Chilukuri Praveena vs The State Of Telangana
2022 Latest Caselaw 5287 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                 WRIT PETITION NO.488 OF 2022
                                 AND
                WRIT PETITION NO.6657 OF 2022


                         COMMON ORDER


      In both these Writ Petitions, the petitioners are seeking a Writ of

Mandamus declaring the decision of respondents 1 and 2 as reflected in

Lr.No.3715/SE-Trg./A1/2021, dt.18.12.2021 to consider only those

candidates who have finished Diploma in Physical Education (D.P.Ed.)

for the posts of Physical Education Teachers for classes V to VIII in the

schools run by respondents 3 to 7, thereby excluding the candidates who

have completed Bachelor of Physical Education (B.P.Ed.) from being

considered for those posts and limiting their consideration only for the

posts for classes IX and X of the said schools, while finalising the

recruitment process and giving appointment orders pursuant to the

recruitment Notification No.16/2007 dt.14.04.2017, as illegal, arbitrary,

unconstitutional and in violation of the Guidelines issued under the

National Council for Teacher Education (Determination of Minimum

Qualifications for Persons to be Recruited as Educational Teachers for W.P.Nos.488 & 6657 of 2022

Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or

Intermediate Schools or Colleges) Regulations, 2014 (for brevity, 'the

NCTE Regulations') and in violation of the order of this Court

dt.08.03.2021 in W.A.No.210 of 2020 and batch and consequently to

direct the respondents to consider the petitioners, who are holders of

B.P.Ed. degree, for recruitment even for the posts of Physical Education

Teachers for classes V to VIII apart from classes IX and X in the

schools run by respondents 3 to 7 while finalising the recruitment

process and giving appointment orders pursuant to the recruitment

Notification No.16/2017 dt.14.04.2017 and to pass such other order or

orders as this Hon'ble Court may deem fit and proper in the

circumstances of the case.

2. Brief facts leading to the filing of the present Writ Petitions are

that all the petitioners in both the Writ Petitions are holding qualification

of Bachelors of Physical Education. The Government, i.e., the 1st

respondent had issued Notification No.8/2017 dt.06.02.2017 for

recruitment of Physical Education Teachers (for brevity, 'the PETs') in

the schools run by respondents 3 to 7. The educational qualification

prescribed was Diploma in Physical Education. The qualification for W.P.Nos.488 & 6657 of 2022

recruitment of Teachers including PETs for Pre-primary, Primary,

Upper Primary, Secondary, Senior Secondary and Intermediate Classes

in the schools/colleges is regulated by the NCTE Regulations. It is

submitted that these Regulations apply to all the schools in the State,

including the schools run by respondents 3 to 7. As per the Second

Schedule of the NCTE Regulations, the minimum academic and

professional qualifications for the post of PET for Clases I to VIII and

for the post of PET for Classes IX and X are separately prescribed, i.e.,

for Classes I to VIII, the minimum qualification is D.P.Ed. and for

Classes IX and X, it is B.P.Ed.. The Notification dt.06.02.2017 issued

by the 2nd respondent prescribed only D.P.Ed. as the minimum

qualification irrespective of the Classes to which the post pertains to,

and was contrary to NCTE Regulations since B.P.ED. holders were

completely excluded from consideration and D.P.Ed. holders, who were

ineligible to be considered for PET for Classes IX and X, were included.

In view of the same, representations were made by various B.P.Ed.

holders to respondents 1 and 2 to make appropriate changes in the

Notification so that it is in consonance with the NCTE Regulations.

W.P.Nos.488 & 6657 of 2022

3. It is submitted that a Committee was constituted by respondent

No.1 to examine the issue and it made recommendations to respondent

No.2 and based on the said recommendations, fresh Notification, i.e.,

Notification No.16/2017 dt.14.04.2017 was issued by respondent No.2.

In the said Notification, both D.P.Ed. and B.P.Ed. qualifications were

prescribed as the educational qualification for recruitment to the post of

PET and accordingly examination was held in May, 2017.

4. Aggrieved by the inclusion of B.P.Ed. as one of the educational

qualifications for recruitment, a few D.P.Ed. holders challenged the

Notification No.16/2017 dt.14.04.2017 by filing a Writ Petition in

W.P.No.3019 of 2018. This Court passed an interim order dt.01.02.2018

staying all further proceedings pursuant to Notification No.16/2017. A

few B.P.Ed. holders including the petitioners herein impleaded

themselves in the Writ Petition and counter affidavits were filed by both

the official as well as the unofficial respondents. The stand of the

Government was that the principle that persons with higher qualification

will be eligible for appointment, was a recognised principle and the fact

that B.P.Ed. holders are also eligible candidates for all the posts, was

also recognised. The Writ Petition was ultimately disposed of by order W.P.Nos.488 & 6657 of 2022

dt.16.09.2019, wherein vide para 67, the following directions were

given.

"67. I therefore propose to mould the relief sought by the petitioners in the interest of justice in the following manner:

(a) the respondent Nos.1 to 7 are directed to identify the PET posts which would be required for (i) Classes I to VIII or Classes V to VIII and (ii) Classes IX and X in respondent Nos.2, 4 to 7 institutions;

(b) respondent Nos.1 to 7 shall prescribe a higher cut off mark for Graduates who are eligible as per the NCTE Regulations referred to above only for the posts of PETs earmarked for Classes IX and X;

(c) respondent Nos.1 to 7 shall prescribe a lower cut off mark for non-Graduates like the petitioners who are also eligible as per the NCTE Regulations referred to above for the posts of PETs earmarked for Classes I to VIII or Classes V to VIII;

(d) respondent Nos.1 to 7 shall consider on the basis of the cut off marks so fixed, qualified Graduate candidates only for the posts of PETs earmarked for Classes IX and X;

(e) respondent Nos.1 to 7 shall consider on the basis of the cut off marks so fixed, qualified non-Graduate candidates like the petitioners only for the posts of PETs earmarked for Classes I to VIII or Classes V to VIII;

W.P.Nos.488 & 6657 of 2022

(f) the TSPSC shall publish a fresh list of selected candidates as per the above norms within eight weeks from the date of receipt of a copy of this order; and

(g) respondent Nos.1 to 7 shall then take further steps to fill up the said posts with such qualified candidates."

5. Aggrieved by the above directions, the State Government as well

as the B.P.Ed. holders filed Writ Appeals before this Court. The Writ

Appeal filed by the State is W.A.No.210 of 2020. W.A.No.210 of 2020

and batch were disposed of with the consent of both the parties after

taking into consideration the contentions of all the parties. The official

respondents had submitted that they will comply with the direction at

para 67(a) of the order dt.16.09.2019 in W.P.No.3019 of 2018, whereby

the posts of PET for Classes up to VIII and the posts of PET for Classes

IX and X will be segregated and thereafter, the eligibility of the

candidates will be considered in terms of the NCTE Regulations and on

merit and in the light of the above two submissions, the remaining

directions at paras 67(b) to 67(f) will have to go. Accordingly, the Writ

Appeals were disposed of. Thereafter, when the official respondents did

not complete the recruitment process in spite of a direction to complete

the same at the earliest, some of the applicants filed contempt petitions W.P.Nos.488 & 6657 of 2022

before the Court. It is submitted that in the meantime, respondents 1 and

2 have taken a decision to allocate PET posts up to Classes VIII and

below exclusively to D.P.Ed. candidates and the posts of PET for

Classes IX and X exclusively to B.P.Ed. candidates, but since no written

intimation was forthcoming, the petitioners approached the authorities

and ultimately got hold of the letter in Lr.No.3715/SE-Trg./A1/2021

dt.08.12.2021 addressed by respondent No.1 to respondent No.2,

wherein the above mentioned decision was communicated. Since it was

not in accordance with the order of this Court dt.16.09.2019 in

W.P.No.3019 of 2018 and the judgment dt.08.03.2021 in W.A.No.2010

of 2020, the present Writ Petitions are filed by the writ petitioners

raising various grounds.

6. At the admission stage, vide orders dt.07.01.2022, I.A.No.2 of

2022 in W.P.No.488 of 2022 was allowed and there was an interim stay

of all further proceedings pursuant to the decision taken by the 1st

respondent and communicated to the 2nd respondent vide letter

No.3715/SE-Trg./A1/2021 dt.08.12.2021.

7. Learned Senior Counsel, Sri D. Prakash Reddy, appearing for the

writ petitioners in W.P.No.488 of 2022 submitted that as per the NCTE W.P.Nos.488 & 6657 of 2022

Regulations, D.P.Ed. is the minimum educational qualification to be

eligible to become PET for Classes up to VIII and only a B.P.Ed. holder

qualifies to be considered for the post of PET for Classes IX and above.

Therefore, according to him, a B.P.Ed. holder is also eligible to be

considered for the post of PET for Classes VIII and below and the

impugned decision eliminating B.P.Ed. holders from consideration for

the post of PET for Classes VIII and below is contrary to the NCTE

Regulations and is without jurisdiction and is accordingly illegal. He

submitted that when a minimum qualification of D.P.Ed., is prescribed

for Classes up to Class VIII, it presupposes that even higher

qualification of B.P.Ed. is also an eligible qualification for the said post.

He drew the attention of this Court to the NCTE Regulations of 2014,

wherein minimum qualifications and standards for the study of D.P.Ed.

and B.P.Ed. are prescribed. He submitted that even B.P.Ed. holders are

trained to impart physical education to the students of Classes X and

below and therefore, they cannot be excluded from the zone of

consideration for the posts of PET for Classes VIII and below as well. It

is submitted that D.P.Ed. is by no means an exclusive qualification

which alone satisfies the requirements of Class VIII and below and the

meaning of the word 'minimum' is that a person possessing a W.P.Nos.488 & 6657 of 2022

qualification less than D.P.Ed. cannot be considered, but it does not

mean that a person possessing higher qualification is excluded from the

zone of consideration for the said post. He reiterated that the NCTE

(Recognition Norms and Procedure) Regulations, 2014 (for brevity,

'Norms Regulations') regulate the Teacher Education Programmes, i.e.,

academic courses imparted for preparing and training teachers and

Regulation 9 read with Appendices-6 and 7 of the Norms/Regulations

lay down the norms and standards in respect of D.P.Ed. and B.P.Ed.

courses and the preamble of Appendix-7 categorically states that the

purpose of the B.P.Ed. course is to prepare and train teachers for

physical education for Classes VI to X. He further drew the attention of

this Court to the synopsis of the arguments filed by the State before the

Division Bench of this Court in W.A.No.210 of 2020, wherein the stand

of the State was clear that even B.P.Ed. holders are eligible for

consideration to the post of PET for Classes VI to X. He submitted that

it was on the strength of the stand taken by the Government in the said

synopsis and also of the stand taken by the State in the counter affidavit

filed in W.P.No.3019 of 2018, that the writ petitioners had agreed to the

order passed by the Division Bench and therefore, he submitted that the

State cannot now be allowed to take a 'U' turn to hold that only D.P.Ed.

W.P.Nos.488 & 6657 of 2022

holders are eligible to be considered for the post of PET for Classes VIII

and below.

8. In support of his contention that where a minimum qualification is

prescribed, a person with higher qualification cannot be denied

consideration, he placed reliance upon the judgment of this Court in the

case of Mohd. Riazul Usman Gani and others Vs. District &

Sessions Judge, Nagpur and others1 and also the decision of the

Hon'ble High Court of Andhra Pradesh in the case of District

Collector, Anantapur and others Vs. K. Sujatha2. For the proposition

that if a person has acquired higher qualification in the same faculty,

such qualification can certainly be stated to presuppose the acquisition

of the lower qualification prescribed for that post and shall be

considered to be sufficient for that post, he placed reliance upon the

judgment of the Hon'ble Supreme Court in the case of Jyoti K.K. and

others Vs. Kerala Public Service Commission and others3. For the

proposition that a candidate possessing higher qualification is found to

be at least equivalent to prescribed qualification and hence cannot be

(2000) 2 SCC 606

2003 (2) L.L.N. 913

(2010) 15 SCC 596 W.P.Nos.488 & 6657 of 2022

rejected by treating him as an ineligible candidate, the learned Senior

Counsel for the petitioners placed reliance upon the judgment of the

Hon'ble Supreme Court in the case of Parvaiz Ahmad Parry Vs. State

of Jammu and Kashmir and others4. Thus, he submitted that the

decision of respondents 1 and 2 should be set aside and a direction

should be given to the official respondents to consider the candidature of

B.P.Ed. holders also for the recruitment to the posts of PETs for Classes

VIII and below and also for IX and X Classes.

9. The official respondents filed a counter affidavit along with stay

vacate petition which is numbered as I.A.No.5 of 2022. In the said

counter affidavit, it is stated that the TSPSC had initially issued

notification for filling up of 616 Physical Education Teacher posts in

five (5) Residential Educational Institution Societies vide Notification

No.08/2017 dt.06.02.2017 and applications were invited online from the

candidates who possessed requisite qualifications. According to the said

Notification, the prescribed qualification was only a pass in Intermediate

Examination of Board of Intermediate Education and an Under Graduate

Diploma in Physical Education from an Institution recognized by a

(2015) 17 SCC 709 W.P.Nos.488 & 6657 of 2022

University. It is submitted that after considering the requests made by

various B.P.Ed. holders, the Government has constituted a Committee

which recommended the consideration of B.P.Ed. holders also for the

post of PET and accordingly, a revised Notification No.16/2017

dt.14.04.2017 inviting applications from the candidates who possess

requisite qualifications, was issued and the vacancies advertised in the

Notification No.16/2017 were 616. It is submitted that pursuant to the

said Notification, the TSPSC received applications from both the

candidates possessing, i.e., D.P.Ed. and B.P.Ed. qualifications and a

written examination was also held in the month of May, 2017 and the

merit list was displayed and meritorious candidates were called for

certificate verification and it was at that stage, that W.P.No.3019 of

2018 was filed and thereafter, aggrieved by the order of the Single

Judge, W.A.No.210 of 2020 was filed and in accordance with the

directions of the Division Bench, which was passed with the consent of

all the concerned, the 1st respondent has taken a decision and

communicated the same vide proceedings dt.08.12.2021 to the 2nd

respondent, by virtue of which, for the posts of PETs for Classes V to

VIII, only D.P.Ed. candidates were made eligible and for the posts of

PETs for Classes IX and X, only B.P.Ed. candidates were made eligible.

W.P.Nos.488 & 6657 of 2022

It is submitted that the issue of segregation of qualifications for Classes

V to VIII and Classes IX and X has already been decided by the learned

Single Judge and is confirmed by the Hon'ble Division Bench and

therefore, the Writ Petition challenging the decision of the State is not

maintainable. It is submitted that it is only pursuant to the directions of

the Court that the official respondents have taken a decision and it is

within the realm of the State to prescribe the requisite qualification for

the posts of PETs in the schools pertaining to respondents 3 to 7.

Therefore, according to the learned Government Pleader representing

the learned Advocate General appearing for the State of Telangana, this

Writ Petition is to be dismissed.

10. The learned Government Pleader also placed reliance upon the

judgment of the Hon'ble Supreme Court in the case of Zahoor Ahmad

Rather and others Vs. Sheikh Imtiyaz Ahmad and others5, wherein

the Hon'ble Supreme Court has extensively considered the case law on

the subject and has held that inference cannot be drawn that a higher

qualification necessarily presupposes the acquisition of another, albeit

lower, qualification and the prescription of qualifications for a post is a

(2019) 2 SCC 404 W.P.Nos.488 & 6657 of 2022

matter of recruitment policy and the State, as the employer, is entitled to

prescribe the qualifications as a condition of eligibility. It was further

held that equivalence of a qualification is not a matter which can be

determined in exercise of the power of judicial review and a particular

qualification should or should not be regarded as equivalent is a matter

for the State, as the recruiting authority, to determine. The learned

Government Pleader submitted that the decisions relied upon by the

learned Senior Counsel for the petitioners were considered by the

Hon'ble Apex Court in the case of Jyoti K.K. and others Vs. Kerala

Public Service Commission and others (3 supra) and were

distinguished and therefore, the said decision is not applicable to the

facts of the case before this Court. He further placed reliance upon the

subsequent judgment of the Hon'ble Supreme Court in the case of Chief

Manager, Punjab National Bank and another Vs. Anit Kumar Das6,

wherein the decision in the case of Zahoor Ahmad Rather and others

Vs. Sheikh Imtiyaz Ahmad and others (5 supra) has been considered

and it was held that it is for the employer to determine and decide

relevancy and suitability of qualifications for any post and it is not for

the Courts to consider and assess the same. He therefore submitted that

2020 SCC OnLine SC 897 W.P.Nos.488 & 6657 of 2022

the official respondents are only following the decision of the Hon'ble

Division Bench in W.A.No.210 of 2020 and therefore, the Writ Petition

which is seeking a direction contrary to the decision of the Hon'ble

Division Bench is to be dismissed.

11. The unofficial respondents 9 to 13, who are the petitioners in

W.P.No.3901 of 2018, got impleaded in W.P.No.488 of 2022 by filing

I.A.No.4 of 2022 and since they are necessary parties, the said I.A. was

allowed and they were impleaded as respondents 9 to 13. They have

filed an affidavit stating that the Writ Petition is not maintainable as by

way of the present Writ Petition, the petitioners are seeking to set at

naught the order of the Division Bench in W.A.No.210 of 2020

dt.08.03.2021 and are seeking a clarification/interpretation of the said

order of the Division Bench which amounts to reviewing the order of the

Division Bench which is not permissible in this Writ Petition and

therefore, it is to be dismissed as not maintainable. It is further

submitted that the Single Judge of this Court has considered all the

relevant issues in W.P.No.3109 of 2018 and has issued certain directions

in para 67 of its order and in W.A.No.210 of 2020, the Hon'ble Division

Bench has confirmed sub-para (a) of para 67 of the order and has clearly W.P.Nos.488 & 6657 of 2022

held that all the other directions in sub-paras (b) to (f) of para 67 will go.

They submitted that since it is an order passed with the consent of all the

parties and the State has only followed the said directions and has

segregated the posts as PETs for Classes VIII and below and PETs for

Classes IX and X and has prescribed the minimum educational

qualifications as per NCTE Regulations of 2014, there is no illegality or

irregularity in the decision taken by the official respondents.

12. Learned counsel for respondents 9 to 13, Sri S. Rahul Reddy,

vehemently argued that both D.P.Ed. and B.P.Ed. are two different

courses and both are independent and since D.P.Ed. is not a lower

qualification to B.P.Ed., and the qualification prescribed under NCTE

Regulations, 2014 is unambiguous, the classification done by the official

respondents restricting the recruitment of PET posts for Classes up to

VIII to only D.P.Ed. holders is reasonable and justified. It is submitted

that the petitioners have approached this Court only after realising that

the posts which are meant for Classes IX and X are far less than the

posts earmarked for Classes up to VIII and that such a contention cannot

be accepted because it is in the realm of the employer to regulate or

specify the minimum educational qualifications required for the posts.

W.P.Nos.488 & 6657 of 2022

He placed reliance upon the educational qualifications prescribed by

NCTE for the posts of PETs in the Second Schedule to the Regulations.

He also placed reliance upon the decisions which are being relied upon

by the learned Government Pleader and further on the decision of the

Hon'ble Supreme Court in the case of Maharashtra Public Service

Commission through its Secretary Vs. Sandeep Shriram Warade

and others7, wherein it has been reiterated that essential qualifications

for appointment to a post are for the employer to decide according to the

needs and nature of the work and he may also prescribe additional or

desirable qualifications, including any grant of preference. He further

placed reliance upon the decision of the Hon'ble High Court of Jammu

and Kashmir at Srinagar in the case of J&K Service Selection

Recruitment Board and another Vs. Basit Aslam Wani and others8,

wherein it was held that a candidate holding a degree of Bachelor of

Pharmacy is not eligible for appointment to Junior Pharmacist in Health

Department of the erstwhile State of Jammu and Kashmir for which

Diploma in Pharmacy is the qualification prescribed by the rules.

(2019) 6 SCC 362

LPASW No.194/2018 IA No.01/2018 C/W LPASW 161/2017 dt.13.10.2020 W.P.Nos.488 & 6657 of 2022

13. Respondent No.2, i.e., TSPSC has also filed counter affidavit and

after going through the averments therein, it is noticed that its averments

therein are in line with the counter filed by the Government.

14. The learned counsel for the petitioners has filed a reply affidavit

to the counter affidavits filed by the official as well as unofficial

respondents annexing therewith the norms and standards as prescribed

by the NCTE. As per Notification dt.28.11.2014, the regulations called

"the National Council for Teacher Education (Recognition Norms and

Procedure) Regulations, 2014, were notified and Section 9 thereof

prescribes the norms and standards, which every institution offering the

programmes shown in the table thereunder shall have to comply with,

for various teacher education programmes as specified in Appendix-1 to

Appendix-15 thereof. Item 6 in the table refers to Diploma in physical

education programme leading to Diploma in Physical Education

(D.P.Ed.) and item 7 refers to Bachelor of Physical Education

Programme leading to Bachelor of Physical Education (B.P.Ed.) degree

and which is shown at Appendix-7. He has referred to Appendices-6 and

7 thereof, wherein the eligibility for the said courses is Senior Secondary

School, i.e. (+2) or its equivalent examination passed with at least 50% W.P.Nos.488 & 6657 of 2022

marks and it is mentioned in Appendix-6 as professional programme

meant for preparing physical education teachers for elementary stage of

school education (Classes I to VIII) and as per Appendix-7, which

prescribes the norms and standards for bachelor of physical education

programme leading to Bachelor of Physical Education (B.P.Ed.) Degree,

it is meant for preparing teachers for physical education in Classes VI to

X and for conducting physical education and sports activities in Classes

XI and XII. Therefore, he submitted that the B.P.Ed. holders are also

trained for imparting physical education to Classes VI to X and

therefore, as per the NCTE Regulations, the petitioners are eligible to be

considered for the post of PET for Classes VIII and below.

W.P.No.6657 of 2022:

15. It is stated by the learned Government Pleader appearing on

behalf of the learned Advocate General that the counter filed in

W.P.No.488 of 2022 may be treated also as the counter filed in

W.P.No.6657 of 2022 as the facts and circumstances in both the Writ

Petitions are similar.

W.P.Nos.488 & 6657 of 2022

16. Having regard to the rival contentions and the material on record,

this Court finds that the following questions arise for consideration.

(1) Whether the order in W.P.No.3019 of 2018 subsists after the

order passed in W.A.No.210 of 2020 and whether this Writ

Petition is maintainable ?

(2) Whether the NCTE Norms and Regulations allow B.P.Ed.

candidates to teach Classes VIII and below ?

17. With regard to the first question, it is noticed that W.P.No.3019 of

2018 was disposed of vide orders dt.16.09.2019 by considering the

following questions.

"(a) Whether there can be a single entrance exam/test for nongraduates and graduates for all the vacant posts of PET in respondent No.2 and 4 to 7 institutions, whether for classes I to VIII or for classes IX and X?

(b) Whether the TSPSC has prescribed qualifications in tune with the applicable NCTE Regulations?

(c) Whether the petitioners and some of the respondents supporting the petitioners who have appeared for the entrance examination held pursuant to the above notification in May, 2017, can question the said notification?

W.P.Nos.488 & 6657 of 2022

(d) Whether there is a necessity to amend the bylaws of respondents 2 and 4 to 7 first to be in tune with the above NCTE Regulations before the said institutions can place an indent with the TSPSC to fill up the said vacancies, since it is the admitted contention that the byelaws prescribe only Intermediate exam with Under-graduate Diploma in Physical Education and do not contemplate consideration of Graduates for appointment to the said posts?

(e) To what relief?"

Point (a) was answered by holding that unequals (non-

graduates/Diploma holders and Graduates) cannot be treated as equals,

and that the same cut-off marks cannot be prescribed for both classes

and such action on the part of the TSPSC violates Article 14 of the

Constitution of India.

Point (b) was answered by holding that TSPSC cannot claim to

have acted in accordance with the NCTE Regulations of 2014 when it

did not conduct different exams for PETs who handle classes I to VIII

and for those who handle classes IX and X or at least prescribes a

different cut-off marks in the examination conducted by it for non-

graduate and graduates.

Point (c) was answered by holding that the contention of the

Additional Advocate General and the Senior Counsel appearing for W.P.Nos.488 & 6657 of 2022

some of the respondents that the petitioners are stopped from filing the

Writ Petition after participating in the selection process conducted by

the TSPSC is rejected.

Point (d) was answered by holding that notwithstanding the

bylaws or service rules framed by the respondents 2 and 4 to 7, in the

event they are in conflict with what is prescribed by the NCTE, the

NCTE Regulations would prevail and the respondents No.1 to 7 have

rightly taken note of the NCTE Regulations and applied them to the

instant recruitment.

Point (e) was answered by holding that if the entire process

initiated by TSPSC is set at nought on the basis of the above findings, it

would cause hardship not only to the candidates who participated in the

examination, but also to the Institutions themselves if the posts are not

filled up.

The Hon'ble High Court has ultimately modified the relief sought

for by the petitioners and has granted the following reliefs:

(a) the respondent NOs.1 to 7 are directed to identify the PET posts which would be required for (i) Classes I to VIII or Classes V to VIII and (ii) Classes IX and X in respondent Nos.2, 4 to 7 institutions;

W.P.Nos.488 & 6657 of 2022

(b)respondent Nos.1 to 7 shall prescribe a higher cut off mark for Graduates who are eligible as per the NCTE Regulations referred to above only for the posts of PETs earmarked for Classes IX and X;

(c) respondent Nos.1 to 7 shall prescribe a lower cut off mark for non- Graduates like the petitioners who are also eligible as per the NCTE Regulations referred to above for the posts of PETs earmarked for Classes I to VIII or Classes V to VIII;

(d) respondent Nos.1 to 7 shall consider on the basis of the cut off marks so fixed, qualified Graduate candidates only for the posts of PETs earmarked for Classes IX and X;

(e) respondent Nos.1 to 7 shall consider on the basis of the cut off marks so fixed, qualififed non-Graduate candidates like the petitioners only for the posts of PETs earmarked for Classes I to VIII or Classes V to VIII;

(f) the TSPSC shall publish a fresh list of selected candidates as per the above norms within eight weeks from the date of receipt of a copy of this order; and

(g) respondent Nos.1 to 7 shall then take further steps to fill up the said posts with such qualified candidates.

18. When the said order was challenged by both the degree holders in

W.A.No.210 of 2020 and also the Government in W.A.No.210 of 2020

and the Diploma holders were also impleaded as party respondents to

the Writ Appeal, it is noticed that on the basis of the synopsis of the W.P.Nos.488 & 6657 of 2022

arguments filed by each of the parties, the Writ Appeal was disposed of

with the following observations:

"4. In the course of submissions, learned Additional Advocate General states, on instructions, that the State may be permitted to comply with the directions issued in the impugned judgment, calling upon it to identify and segregate the PET posts that would be required to be filled up by those teachers, who would be imparting physical education to students studying in classes up to Class VIII and to those teachers, who would be imparting physical education to students studying in Classes IX and X in the respondents No.6, 8 to 11/Institutions. He submits that after the said segregation is done, the eligibility of the candidates for the subject posts shall be considered strictly in terms of the NCTE Regulations and on merit. It is submitted that once the appellant/State has agreed to separate the cadre of the teachers, who have applied for the PET posts into the posts that will be earmarked for PETs upto Class VIII and posts that will be earmarked for PETs for Class IX and X, then the remaining directions contained in clauses (b) to (f) of Para 67 of the impugned judgment will go and a fresh list of selected candidates shall be published by the State by segregating the cadre as stated above, within two weeks.

5. Mr. S. Rahul Reddy, learned counsel for the respondents No.1 to 5/writ petitioners and Mr.D.Prakash Reddy, learned Senior Counsel appearing for the appellants in W.A.Nos.938 of 2019 and 105 of 2020 are agreeable to the aforesaid submission.

6. Accordingly, with the consent of the parties, the present appeals are disposed of in terms of the submission made by learned Additional Advocate General, as recorded above along with the pending applications, if any. The appellant/State is directed to W.P.Nos.488 & 6657 of 2022

complete the entire exercise and publish the list of selected candidates in the two cadres at the earliest, preferably within two weeks from today."

19. Learned counsel for the petitioners had argued that since the Writ

Appeal has been disposed of, the order of the Writ Petition has merged

with the Writ Appeal order and hence, only such of the findings of the

learned Single Judge which are confirmed by the Division Bench, are

relevant. He had referred to the Judgment of the Hon'ble Supreme Court

in the case of Chandi Prasad and others Vs. Jagdish Prasad and

others9, wherein the Hon'ble Supreme Court has dismissed the doctrine

of merger and held that the doctrine of merger does not make a

distinction between an order of reversal, modification or an order of

confirmation passed by the appellate authority and it postulates that

there cannot be more than one operative decree governing the same

subject-matter at a given point of time. It was further held that when an

appellate court passes a decree, the decree of the trial court merges with

the decree of the appellate court and even if and subject to any

modification that may be made in the appellate decree, the decree of the

appellate court supersedes the decree of the trial court. In other words,

(2004) 8 SCC 724 W.P.Nos.488 & 6657 of 2022

merger of a decree takes place irrespective of the fact as to whether the

appellate court confirms, modifies or reverses the decree passed by the

trial Court. In this judgment, the Hon'ble Supreme Court has also

referred to the judgment of the Hon'ble Supreme Court in the case of

Kunhayammed Vs. State of Kerala10, wherein the doctrine of merger

has been explained.

20. The learned counsel for the petitioners further placed reliance

upon the judgment of the Hon'ble Apex Court in the case of

Omprakash Verma and others Vs. State of Andhra Pradesh and

others11 on the doctrine of merger only.

21. Applying these principles to the case on hand and from the

reading of the above judgments in the Writ Petition and also the Writ

Appeal, it is clear that the findings of this Court in W.P.No.3019 of

2018 are not set aside, but the directions have been modified on the

agreement of all the concerned parties. The direction of the Division

Bench was to identify and segregate the PET posts that would be

required to be filled up by those teachers, who would be imparting

(2000) 6 SCC 359

(2010) 13 SCC 158 W.P.Nos.488 & 6657 of 2022

physical education to students studying in classes up to Class VIII and

to those teachers, who would be imparting physical education to

students studying in Classes IX and X in the respondent Institutions.

The further direction was that the eligibility of the candidates for the

subject posts shall be considered strictly in terms of the NCTE

Regulations and on merit. From the above direction and also the finding

of the Single Judge that qualifications have to be prescribed in tune with

the NCTE Regulations, that the respondents are required to follow the

NCTE Regulations while prescribing the qualifications for appointment

of teachers imparting physical education to students studying in Classes

up to VIII and to those teachers who are imparting physical education to

students studying in Classes IX and X, it is clear that the order in

W.P.No.3019 of 2018 is not set at naught in its entirety but only the

directions have been modified. Since the directions of the Division

Bench are not followed in its letter and spirit and in accordance with the

understanding of the parties before the Division Bench, this Writ

Petition has been filed and therefore this Court is of the opinion that the

Writ Petition is maintainable.

W.P.Nos.488 & 6657 of 2022

22. As regards the second question, this Court finds that the directions

of the Single Judge in the Writ Petition as well as the Division in the

Writ Appeal are to decide the eligibility of the candidates for the subject

posts strictly in terms of the NCTE Regulations. Therefore, it is

pertinent to understand the NCTE Regulations and whether the action of

the respondents is in accordance with the NCTE Regulations. The

National Council for Teacher Education (NCTE) has issued a

Notification on 12.11.2014 amending the Regulations and also issued

Regulations in supersession of the National Council for Teacher

Education (Determination of Minimum Qualifications for Recruitment

of Teachers in Schools) Regulations, 2001 except as respects things

done or omitted to be done before such supersession. The Regulations

are called the National Council for Teacher Education (Determination of

Minimum Qualifications for Persons to be recruited as Education

Teachers and Physical Education Teachers in Pre-primary, Primary,

Upper Primary, Secondary, Senior Secondary or Intermediate Schools or

Colleges) Regulations, 2014. These Regulations are applicable for

recruitment of teachers and Physical Education Teachers in any

recognised school imparting Pre-primary, Primary, Upper Primary, W.P.Nos.488 & 6657 of 2022

Secondary or Senior Secondary or Intermediate Schools or Colleges

imparting senior secondary education. For the purpose of the Regulation

2, the term "School" includes a school established, owned and

controlled by the Central Government, or the State Government or a

local authority. Therefore, the NCTE Regulations are applicable to the

schools established, owned and controlled by the Government for the

State of Telangana.

23. The next issue is regarding the qualifications, which are as given

in the First and Second Schedules annexed to the Regulations.

Regulation 5 provides for power of relaxation to the Council if it is

satisfied on receipt of reference from the concerned State Government

that special circumstances exist warranting relaxation of some of the

provisions of the Regulations and it may grant relaxation of that

provision to such extent, for such time period and subject to such

conditions and limitations as it may consider necessary, in a just and

equitable manner. It is also provided that no relaxation, shall be granted

under these Regulations with regard to the minimum qualifications for

appointment of teachers for Level 3, i.e., Class I to VIII, as specified in

the First Schedule. The First Schedule provides for the minimum W.P.Nos.488 & 6657 of 2022

qualifications for appointment of teachers in Pre-primary, Primary,

Upper Primary, Secondary, Senior Secondary/Intermediate schools and

colleges. It is noticed that there are no relaxations in the Regulations of

NCTE as no such request was made by the State Government. Further,

in this case, this Court is concerned with Classes VI to VIII and IX and

X respectively. The Second Schedule deals with the minimum

qualifications for appointment of physical education teachers in

Primary, Upper Primary, Secondary, Senior Secondary/ Intermediate

schools and colleges. For Primary and Upper Primary Classes, i.e.,

Classes I to VIII, it is prescribed as

(a) Senior Secondary or Class XII or its equivalent with at least

50% marks from recognized board

Or

Candidates who have passed the Senior Secondary

examination (+2) or its equivalent and have participated in

sports/games at least school/college/district level in

accordance with the National Council for Teacher Education

(Recognition Norms and Procedure) Regulations, 2007

notified on 10.12.2007

Or W.P.Nos.488 & 6657 of 2022

Senior Secondary (Class XII or its equivalent) with at least

45% marks from recognized board (in accordance with the

National Council for Teacher Education (Form of application

for recognition, the time limit of submission of application,

determination of norms and standards for recognition of

teacher education programmes and permission to start new

course or training) Regulations, 2002 notified on 13.11.2002.

and

(b) Certificate/Diploma in Physical Education of duration not less

than two years (or its equivalent) from any National Council

for Teacher Education recognized institution.

24. The minimum qualifications prescribed for recruitment as

Physical Education Teacher in Secondary/High School, i.e., Classes IX

and X are:

(a) Bachelor's degree with Physical Education as an elective

subject with 50% marks

Or

Bachelor's degree with Physical education as an elective

subject with 45% marks and participation in National or State W.P.Nos.488 & 6657 of 2022

or Inter-University competitions in sports or games or

athletics recognized by Association of Indian University or

Indian Olympic Association

Or

Bachelor's degree with 45% marks and having participated in

National or State or Inter-University sports or games or

athletics.

And

(a) Bachelor of Physical Education (B.P.Ed.) of at least one year

duration (or its equivalent) from any National council for

Teacher Education recognized institution.

25. In view of the above prescribed qualifications, it is noticed that

for Classes from Class I to Class VIII, in addition to possessing the

minimum educational qualification, i.e., Class XII or its equivalent, the

candidates are also required to have completed Diploma in Physical

Education course of duration not less than two years from any National

Council for Teacher Education recognized institution and for Classes IX

and X, a bachelor's degree and a course in which a bachelor's degree of

Physical Education of at least one year duration (or its equivalent) from W.P.Nos.488 & 6657 of 2022

any National Council for Teacher Education recognized institutions.

Therefore, for all classes, i.e., Classes I to VIII and IX and X, the

candidates have to complete the courses as specified above and possess

the certificates of D.P.Ed. or B.P.Ed. from any National Council for

Teacher Education recognized institutions.

26. It is therefore relevant and necessary to consider the curriculum

and criteria prescribed by NCTE for D.P.Ed. and B.P.Ed courses. The

Curriculum Framework of Bachelor of Physical Education Two-year-

Programme prescribed as per the Guidelines of NCTE and the

Curriculum Framework of Diploma in Physical Education Two-year-

Programme prescribed as per the Guidelines of NCTE are both filed by

the learned counsel for the petitioners to demonstrate that the training

given for B.P.Ed. candidates is for Classes VI to X. The NCTE has

issued a Notification dt.28.11.2014 issuing Regulations which are called

the National Council for Teacher Education (Recognition Norms and

Procedure) Regulations, 2014. As per Regulation 9 thereof, the norms

and standards which should be followed by every Institution offering the

programmes shown in the table have to be complied with for various

teacher education programmes. Appendix-6 prescribes the norms and W.P.Nos.488 & 6657 of 2022

standards for Diploma in Physical Education Programme leading to

Diploma in Physical Education, while Appendix-7 gives the norms and

standards to follow for Bachelor of Physical Education Programme

leading to Bachelor of Physical Education degree. Appendix-6

prescribes that the D.P.Ed. programme is a professional programme

meant for preparing physical education teachers for elementary stage of

school education, i.e., Classes I to VIII, while Appendix-7 prescribes

that the Bachelor of Physical Education programme is a professional

programme meant for preparing teachers for physical education in

Classes VI to X and for conducting physical education and sports

activities in classes XI to XII. Therefore, it is clear that the B.P.Ed.

candidates are trained for imparting physical education to students in

Classes VI to X, i.e., for Classes VI to VIII as well.

27. In view of these submissions and also the finding of this Court in

W.P.No.3019 of 2018 that the NCTE norms have to be strictly followed

and also in view of the undertaking given by the Government before the

Division Bench in W.A.No.210 of 2020 that the appointments shall be

made strictly in accordance with the NCTE norms, this Court is of the

opinion that the respondents are not correct in holding that the B.P.Ed.

W.P.Nos.488 & 6657 of 2022

candidates are eligible only for participating in the recruitment of

teachers for the posts meant for Classes IX and X.

28. The learned counsel for the petitioners had placed reliance upon

the following judgments in support of his contentions that higher

qualification must pre-suppose acquisition of lower qualification

prescribed for that post for such candidate to be eligible.

(1) Jyoti K.K. and others Vs. Kerala Public Service Commission and others (3 supra).

(2) Parvaiz Ahmad Parry Vs. State of Jammu and Kashmir and others (4 supra).

(3) Mohd. Riazul Usman Gani and others Vs. District & Sessions Judge, Nagpur and others (1 supra).

(4) District Collector, Anantapur and others Vs. K.Sujatha (2 supra).

All these judgments have laid down the principle that the qualification

of degree in a subject presupposes the acquisition of lower qualification

of diploma in that subject prescribed for the post and shall be considered

to be sufficient for that post.

W.P.Nos.488 & 6657 of 2022

29. In the case of Mohd. Riazul Usman Gani and others Vs.

District & Sessions Judge, Nagpur and others (1 supra), it was

observed that a person possessing higher qualification than the

minimum qualification prescribed cannot be denied appointment merely

on the ground that he may not be willing to perform the duties of the

lower cadre. The Hon'ble Supreme Court has held that in such

circumstances, if an employee does not perform the duties attached to

the post, disciplinary proceedings can certainly be taken against him, but

that cannot be a ground for denying consideration of his case for

appointment.

30. A Coordinate Bench of this Court in the case of District

Collector, Anantapur and others Vs. K. Sujatha (2 supra) has

observed that possessing a qualification higher than the minimum

qualification should not be treated as a disadvantage to the candidate.

31. Contrary to the above judgments, the learned Advocate General

and also the learned counsel for respondent No.2 have relied upon

various case law to the effect that higher qualification does not

necessarily presuppose acquisition of lower qualification which is the

prescribed minimum qualification for the post.

W.P.Nos.488 & 6657 of 2022

32. This Court finds that as per NCTE Regulations, the bachelor

degree holders were also trained for Classes VI to X. In view thereof,

the bachelor's degree is also to be considered as meeting the

requirement of teaching Classes VI to X.

33. In the result, both the Writ Petitions are allowed and the

respondents are directed to re-issue the Notification in accordance with

the above directions, i.e., allowing D.P.Ed. candidates to appear for

examination only for Classes VI to VIII and allowing B.P.Ed.

candidates to appear for examination for both Classes VI to VIII and

also Classes IX and X. No order as to costs.

34. Pending miscellaneous petitions, if any, in both the Writ Petitions

shall stand closed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 26.10.2022 Svv