEd. holders are not
eligible to be considered for
appointment at elementary physical
education level as per the Regulations
aforesaid, therefore, the amendment
introduced in the Rules of 1971 is bad.
[5] We do not find any merit
in the argument advanced. The
Regulations of 2001 prescribes
minimum standards for recruitment
of teachers. True it is, the
qualification of CPEd of duration not
less than two years or its
equivalent is prescribed as
minimum academic and professional
qualification for appointment to the
post of Physical Training Instructor at
elementary level, but the qualification
of BPEd is quite higher than the
qualification of CPEd. As per
the Regulations of 2001 the
respondents could have not
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
prescribed any eligibility less
than the eligibility prescribed under
the Regulations aforesaid, but higher
standards of qualification are
certainly permissible to be introduced
as necessary eligibility. The
provisions under challenge in these
petitions for writ as such are
neither at all inconsistent
with fundamental rights of the
petitioners nor are also beyond the
legislative competence. The amendment
introduced is quite rational as
that provides higher
qualification as eligibility for
appointment on the post of
Physical Training Instructor Grade-
III. It is further relevant to note
that no institution in the State of
Rajasthan is providing the
qualification of CPEd in the State of
Rajasthan at least from last about a
decade. No case, therefore, is made
out to impeach the amended eligibility
prescribed for appointment to the post
of Physical Training Instructors Grade-
III. The writ petitions, for the
reasons given above, are dismissed."
33. What is important to note in the above
referred decision of the Rajasthan High
Court is the fact that no
institution in the State of Rajasthan
was providing the qualification of the
C.P.Ed. in the State of Rajasthan at that
time past almost a decade. Keeping that in
mind the Division Bench declined to
impeach the amended eligibility criteria
for the appointment to the post of the
Physical Education Instructor, Grade III.
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
35. I am of the view that as the writ
applicants were not possessing the
requisite qualification of the
C.P.Ed., they could not have
been appointed on the posts in question,
and more particularly, when the
advertisement in this regard was very
clear. In fact the applications should
have been rejected at the threshold. It is
very sad to note that the two writ
applicants although worked for a period of
almost five years, yet had to go
home. The learned counsel
appearing for the writ applicants
submitted that even considering the
equity, they should be reinstated in
service with the continuity. It is
submitted by the learned counsel that the
back wages may not be granted. It must
never be forgotten that one of the maxims
of equity is that "Equity follows the
law". If the law is clear, no notions of
equity can substitute the same."
15.The Apex Court in case of Puneet Sharma and
ors vs. Himachal Pradesh State Electricity
Board Ltd and anr in Civil Appeal No. 1318-
1322 of 2021 decided on 07 April,2021,
Electricity Board while considering the
question as to whether degree in Electrical
Engineer/Electronics Engineer is technically
higher qualification than Diploma in their
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
discipline and whether the degree holders are
eligible for appointment to the post of
Junior Engineers (Electrical) under the
relevant Recruitment Rules held in similar
facts that when the degree holders in the
concerned discipline applied for the post of
Junior Engineer claiming that since they
possessed educational qualification higher
than the prescribed minimum and advertised
qualification, they could not have been
denied consideration as under:
"22. The question whether the stipulation
or prescription of the particular academic
qualification excludes an applicant who
possesses what is termed as a higher
qualification, from their candidature to
the concerned post has often arisen for
consideration by this Court. In P.M. Latha
& Anr. v. State Of Kerala & Ors. 11, the
issue which arose for consideration was
whether, for primary class teachers, the
prescribed (and advertised) qualification
Trained Teacher Certificates (TTC),
included those who held B.Ed. degrees.
This court was forthright in holding that
the B.Ed. qualification could not be
considered as a higher qualification than
the TTC and that the TTC qualification was
"given to teachers especially trained to
teach small children "primary classes",
whereas those with B.Ed. were trained to
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
impart education to students of "higher
classes". A similar view was expressed
in Yogesh Kumar & ors v. Government of NCT
Delhi & Ors 12 vis-a-vis the same
stipulation i.e., B.Ed. and TTC
qualifications. The Court further held in
Yogesh Kumar (supra) that "a specialized
training given to teachers for teaching
small children at primary level cannot be
compared with training given for awarding
B.Ed. Degree."
23. The next judgment is Jyoti K.K. & Ors.
v. Kerala Public Service Commission &
Ors.13, where the issue was whether degree
holders could be considered for the post
of Sub-Engineer (Electrical) in the Kerala
State Electricity Board, which had
prescribed diploma in Electrical
Engineering or SSLC or its equivalent as
the eligibility criteria. This Court took
into consideration Rule 10A and inter alia
observed as follows:
"6. Rule 10(a)(ii) reads as follows:
"10. (a)(ii) Notwithstanding anything
contained in these Rules or in the
Special Rules, the qualifications
recognised by executive orders or 11
(2003) 3 SCC 541 12 (2003) 3 SCC 548 13
(2010) 15 SCC 596 standing orders of
Government as equivalent to a
qualification specified for a post in
the Special Rules and such of those
higher qualifications which presuppose
the acquisition of the lower
qualification prescribed for the post
shall also be sufficient for the post."
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
7. It is no doubt true, as stated by
the High Court that when a
qualification has been set out under
the relevant Rules, the same cannot be
in any manner whittled down and a
different qualification cannot be
adopted. The High Court is also
justified in stating that the higher
qualification must clearly indicate or
presuppose the acquisition of the lower
qualification prescribed for that post
in order to attract that part of the
Rule to the effect that such of those
higher qualifications which presuppose
the acquisition of the lower
qualifications prescribed for the post
shall also be sufficient for the post.
If a person has acquired higher
qualifications in the same Faculty,
such qualifications can certainly be
stated to presuppose the acquisition of
the lower qualifications prescribed for
the post. In this case it may not be
necessary to seek far.
8. Under the relevant Rules, for the
post of Assistant Engineer, degree in
Electrical Engineering of Kerala
University or other equivalent
qualification recognised or equivalent
thereto has been prescribed. For a
higher post when a direct recruitment
has to be held, the qualification that
has to be obtained, obviously gives an
indication that such qualification is
definitely higher qualification than
what is prescribed for the lower post,
namely, the post of Sub-Engineer. In
that view of the matter the
qualification of degree in Electrical
Engineering presupposes the acquisition
of the lower qualification of diploma
in that subject prescribed for the
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
post, shall be considered to be
sufficient for that post.
9. In the event the Government is of
the view that only diploma-holders
should have applied to post of Sub-
Engineers but not all those who possess
higher qualifications, either this Rule
should have excluded in respect of
candidates who possess higher
qualifications or the position should
have been made clear that degree-holder
shall not be eligible to apply for such
post. When that position is not clear
but on the other hand the Rules do not
disqualify per se the holders of higher
qualifications in the same Faculty, it
becomes clear that the Rule could be
understood in an appropriate manner as
stated above. In that view of the
matter the order [Jyothi K.K. v. Kerala
Public Service Commission, Original
Petition No. 9602 of 1998, order dated
30-3- 2000 (Ker)] of the High Court
cannot be sustained. In this case we
are not concerned with the question
whether all those who possess such
qualifications could have applied or
not. When statutory Rules have been
published and those Rules are
applicable, it presupposes that
everyone concerned with such
appointments will be aware of such
Rules or make himself aware of the
Rules before making appropriate
applications. The High Court,
therefore, is not justified in holding
that recruitment of the appellants
would amount to fraud on the public."
24. It is evident therefore, that this
Court was of the opinion that for the post
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
of Sub-Engineer (which can be termed as
comparable to the post of Junior Engineer
in the present case), the Kerala State
Electricity Board felt that those
possessing degree as well could be
considered. This Court upheld the
contention.
25. In Anita (supra) this court was
concerned with JBT teachers, where the
minimum qualification was two years'
junior basic teachers' training. Those
with MSc, B.Ed. and MA qualifications were
held ineligible, looking at the nature of
the job i.e. teaching primary classes.
Jyoti (supra) was distinguished because
the appointing authority had the option of
considering appointment of persons with
higher qualifications.
26. In Zahoor Ahmad Rather (supra) the
post in question was "Technician-III"in
the Power Development Department in the
State of Jammu and Kashmir. The relevant
stipulation with respect to qualification
was "Matric with ITI in the relevant
trade." The appellants held diploma in
Electrical Engineering and were included
in the list of disqualified candidates.
This resulted in litigation which
ultimately culminated in the judgment of
this court. This court held in its
judgment:
"Under the above provisions as well as
in the advertisement which was issued
by the Board, every candidate must
possess the prescribed
academic/professional/technical
qualification and must fulfil all other
eligibility conditions. The prescribed
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
qualifications for the post of
Technician III in the Power Development
Department is a Matric with ITI in the
relevant trade. The Board at its 116th
meeting took notice of the fact that in
some districts, the interviews had been
conducted for candidates with a Diploma
in Electrical Engineering while in
other districts candidates with a
diploma had not been considered to be
eligible for the post of Technician
III. Moreover, candidates with an ITI
in diverse trades had also been
interviewed for the post. The Board
resolved at its meeting that only an
ITI in the relevant trade, namely, 14
(2019) 2 SCC 404 the Electrical trade
is the prescribed qualification
specified in the advertisement."
27. Thereafter, the Court discussed the
previous rulings in P.M. Latha, Jyoti K.K.
and Anita (supra), then concluded that the
candidature of the diploma holders was
correctly rejected and held as follows:
"26. We are in respectful agreement
with the interpretation which has been
placed on the judgment in Jyoti K.K.
[Jyoti K.K. v. Kerala Public Service
Commission, (2010) 15 SCC 596 : (2013)
3 SCC (L&S) 664] in the subsequent
decision in Anita [State of Punjab v.
Anita, (2015) 2 SCC 170 : (2015) 1 SCC
(L&S) 329] . The decision in Jyoti K.K.
[Jyoti K.K. v. Kerala Public Service
Commission, (2010) 15 SCC 596 : (2013)
3 SCC (L&S) 664] turned on the
provisions of Rule 10(a)(ii). Absent
such a rule, it would not be
permissible to draw an inference that a
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
higher qualification necessarily
presupposes the acquisition of another,
albeit lower, qualification. The
prescription of qualifications for a
post is a matter of recruitment policy.
The State as the employer is entitled
to prescribe the qualifications as a
condition of eligibility. It is no part
of the role or function of judicial
review to expand upon the ambit of the
prescribed qualifications. Similarly,
equivalence of a qualification is not a
matter which can be determined in
exercise of the power of judicial
review. Whether a particular
qualification should or should not be
regarded as equivalent is a matter for
the State, as the recruiting authority,
to determine. The decision in Jyoti
K.K. [Jyoti K.K. v. Kerala Public
Service Commission, (2010) 15 SCC 596 :
(2013) 3 SCC (L&S) 664] turned on a
specific statutory rule under which the
holding of a higher qualification could
presuppose the acquisition of a lower
qualification. The absence of such a
rule in the present case makes a
crucial difference to the ultimate
outcome. In this view of the matter,
the Division Bench [Imtiyaz Ahmad v.
of 2017, decided on 12-10-2017 (J&K)]
of the High Court was justified in
reversing the judgment [Zahoor Ahmad
Rather v. State of J&K, 2017 SCC OnLine
J&K 936] of the learned Single Judge
and in coming to the conclusion that
the appellants did not meet the
prescribed qualifications. We find no
error in the decision [Imtiyaz Ahmad v.
of 2017, decided on 12-10-2017 (J&K)]
of the Division Bench.
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
27. While prescribing the
qualifications for a post, the State,
as employer, may legitimately bear in
mind several features including the
nature of the job, the aptitudes
requisite for the efficient discharge
of duties, the functionality of a
qualification and the content of the
course of studies which leads up to the
acquisition of a qualification. The
State is entrusted with the authority
to assess the needs of its public
services.
Exigencies of administration, it is
trite law, fall within the domain of
administrative decision-making. The
State as a public employer may well
take into account social perspectives
that require the creation of job
opportunities across the societal
structure. All these are essentially
matters of policy. Judicial review must
tread warily. That is why the decision
in Jyoti K.K. [Jyoti K.K. v. Kerala
Public Service Commission, (2010) 15
SCC 596 : (2013) 3 SCC (L&S) 664] must
be understood in the context of a
specific statutory rule under which the
holding of a higher qualification which
presupposes the acquisition of a lower
qualification was considered to be
sufficient for the post. It was in the
context of specific rule that the
decision in Jyoti K.K. [Jyoti K.K. v.
Kerala Public Service Commission,
(2010) 15 SCC 596 : (2013) 3 SCC (L&S)
664] turned."
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
28. It would be also useful to notice a
later judgment of this court, in Chief
Manager, Punjab National Bank and Another
v Anit Kumar Das 2020 SCC On Line SC 897
where the issue was, whether for the post
of peon in the appellant Bank, a degree
holder (graduate) could be appointed,
given the conscious decision of the
employer, that only those who held 10+2
pass qualifications would be considered
and those with graduation qualification
could not be considered. This court held
that the appointment of the respondent,
who was a graduate, after he suppressed
the fact that he held a degree, and did
not disclose it, was unsupportable. In
this context, it was observed that as to
what qualifications are applicable to what
class of posts, is a matter of discretion
to be exercised by the employer, which the
courts would be slow to interdict. This
decision too supports the conclusions in
the present case, since the employer,
HPSEB asserts that it considers degree
holders eligible for appointment to the
post of JE."
16. It emerges that the prescription of
qualification for a post is a matter of
recruitment policy and it is for the State as
an employer which is entitled to prescribe
the qualification and whether the particular
qualification should or should not be
regarded as equivalent is a matter for the
recruiting authority to determine and holding
C/SCA/12008/2017 CAV ORDER DATED: 22/07/2022
of a higher qualification could pre-suppose
the acquisition of a lower qualification has
to be prescribed in the Recruitment Rules and
absence of such a rule makes a crucial
difference to the ultimate outcome as held by
the Apex Court in case of Zahoor Ahmad
Rather v Sheikh Imtiyaz reported in 2019 (2)
SCC 404 referred in para 26 of the decision
of Punit Sharma and ors vs. Himachal Pradesh
State Electricity Board Ltd and anr (supra).
Therefore, in the facts of the case when the
respondent No.2 has considered the degree
holders eligible for appointment to the post
of Gram Sevak as they are having higher
qualification the same cannot be interfered.
17.In view of the foregoing reasons, the
petitions being devoid of any merit are
dismissed.
(BHARGAV D. KARIA, J)
JYOTI V. JANI
