Rajasthan High Court - Jaipur
Ram Narayan Saini And Ors vs Satish Kumar And Ors on 18 December, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
(1) D.B. Special Appeal (Writ) No. 572/2018
In
S.B. Civil Writ Petition No. 18442/2017
1. State of Rajasthan through its Principal Secretary, Panchayati
Raj Department, Government of Rajasthan, Secretariat, Jaipur.
2. The Director, Elementary Education, Bikaner (Rajasthan).
Appellants
Versus
1. Satish Kumar S/o Shri Dalip Singh, aged 25 years, R/o Village
Ramsar, Post Pacheri Chhoti, Tehsil Buhana, District Jhunjhunu
(Rajasthan).
Respondent
2. Sushila Kumari Yadav D/o Shri Mukhtyar Singh, R/o P. N. 5,
Payal Vihar Colony, Jaipur 302030 (Rajasthan).
3. Satpal S/o Shri Mahander Kumar, R/o Village & Post Ramsara
Narayan, District Hanumangarh (Rajasthan).
Proforma Respondents
Connected With
(2) D.B. Special Appeal (Writ) No. 571/2018
In
S.B. Civil Writ Petition No. 18442/2017
1. Arjun Parihar S/o Shri Chunni Lal Parihar, aged about 25
years, Resident of 908, Nai Abadi, Kuntaliya, Pali.
2. Mayank Jain S/o Shri Satyapal Singh Jain, aged about 28
years, Resident of Adarsh Nagar, Aklera, District Jhalawar.
3. Devki Nandan Acharya S/o Shri Harlal Acharya, Resident of
Village Shobhasar, Tehsil Sujangarh, District Churu.
4. Manmohan Ranga S/o Shri Giriraj Ranga, aged about 30
years, Resident of Daga Chowk, Bikaner.
5. Suryaprakash Upadhyay S/o Shri Kailash Chand Upadhyay,
aged about 29 years, Resident of Village Piplai, Tehsil
Bhamanbas, District Swaimadhopur.
Appellants
Versus
1. State of Rajasthan through its Principal Secretary, Panchayati
Raj Department, Government of Rajasthan, Secretariat, Jaipur
(2 of 50) [SAW-572/2018]
2. The Director, Elementary Education, Bikaner (Rajasthan).
3. Satish Kumar S/o Shri Dalip Singh, aged about 25 years,
Resident of Village Ramsar, Post Pacheti Chhoti, Tehsil Buhana,
District Jhunjhunu (Rajasthan).
Respondents
4. Sushila Kumari Yadav D/o Mukhtyar Singh, Resident of Plot
No. 5, Payal Vihar Colony, Jaipur 302030.
5. Satpal S/o Shri Mahendra Kumar, Resident of Village & Post
Ramsara Narayan, District Hanumangarh (Rajasthan).
Proforma Respondents
(3) D.B. Special Appeal (Writ) No. 573/2018
In
S.B. Civil Writ Petition No. 18442/2017
1. Ram Narayan Saini S/o Shri Babu Lal Saini, aged about 25
years, Resident of 52, Village Dev Kishanpura, Tehsil Chaksu,
Teetriya, Jaipur (Rajasthan).
2. Nidhi Shukla D/o Shri Satanand Shukla, aged about 22 years,
Resident of Village & Post Kheda, Jamalpur, Tehsil Hindaun City,
District Karauli (Rajasthan).
3. Meenakshi Chhimpa D/o Shri Jhanwar Lal Chhimpa, aged
about 36 years, Resident of E-10/80, Chitrakut Yojna, Ajmer
Road, Jaipur (Rajasthan).
Appellant-Petitioner
Versus
1. Satish Kumar S/o Shri Dalip Singh, aged about 25 years,
Resident of Village Ramsar, Post Pacheri Chhoti, Tehsil Buhana,
District Jhunjhunu (Rajasthan).
Respondent-Writ Petitioner
2. State of Rajasthan through its Principal Secretary, Panchayati
Raj Department, Government of Rajasthan, Secretariat, Jaipur
3. The Director, Elementary Education, Bikaner (Rajasthan).
4. Sushila Kumari Yadav D/o Mukhtyar Singh, R/o P. N. 5, Payal
Vihar Colony, Jaipur 302030 (Rajasthan).
5. Satpal S/o Shri Mahander Kumar, R/o Village Post Ramsara
Narayan, District Hanumangarh (Rajasthan).
Respondents
(3 of 50) [SAW-572/2018]
(4) D.B. Special Appeal (Writ) No. 581/2018
In
S.B. Civil Writ Petition No. 18442/2017
1. Bablu Kumar Yogi S/o Shri Jagdish Narayan Yogi, aged 22
years, Resident of V.P.O. Indergarh, Jamwaramharh, Jaipur.
2. Rohit Bhambhu S/o Shri Mahaveer Prasad Bhambhu, aged 26
years, R/o V.P.O. Kamana, Tehsil and District Hanumangarh.
3. Chetan Das S/o Shri Mani Ram, aged about 34 years, R/o
V.P.O. Ratanpur, Tehsil Padampur, District Sriganganagar.
Appellants
Versus
1. State of Rajasthan through its Principal Secretary, Panchayati
Raj Department, Government of Rajasthan, Secretariat, Jaipur
2. The Director, Elementary Education, Bikaner (Rajasthan).
3. Sushila Kumari Yadav D/o Mukhtyar Singh, R/o Plot No. 5,
Payal Vihar Colony, Jaipur 302030.
4. Satpal S/o Shri Mahander Kumar, R/o Village & Post Ramsara
Narayan, District Hanumangarh (Rajasthan).
5. Satish Kumar S/o Shri Dalip Singh, aged about 25 years, R/o
Village Ramsar, Post Panheri Chhoti, Tehsil Buhana, District
Jhunjhunu (Rajasthan).
Respondents
(5) D.B. Civil Writ Petition No.19935/2018
1. Anil Chulate S/o Shri Hari Narayan Sharma, aged about 25
years, R/o Village Kanpura, Post Mahar Kalan, Tehsil Chomu,
District Jaipur (Rajasthan).
2. Avinash Sharma S/o Shri Mahaveer Prasad Sharma, aged
about 25 years, R/o 43-K, Indra Colony, Ganesh Nagar, Railway
Station Road, Chomu, District Jaipur (Rajasthan).
3. Ganesh Kumar Kumawat S/o Shri Babu Lal Kumawat, aged
about 31 years, R/o Village & Post Tigariya, Via Etawa Bhopji,
District Jaipur (Rajasthan).
4. Satish Kumar S/o Shri Dalip Singh, aged 26 years, R/o
Village Ramsar, Post Pacheri Khurd, Tehsil Buhana, District
Jhunjhunu (Rajasthan).
5. Devendra Singh S/o Shri Balbir Singh, aged about 26 years,
(4 of 50) [SAW-572/2018]
R/o Village & Post Bhirr, Tehsil Buhana, District Jhunjhunu
(Rajasthan).
Petitioners
Versus
1. State of Rajasthan through its Principal Secretary,
Panchayati Raj Department, Government of Rajasthan,
Secretariat, Jaipur
2. The Director, Elementary Education, Bikaner (Rajasthan).
3. Amit Sharma S/o Shri Suresh Chand Sharma, B/c Brahamin,
Resident of Near Post Office, Indira Colony, Karauli.
4. Chandra Punit Sharma S/o Shri Jagnath, B/c Brahamin,
Resident of VPO Nibhera, Tehsil Laxmangarh, District Sikar.
5. Pramod Kumar Verma S/o Shri Heeralal Verma, Village
Talwana, District Alwar.
6. Shishupal Singh S/o Shri Sahab Ram, aged about 24 years,
R/o Ward No. 8, VPO Dholipal, Tehsil & District Hanumangarh-
335064 (Merit No. 1982).
7. Girraj Prasad S/o Shri Bheem Singh, aged about 24 years,
R/o VPO Pataliya, Tehsil Kotkasim, District Alwar-301403 (Merit
No. 1391).
8. Suresh Kumar S/o Shri Krishana Ram, aged about 25 years,
R/o Village Nimba Ka Bas, Post Bansa, Tehsil Deedwana,
District Nagaur-341506 (Merit No. 3379).
9. National Council for Teacher Education (NCTE) through its
Regional Director, Fourth Floor, Deevan Nidhi-II, LIC Building,
Bhawani Singh Marg, Ambedkar Circle, Jaipur-302005
(Rajasthan).
Respondents
For Appellant(s) : Mr. Kailash Vasdev, Senior Counsel
with Mr. S.K. Gupta, AAG, Mr. Shiv
Mangal, AAG, Mr. Shrey Kapoor, Mr.
Y.S. Jaudan, for appellant in SAW No.
572/2018 and for respondents in
remaining cases.
Mr. A.K. Sharma, Senior Counsel
assisted by Mr. V.K. Sharma and Mr.
Rachit Sharma, for appellant in SAW
No. 571/2018 and for respondents in
(5 of 50) [SAW-572/2018]
Writ Petition No. 19935/2018.
Mr. Sunil Samdaria, for appellant in
SAW No. 581/2018.
Mr. Tanveer Ahmed with Mr. Manish
Parihar and Ms. Sara Parveen, for
appellant in SAW No. 573/2018.
For Respondent(s) : Mr. R.N. Mathur, Senior Advocate
assisted by Mr. Prateek Mathur and
Mr. Shovit Jhajharia for respondents
in Writ Petition No. 19935/2018.
Mr. Vigyan Shah with Mr. Kamlesh Sharma, Mr. Raja Ram Choudhary, Mr. Arvind Kumar Arora and Mr. Akshit Gupta for respondents in SAW No. 572/2018 and for Petitioner in Writ Petition No. 19935/2018.
Mr. Anoop Dhand, for respondent in Writ Petition No. 19935/2018.
Mr. Ashish Sharma, for respondent-
NCTE.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment //Reportable// 18/12/2018 (Per Hon'ble Mr. Justice Mohammad Rafiq) Aforementioned appeals are directed against the judgment dated 04.04.2018 passed by the learned Single Judge of this Court whereby the writ petition filed by the respondent-writ petitioner Satish Kumar was allowed. Learned Single Judge by the aforesaid judgment set aside the notification dated 21.02.2018 whereby Rajasthan Panchayati Raj (Amendment) Rules, 2018 were promulgated, substituting Clause (3) in Rule 266 of the Rajasthan Panchayati Raj Rules, 1996 (for short 'the Rules of 1996') and consequently, also set aside the corrigendum dated 30.10.2017 amending earlier advertisement dated 11.09.2017 for (6 of 50) [SAW-572/2018] appointment on the post of Teacher Grade-III (Level-II) (Science- Mathematics) and as consequence thereof, selection list for appointment on 927 posts of Teacher Grade-III (Level II) (Science-Mathematics) was set aside, directing the respondents to redraw the same in consonance with the notification dated 29.08.2017 whereby Rajasthan Panchayati Raj (4 th Amendment) Rules, 2017 were promulgated. Writ Petition No. 19935/2018 filed by Anil Chulate and four other petitioners, also seeks to challenge the Rajasthan Panchayati Raj (Amendment) Rules, 2018 and the notification issued by the National Council for Teachers Education (for short 'the NCTE') dated 29.07.2011 and clause 9(b) of the Advertisement dated 31.07.2018 providing for common selection on the post of Teacher Grade-II Level-II in the subject of Science and Mathematics against 5728 vacancies of non-TSP Area. Since the issues raised in all these matters are common, they were clubbed and heard together.
Mr. Kailash Vasdev, learned Senior Counsel appearing on behalf of the State of Rajasthan has, at the outset, submitted that a candidate, who appears at a qualifying examination seeking appointment in terms of an advertisement/notice inviting applications for appointment, participates in the interview process and is not successful in the selection, is not entitled to challenge the advertisement or the selection process. Once having participated unsuccessfully, the candidate forfeits his rights to challenge the selection process. It is argued that the writ petition was filed at the instance of Satish Kumar who finds place at 2002 of the combined merit list. He does not find place in the merit even when separate merit list of 444 teachers in the subject of (7 of 50) [SAW-572/2018] Science and 483 teachers in the subject of Mathematics is prepared. Moreover, he has subsequently secured appointment on the post of Teacher Grade-II Hindi and joined the service. Writ petition at his instance therefore ought not be entertained to defeat legitimate right of large number of selected candidates. Learned Single Judge erred in law in allowing the writ petition, which was filed without impleading selected candidates. Writ petitioner Satish Kumar along-with others earlier challenged the advertisement only to the extent of appointment in non-TSP Area whereas appointments have already been made in TSP Area based on the same eligibility criteria. Now subsequently Satish Kumar has again joined as Petitioner No. 4 in Writ Petition No. 19935/2018 filed by Anil Chulate and others, therefore, bona fides of Satish Kumar are highly suspect. The writ petition ought to be dismissed on this ground alone.
Learned Senior Counsel argued that Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (for short, 'the RTE Act') authorizes the Central Government to specify the qualifications for appointment, and terms and conditions of service of teachers. Schedule framed under Sections 19 and 25 of the RTE Act sets out the norms and standards for a school. Item No. (b) of Serial No. 1 to the Schedule provides that there shall be at least one teacher per class so that there shall be at least one teacher each for 'Science and Mathematics' for sixth class to eighth class, apart from one teacher each for Social Studies and Languages. The criteria specified in the RTE Act thus treat Science and Mathematics as one stream. This is accepted and followed by the NCTE, which in exercise of its power under Section 23(1) of (8 of 50) [SAW-572/2018] the RTE Act, has issued guidelines for conducting the Teacher Eligibility Test (TET) under the RTE Act, prescribing minimum eligibility qualifications for teachers seeking employment in schools. It is argued that the State Government, while issuing advertisement on 11.09.2017, wrongly invited applications from eligible candidates for 'Science, Mathematics'. This notification was based on an erroneous reading of the judgment in Sher Singh & Others Vs. Dinesh singh & Others (D.B. Civil Special Appeal (Writ) No.1464/2016), which dealt with the appointment of eligible teachers in the Arts stream for different languages, being compulsory. It did not touch upon the statutory provisions that the REET examination is the principal basis for determining eligibility of candidates for being appointed as teachers. The Supreme Court in catena of judgments has held that other qualifications are only eligibility criteria for appearing at the TET, which is the basis for determining eligibility for being appointed as a teacher by maintaining national standards. The appellant-State therefore in exercise of its powers issued a corrigendum on 30.10.2017 amending the part of the advertisement clubbing Science and Mathematics in one stream for appointment of a teacher as a composite post for these subjects. This was a bona fide action on the part of the State Government, as it was bound by the directions of academic authority, namely, the NCTE, which is authorised by the Central Government as also on the principles set down under Article 258 of the Constitution of India.
It is argued that orders or enactments of the State Government operating in a particular field cannot be repugnant to (9 of 50) [SAW-572/2018] orders/enactments of the Central Government operating in the same field. Subject of the language sought to be taught is compulsory in the minimum qualification norms as is evident from notification dated 29.07.2011 issued by the NCTE. In any event, stipulation and guidelines issued by the NCTE for conducting the TET merely prescribe the minimum qualifications for appearing at the TET. They do not prescribe the subject to be taken in the graduate course/B.Ed. course or otherwise for appearing at the TET in the composite subject of Science and Mathematics. These guidelines are issued to bring in uniformity in national standards and set a benchmark for teacher education in the country. A large number of notifications have been issued by different State Governments inviting applications for appointments of teachers for the composite post of Teachers in "Science and Mathematics" on the reading of the criteria specified in the Schedule appended to the RTE Act, which provides that there must be one teacher each for Science and Mathematics for Classes VI to VIII. These provisions of the RTE Act and guidelines framed by the NCTE hold good and apply proprio vigore to such selections throughout the country. They are binding on the State, which has acted to appoint teachers in conformity with these statutory mandates framed by the Central Government. Relying on the judgment of the Supreme Court in University Grants Commission & Another Vs. Neha Anil Bobde (Gadekar), (2013) 10 SCC 519, learned Senior Counsel argued that on the jurisdiction and authority of specialized bodies like the University Grants Commission (UGC); National Council for Teacher Education (NCTE) being the sole repository of authority to specify terms and (10 of 50) [SAW-572/2018] conditions for appointment of teachers/lecturers, their view has to prevail. Same view has been reiterated by the Supreme Court in Union Public Service Commission Vs. M. Sathiya Priya & Others, 2018 (5) SCALE 668. Reliance is also placed on the judgments of the Supreme Court in V. Lavanya & Others Vs. State of Tamil Nadu Represented by its Principal Secretary & Others, (2017) 1 SCC 322 and University Grants Commission & Another Vs. Neha Anil Bobde (Gadekar) (supra).
Mr. Kailash Vasdev, the learned Senior Counsel, further argued that the learned Single Judge has committed grave error of law in holding judgment of Co-ordinate Bench of this Court at Principal Seat in Rahul Kumar Jain & Another Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No.16532/2017), as per incuriam, which on the same subject and notification, and also upon considering Sher Singh, supra, took a contrary view, as per incuriam. It is settled law that if there is a cleavage of judicial opinion between cognate benches, the matter should be referred to a larger Bench. The judgment disagreed with cannot be held to be per incuriam. Reliance in this connection has been placed on the judgment of the Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Others, (2011) 1 SCC 694. Even otherwise, as per Rule 55 of the Rajasthan High Court Rules and the orders issued by the Hon'ble Chief Justice of this Court from time to time, challenge to the statutory rules can be examined only by a Division Bench, and a Single Bench of this Court does not have jurisdiction to do so. It is argued that en mass cancellation of an (11 of 50) [SAW-572/2018] entire selection has been frowned upon by the courts save and except for good reasons. The validity or vires of the statute or legislation can be challenged on limited grounds, none of those grounds have been raised in either of the writ petitions, i.e., writ petition filed before the learned Single Judge or writ petition now filed before the Division Bench. Reliance in this behalf is placed upon judgments of the Supreme Court in Mahalaxmi Sugar Mills Company Limited & Another Vs. Union of India & Others, (2009) 16 SCC 569, and State of Kerala Vs. Peoples Union for Civil Liberties, Kerala State Unit & Others, (2009) 8 SCC
46. Learned Senior Counsel argued that the State Government has framed the Rajasthan Educational Subordinate Service Rules, 1971 (amended from time to time) under Article 309 of the Constitution of India, which inter alia provides for promotion of teachers to the Post of Senior Teachers. These Rules provide for promotion of teachers on the basis of merit-cum-seniority to the post of Senior Teacher in the subject of concerned language taken by candidate in graduation or equivalent examination. There is no basis for the assumption that there would be administrative chaos, if the subject of Science and Mathematics were not treated separately. A language teacher will be promoted in a language stream of graduation, likewise for the subject of Science or Mathematics or Social Language, as the case may be. Learned Senior Counsel submitted that the Division Bench of Gujarat High Court in Prajapati Paresh Govindbhai and Others Vs. State of Gujarat through Principal Secretary and Others - 2012 (1) G.L.H. 548 has taken the correct view, which has been upheld by (12 of 50) [SAW-572/2018] the Supreme Court. Learned Senior Counsel therefore prayed that the aforesaid appeals be allowed by setting aside the judgment passed by the learned Single Judge and the writ petitions be dismissed.
Mr. A. K. Sharma, learned Senior Counsel appearing on behalf of the selected candidates, who have assailed the judgment of the learned Single Judge in appeals, argued that the impugned judgment is wholly without jurisdiction as the learned Single Judge was coram non judice. It is submitted that sole writ petitioner Satish Kumar did not secure a merit position to be appointed either in the combined merit list drawn for common teachers of Science-Mathematics or in separate subject-wise merit list. Advertisement was issued on 11.09.2017 for total 927 vacancies, out of which 350 vacancies were for Barmer; 350 vacancies were for Jodhpur and 227 vacancies were for Udaipur. Therefore, no part of cause of action, either wholly or partly, has arisen within the territorial jurisdiction of Jaipur Bench as all the aforementioned districts fall under the jurisdiction of Principal Seat of this Court at Jodhpur. It is a fundamental principle that a defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree or order, and such a defect cannot be cured even by consent of the parties. Reliance in this connection has been placed on the judgment of the Supreme Court in Rajasthan High Court Advocates' Association Vs. Union of India & Others, (2001) 2 SCC 294. It is argued that the writ petition, which sought to challenge the select list, ought to have been dismissed for want of impleadment of necessary (13 of 50) [SAW-572/2018] parties. Reliance in this connection has been placed on the judgment of the Supreme Court in Ranjan Kumar & Others Vs. State of Bihar & Others, (2014) 16 SCC 187. Learned Single has committed grave error of law in holding that judgment of Co- ordinate Bench of this Court at Principal Seat at Jodhpur in Rahul Kumar Jain, supra, is per incuriam. The word, "incuria" stands for ignorance and the Supreme Court in catena of judgments has consistently held that rule of per incuriam can only be applied where a Court itself omits to consider a provision of law or a binding precedent of the same Court or the superior Court. Learned Single Judge at Principal Seat, Jodhpur, after considering the judgment rendered by the Division Bench in Sher Singh (supra), had rightly held that the controversy before the Division Bench was only to the extent of prescribing the educational qualification. If the learned Single Judge at Jaipur wanted to differ with that view, appropriate couse for him was to have referred the matter to the Larger bench. The judgment in Rahul Kumar Jain (supra) in any case could not have been declared as per incuriam as the learned Single in para 20 of the impugned judgment has clearly observed that the controversy involved in Sher Singh, (supra) was "somewhat identical", which means that it was not the same controversy.
Mr. Sunil Samdaria, learned counsel, while reiterating all the aforementioned arguments, submitted that direction of the learned Single Judge for drawing separate merit list for the post of teacher in the subject of Science and Mathematics is contrary to the scheme of RTE Act whereunder this post is a common structured post. It is argued that providing qualification for (14 of 50) [SAW-572/2018] Science and Mathematics streams separately cannot be a ground to segregate common structured post. In REET examination, in a common section, 60 questions of Mathematics and Science are required to be answered by the candidates. So far as language is concerned, for each language separate section is there. The judgment rendered in Sher Singh, supra, is distinguishable as the dispute therein pertained to the appointment of language teacher of English. The Division Bench did not consider and decide the issue regarding common structured post provided under the Schedule appended to the RTE Act and Rule 266(3), as substituted by Notification dated 21.02.2018. Learned Single Judge has exceeded the jurisdiction by striking down notification dated 21.02.2018 because challenge to the validity of the Rules as per the practice and procedure of this Court can be examined only by the Division Bench. Lastly, it is argued that rather than quashing the entire selection, the relief could have been moulded by the learned Single Judge by keeping one post vacant as no other candidate approached this Court. The learned Single Judge failed to consider true purport of the corrigendum dated 30.10.2017 whereby the Director, Elementary Education, Bikaner, has issued clarification to the effect that the candidates of both streams, i.e., Mathematics and Science, would be considered eligible for common structured post. Learned counsel on the aspect of territorial jurisdiction has cited judgment of the Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & Another, (2005) 7 SCC 791. On the aspect of non-impleadment of necessary parties, learned counsel cited judgment of the Supreme (15 of 50) [SAW-572/2018] Court in Prabodh Verma & Others Vs. State of Uttar Pradesh & Others, (1984) 4 SCC 251.
Mr. Anoop Dhand, learned counsel appearing on behalf of the selected candidates in the appeals as well as in the writ petition argued that the petitioners have chosen to challenge the advertisement confined to non-TSP Area and have not challenged the advertisement of TSP Area where the appointments have already been made on same criteria. Their selection has attained finality and appointed candidates have joined the service. Relying on judgment of the Supreme Court in Bal Ram Bali & Another Vs. Union of India - (2007) 6 SCC 805 and State of Uttar Pradesh & Others Vs. Anil Kumar Sharma & Another - (2015) 6 SCC 716, learned counsel argued that power of judicial review of this Court does not extend to directing the Parliament or the State Legislature to enact a particular law. This Court cannot require the State Government or the NCTE to prescribe a particular qualification. The matter ought to have been left for the expert bodies in the field, which is also the stand taken by the NCTE before this Court. It is argued that validity of rules can be challenged only on the ground of lack of legislative competence or violation of fundamental rights, neither of which has been invoked in the present case. Appointments have not been made on the post of Teachers Science/Mathematics in Upper Primary Schools in the State of Rajasthan for last 4 to 5 years. Approximately 6000 posts are lying vacant in Non-TSP Areas. When the petitioners Satish Kumar and Avinash Sharma were party to the earlier litigation in Sher Singh, supra, why did they not challenge this criteria earllier, has not been explained by them. There are, (16 of 50) [SAW-572/2018] therefore, by virtue of principles of constructive res-judicata and on the principles contained under Order II Rule 2 CPC now estopped from challengig the same. Satish Kumar, who wanted to become Science/Mathematics Teacher, having failed to secure merit challenged the selection, has stalled appointment of thousands of selected candidates and now he has himself joined the service having been selected as Hindi Teacher Grade-III Level II on 03.09.2018 at Government Girls Upper Primary School at Sarana, District Jalore. Appointment order of Satish Kumar has been placed on record.
Mr. R. N. Mathur, learned Senior Counsel appearing for the selected candidates, in addition to adopting arguments advanced by other counsel, opposed the Writ Petition No.19935/2018 filed by Anil Chulate & Others. He argued that it is up to the appointing authority to decide as to in what manner it structures cadres in various services. The Schedule appended to the RTE Act at Serial No. 1(b)(1)(i), has provided that there ought to be at least one teacher for Science and Mathematics and in doing so, the legislature has bracketed both the subjects together as a common stream. In all other States, common teachers have been appointed for the subjects of Science and Mathematics to teach the students from Class VI to VIII. Broadly, there are eight subjects referred to in the aforesaid Schedule and guidelines issued by the NCTE. Combination of any three of them would make the candidate eligible for appointment on the post of teacher Science and Mathematics as their skills are independently tested in the REET, which serves the basic eligibility qualification for appointment. The appointing authority has purposely decided to (17 of 50) [SAW-572/2018] keep them as common cadre because it forms feeder cadre for the promotional posts and at that stage, they can be appointed subject-wise. Notification dated 28.11.2014 has been issued by the NCTE under Section 32 of the NCTE Act notifying the Regulations of 2014. Only if the said rule is contrary to those regulations, then the same can be declared as ultra vires. Referring to notification dated 29.07.2011, where prescription of minimum qualification has been made, learned Senior Counsel argued that not much can be made out of the punctuation mark "," between Mathematics and Science indicated therein. The appointing authority in view of the provisions contained in Schedule appended to the RTE Act decided to treat Science and Mathematics as combined stream for appointment as teacher. On the principles of interpretation of statute, reliance has been placed on the judgment of the Supreme Court in Aswini Kumar Ghose & Another Vs. Arabinda Bose & Another, AIR 1952 SC 369.
Mr. Ashish Sharma, the learned counsel appearing for the NCTE, has submitted that the Notifications of the NCTE issued on 23.08.2010 and thereafter on 29.07.2011, do not specifically state the qualification for a subject teacher such as language teacher, social science teacher, science and mathematics teachers. This notification simply describes the academic qualifications and teaching qualifications along-with TET. The issue whether a teacher shall be appointed separately for the subjects of science and mathematics for classes VI to VIII, is primarily concerned with the State Government/Employing Authority on the basis of the relevant Rules. The learned counsel has referred to the guidelines issued by the NCTE for conducting TET dated 11.02.2011. The (18 of 50) [SAW-572/2018] Paper II for Classes VI to VIII consists of 150 marks, the fourth part of which is divided into further three parts, i.e., (a) mathematics and science subject for mathematics and science teacher, which carries 60 marks (b) social studies subject for social studies teacher, which carries 60 marks and (c) either 4(a) or 4(b) for any other teacher, which also carries 60 marks. He submitted that all that the NCTE intended to convey in para 16 of its reply filed to the writ petition of Ajay Singh Vs. State of Rajasthan being D.B. Civil Writ Petition No.11012/2016, decided vide order dated 29.05.2017, was that "pedagogy in a teacher education programme is an integral and essential component of D.El.Ed. & B.Ed. Syllabus", to which course the candidates are admitted on the basis of the subjects they have studied at the graduation level.
Per contra, Mr. Vigyan Shah, learned counsel appearing on behalf of the original writ petitioner Satish Kumar in the aforementioned appeals and on behalf of Anil Chulate and Others in Writ Petition No. 19935/2018, submitted that most of the selected candidates do not possess the qualification of the subject of Mathematics as would be evident from their affidavits filed in compliance of the order dated 07.08.2018 passed by this Court. They are claiming appointment on the post of Teacher of Science- Mathematics solely on the basis of qualifying REET/RTET examination with the subject of Science-Mathematics. The schedule appended to RTE Act provides for norms and standards for school with reference to Sections 19 and 25 of the RTE Act in respect of Class VI to VIII. Section 12(d) of the National Council (19 of 50) [SAW-572/2018] for Teacher Education Act, 1993 (for short, 'the NCTE Act) empowers the NCTE to lay down guidelines in respect of minimum qualifications for appointment as a Teacher in a recognized school. Section 12(e) of the NCTE Act empowers the NCTE to lay down the norms and for any specified categories of courses or training in teacher education including the minimum eligibility criteria for the admission thereof and method of selection of candidates, duration of the course, course content and mode of curriculum. The NCTE invoking its power under Section 32(2), in supersession of earlier Regulations of 2009, promulgated National Council for Teacher Education (Recognition Norms and Procedure) Regulation, 2014. The norms and standards for the qualification of Bachelor of Education (B.Ed.) is provided under Appendix-4 thereto. As per Clause 4.1(b) under Curriculum and Pedagogic Studies, design of the B.Ed. programme would enable the students to specialize in one disciplinary area, i.e., Social Science, Science, Mathematics, Languages and a special area from the same discipline, at Level I or Level II of schools. Similar is the position with regard to qualification of Diploma in Elementary Education (D.El.Ed.), and B.El.Ed. as Appendix 2 and Appendix 3 respectively to the Regulations of 2014. The NCTE exercising its power under Section 23(1) of the RTE Act vide notification dated 23.08.2010 and 29.07.2011 prescribed qualification for appointment as Primary Teacher (Class I to V) and Upper Primary Teacher (Class VI to VIII). Para 5(b) of notification dated 29.07.2011 provides that the minimum qualification and norms referred to therein shall apply for teachers of the Languages, Social Studies, Mathematics, Science etc., which makes it clear that Mathematics and Science (20 of 50) [SAW-572/2018] have been treated as separate subjects for which teachers must fulfill minimum qualification prescribed in the notification.
It is argued that the respondents notified 6299 posts of Teacher Grade-III (Level-I) (Class I to V) and 6045 posts of Teacher Grade-III (Level-II) (Classes VI to VIII) for Non-TSP Area. The selection was made on the basis of marks secured by the candidates in either REET, 2015 or RTET 2012 Examination. Aforesaid advertisement was challenged before this Court on several grounds. REET examination is just eligibility examination and therefore the REET alone could not be the criteria for appointment. Even according to the Ordinance 322 of the University Ordinances, qualification of Bachelor of Education (B.Ed.), which is in consonance with NCTE Regulations, provides about "Teaching Subject". This means the subject offered by the candidates at his Bachelor's or Master's Degree either as a compulsory subject or as an optional subject or as a subsidiary subject, provided that candidates studied it at University each year and passed the examination. The same Ordinance provides Mathematics, Biology, General Science, Chemistry, Physics as separate teaching subjects in B.Ed. Thus, a candidate having Physics, Chemistry, Mathematics in Graduation of B.Sc. can choose any of the two subjects as teaching subjects in B.Ed. Similarly, candidates, having options of three subjects namely Physics, Chemistry and Geology, may choose any of the two subjects in B.Ed. The candidates who are not having Mathematics as their subjects in Graduation could not have Mathematics as teaching subject in B.Ed. Respondents, while prescribing eligibility qualifications for appointment of Teacher Grade III (Level II), (21 of 50) [SAW-572/2018] should also take note of the qualification for promotional post. It was also directed that selection should not be based only on the marks of REET/RTET Examination. Subsequently, Division Bench of this Court in Ajay Singh, supra, followed the judgment of Sher Singh, supra, wherein categorical stand of the NCTE was that appointing authority should always consider pedagogical subject in B.Ed. and D.El.Ed. as teaching subjects before recruiting Upper Primary Teachers.
It is submitted that a High Level Committee of the Respondent-State in its meeting held on 30.05.2017 in compliance of direction of this Court in Sher Singh, supra, decided to prescribe separate qualifications for appointment of Teacher Grade III (Level II) in the subject of Mathematics and Science. The amendment was accordingly made in Rule 266 of the Rules of 1996 vide notification dated 30.08.2017. For the teacher of Mathematics, it was prescribed that a candidate must have passed graduation or equivalent examination with Mathematics as optional subject. Similarly, for the teacher of Science, it was prescribed that a candidate must have passed Graduation or equivalent examination with at least one subject as an optional subject from amongst Chemistry, Physics, Botany, Zoology, Microbiology, Bio Technology and Bio Chemistry. Yet when the advertisement dated 11.09.2017 was issued, the respondents have, under Clause 6.1B, consolidated 927 vacancies of Science- Maths in Non-TSP Area. Having amended the Rules vide notifiction dated 30.08.2017, the respondent-State would be estopped from doing so. It is this advertisement, which was challenged by Satish Kumar by way of the writ petition. Learned Single Judge vide (22 of 50) [SAW-572/2018] impugned judgment has rightly quashed the same relying upon Division Bench judgment of this Court in Sher Singh, supra, and notification of the NCTE dated 29.07.2011, which prescribes for separate teachers for the subjects of Science, Mathematics and Languages, etc. It is argued that merely because in the Schedule appended to the RTE Act, Science and Mathematics have been indicated together does not mean that only one teacher would suffice for teaching both the subjects. The Central Government as well as various other State Governments have provided separate posts of teachers in the subject of Science and Mathematics at the Upper Primary level. Reference is made to advertisements issued by Delhi Government, Haryana Government, Kendriya Vidhyalaya Sanghthan; Navodaya Vidhyalaya Sanghathan, which have been collectively placed on record as Annexure R-3/13. Referring to Advertisement dated 07.08.2017 issued by the State of Karnataka, learned counsel argued that Upper Primary Teachers for Science and Mathematics have been describing therein as common structured posts but with the condition that they must have studied Mathematics, Physics and Chemistry as optional subject in the Graduation Degree. State of Rajasthan ought to, therefore, make Mathematics as a compulsory subject for such appointment. Learned counsel referred to certain mark-sheets of the students of Class VI or VIII, to show that Science and Mathematics are indicated therein as separate subjects for which separate syllabus has been provided. Reference is made to Advertisement dated 09.04.2018 issued by Rajasthan Public Service Commission separately for the post of Senior Teacher (23 of 50) [SAW-572/2018] Science and Senior Teacher Mathematics, which happens to be promotional post of Teacher Grade-III.
It is argued that object of inserting Article 21A in the Constitution of India is to guarantee fundamental right of education to children between age group of 6-14 years, which can be achieved only by appointing trained teachers in a particular subject. Reliance has been placed on the judgments of the Supreme Court in Deepa Augustine Vs. Geetha Alex & Others, (2008) 16 SCC 526; State of Orissa & Another Vs. Mamata Mohanty, (2011) 3 SCC 436; State of Uttar Pradesh & Others Vs. Bhupendra Nath Tripathi & Others, (2010) 13 SCC 203 and L. Muthukumar & Another Vs. State of T.N. & Another, (2000) 7 SCC 618. It is argued that Mathematics can be an optional subject in any of the faculties of Arts, Commerce and Science. According to what the respondents have decided, even a candidate having graduation from the stream of Arts or Commerce can also become Science-Mathematics Teacher without having studied subject of Science in the Graduation. The respondents cannot prepare common merit list for selection as Science-Mathematics Teacher without ensuring that the selected candidates must have subjects of Science as well as Mathematics in their Graduation. Even as per the criteria now adopted by the respondents, 70% weightage has to be given to marks of REET/RTET Examination and 30% weightage has to be given to the marks of Graduation. If a candidate is not having Mathematics or Science subject in his graduation, his marks of graduation would have no relevance for the purpose of determination of merit. Relying on the judgment of the Supreme Court in Sasidhar (24 of 50) [SAW-572/2018] Reddy Sura Vs. State of Andhra Pradesh & Others, (2014) 2 SCC 158, learned counsel argued that terms and conditions of the advertisement cannot be in violation of statutory rules. Notification which has been issued subsequent to advertisement of vacancies cannot be applied to an on-going selection process. Therefore, notification dated 21.02.2018 cannot be applied to the process of selection initiated pursuant to Advertisement dated 11.09.2017, result whereof was declared on 25.01.2018. Learned counsel, therefore, argued that appeals be dismissed and the writ petition be allowed.
We have bestowed our anxious consideration to rival submissions and carefully examined the material on record.
We may at the outset deal with the four preliminary arguments raised by the learned Senior Counsel appearing for the State in assailing the judgment of the Single Bench. The first argument is that the learned Single Judge could not have set aside the result of the selection, which had the effect of annulling the selection list, without impleading the selected parties. The second argument is that the learned Single Judge, as per Rule 55 of the High Court Rules as also the practice and procedure of this court, did not have the jurisdiction to set aside the notification dated 21.02.2018, which, in effect, has annulled the Rules of 2018, because such power is available only with the Division Bench. The third argument is that writ petitioners having participated in the process of selection and failed to achieve a merit position are debarred by doctrine of promissory estoppel from challenging the impugned condition. And the fourth argument is that all the three districts in which the vacancies in the subject of Science and (25 of 50) [SAW-572/2018] Mathematics were notified, namely, Barmer, Jodhpur and Udaipur, fell within the territorial jurisdiction of Principal Seat of this Court at Jodhpur and no part of cause of action, either wholly or partly, has arisen in the territorial jurisdiction of the Jaipur Bench of this court. The learned Single Judge, therefore, did not have the jurisdiction to entertain the writ petitions. While the fourth of these arguments may be debatable but the appeals deserve to succeed on the first three arguments, which go to the root of the case. However, our task does not come to an end here. Since the Writ Petition No.19935/2018 filed directly before the division bench also seeks to challenge the validity of the Rules of 2018, rather than choosing to take the shorter route to decide the appeals, we deem it appropriate to examine all these matters on merits in the light of the rival submissions so as to give a quietus to the matter.
The sole premise on which the learned Single Judge has struck down the notification dated 21.02.2018 and directed preparation of separate merit list for Science and Mathematics, is the judgment rendered by Division Bench of this Court in Sher Singh, supra, therefore, we have to examine whether ratio of the aforesaid judgment can be applied to the controversy involved in the present case where the State is seeking to appoint common teachers for the subjects of Science and Mathematics. We have to examine whether the observations made in Sher Singh, supra, in the context of appointment of a teacher of a particular language, viz.; English, can be applied to appointment of teacher in the subject of Science and Mathematics. As many as 4940 posts of different subjects were notified vide Advertisement dated (26 of 50) [SAW-572/2018] 06.07.2016 whereas 927 posts out of them were notified for the subject of Mathematics and Science. In that matter, the batch of petitions consisted of four categories. One category of candidates was those who possessed English as a subject at B.Ed. level and also had English as one of the language papers in REET, 2015. They opposed consideration of those candidates for appointment as teachers in the subject of English, who did not possess the subject of English either at the level of B.Ed. examination or those who had not studied English as subject in both papers, i.e., Language-1 and Language-2 in REET. In second category was of those candidates who neither possessed teaching subject of English in B.Ed. nor in Graduation level, yet opted English as a language in REET Examination. There was yet another batch of candidates, who did not possess English as a subject in B.Ed. but had studied English as a subject in Graduation level and also opted for English in REET Examination. Fourth category was of those candidates, who had English as teaching subject in B.Ed. and also in Graduation but did not opt for English in REET Examination, 2015. The learned Single Judge of this Court vide judgment dated 02.11.2016 held that one, who has to become a teacher of English language, must undertake part of the examination qua English language and since the petitioners therein did not opt to study subject of English language, they cannot be recruited as Teachers of English language. With regard to other batch of writ petitions, learned Single Judge vide another judgment dated 07.11.2016 held that language teacher must pass REET Examination of the subject which he/she opts to teach and (27 of 50) [SAW-572/2018] must also have passed that subject in Graduation and taken that as a teaching subject in B.Ed.
Against the backdrop of these facts, the Division Bench of this Court in Sher Singh, supra, held that "For a teacher to be appointed in a particular subject, he is expected to have knowledge of that subject and must have studied it extensively so that he may be able to give back to the student what he has learnt." It was further held that according to the system adopted by the respondent-State merit was being prepared solely on the basis of the marks obtained in the REET. The criterion in the advertisement does not achieve the purpose sought for and preparation of merit on the basis of REET Examination alone would have no nexus to achieve the purpose of the selection, i.e., the best qualified candidate. Preparation of merit only on the basis of marks obtained in REET has resulted in causing ambiguity, confusion and administrative chaotic situation where a candidate may be able to secure appointment as a teacher in a particular subject, even though he may not have studied that subject at all. It was further noted that a subject Teacher of Level-II is also entitled to further promotion under the relevant educational service rules in that subject to the level of Teacher Grade-I in order to teach higher classes. If a candidate enters on the lower post, even without having the minimum qualifications in that subject, that would result in a chaotic situation. The aforesaid condition of preparing merit list solely on the basis of REET Examination was thus set aside. The State Government with due deference to the observations made in Sher Singh, supra, changed the criteria of preparing merit list and has now provided (28 of 50) [SAW-572/2018] 30% weightage to the marks of Graduation and 70% weightage to the marks of REET Examination.
The necessity for a candidate, desireous of seeking appointment as a Teacher Grade III (Level I & II), to qualify the TET, which in Rajasthan is known as REET, has arisen on account of the mandate of the RTE Act, which, following insertion of Article 21A in the Constitution of India, has provided for free and compulsory education to all children in the age group of 6 to 14 years. Section 3(1) of the RTE Act provides that every child in that age group shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education. Section 8 of the RTE Act provides for the duties of the appropriate government, which amongst others, includes in Clause (d), the duty to provide infrastructure including school building, teaching staff and learning equipments. Clause (g) thereof provides to ensure good quality elementary education conforming to the standards and norms specified in the Schedule. Similar provisions have been made in Section 9 with regard to schools functioning under the control of the local authorities. Section 18(1) of the RTE Act provides that no school, other than a school established, owned or controlled by the appropriate government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed. Proviso to sub-section (2) of Section 18 stipulates that no such recognition shall be granted to a school unless it fulfills norms and standards specified under Section 19. Sub-section (1) of Section 19 also, inter alia, (29 of 50) [SAW-572/2018] provides that no school shall be established, or recognised, under Section 18, unless it fulfills the norms and standards specified in the Schedule. Sub-section (2) of Section 19 provides that where a school established before the commencement of this Act does not fulfill the norms and standards specified in the Schedule, it shall take steps to fulfill such norms and standards, at its own expenses, within a period of three years from the date of such commencement. Sub-section (3) of Section 19 provides that where a school fails to fulfill the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of Section 18 shall withdraw its recognition in the manner specified under sub-section (3) thereof. Section 20 gives power to the Central Government to amend by notification the Schedule by adding to, or omitting therefrom, any norms and standards. Section 23(1) provides that any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. The NCTE has been notified by the Central Government as the academic authority for that purpose. Section 25 provides for Pupil-Teacher ratio and in its sub-section (1) mandates that within six months from the date of commencement of this Act, the appropriate government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school. Section 26 mandates that the appointing authority shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent of the total sanctioned strength. Section 29(1) provides that the curriculum and the evaluation procedure for elementary (30 of 50) [SAW-572/2018] education shall be laid down by an academic authority to be specified by the appropriate government, by notification.
The dispute in the present case is about teacher for the subject of "science and mathematics". The stand of the NCTE before this court, as noticed above, is clear that the notifications/guidelines issued by them do not specifically state the qualification for a subject teacher, such as; language teacher, social science teacher, science-mathematics teachers. They simply describe the educational academic qualifications and teaching qualifications with TET. It is primarily for the State Government/Employing Authority to decide whether one teacher should be appointed for science and mathematics subjects or there should be separate teacher for the subjects of science and mathematics for class sixth to eighth.
The Central Government, by virtue of its power under Section 23(1) of the RTE Act, has authorized the NCTE as the academic authority, empowering it to lay down such minimum eligibility qualification, as may be necessary, for appointment as a teacher. In other words, only such candidates, who possesses the eligibility qualification, as may be laid down by the NCTE, are entitled to claim appointment in the elementary school. The NCTE, vide gazette notification dated 23.08.2010, laid down the minimum qualification for a person to be eligible for appointment as a teacher in the upper primary school for Classes VI-VIII, which reads as under:-
"(ii) Classes VI-VIII
(a) B.A./B.Sc and 2-year Diploma in Elementary Education (by whatever name known) OR (31 of 50) [SAW-572/2018] B.A./B.Sc. With at least 50% marks and 1-year Bachelor in Education (B.Ed.) OR B.A./B.Sc. With at least 45% marks and 1-year Bachelor in Education B.Ed.), in accordance with the NCTE) Recognition Norms and Procedure) Regulations issued from time to time in this regard.
OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at lest 50% marks and 4-year BA/B.Sc. Ed. Or B.A. Ed./B.Sc. Ed.
OR B.A./B.Sc. With at least 50% marks and 1-year B.Ed. (Special Education) AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose."
The aforesaid notification originally provided only B.A./B.Sc. as basic qualification, however, by amendment, B.Com. was also added thereto. All three of them are taken as the minimum educational qualification along-with either 2-year Diploma in Elementary Education or B.Ed. in the case of those having the Degree of Graduation, by whatever name called, viz., B.A., B.Sc. or B.Com. However, the candidates with the Senior Secondary are required to have 4-year Bachelor in Elementary Education (B.El.Ed.) or 4-year B.A./B.Sc. Ed. Or B.A. Ed./B.Sc.Ed. But candidates with B.A./B.Sc./B.Com. in the case of Special Education would need only one year B.Ed. Course. All such candidates with these minimum qualifications will have to necessarily pass the TET to be conducted by the appropriate government in accordance with the guidelines framed by the NCTE for the purpose.
(32 of 50) [SAW-572/2018] The Full Bench of the Allahabad High Court in Shiv Kumar Sharma and Others Vs. State of U.P. & Others - 2013 (6) ADJ 10 (FB) referred to Section 12-A of the NCTE Act, introduced by way of amendment in the NCTE Act, which provides that for the purpose of maintaining standards of education in schools, "the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority". It was observed that the object of the TET is to ensure that a teacher is qualified in the field which he is about to enter. Affirming the view taken in an earlier judgment of a Division Bench of Allahabad High Court in Prabhakar Singh and others Vs. State of U.P. and others - 2013 (1) ADJ 651, the Full Bench in Shiv Kumar Sharma, supra, acknowledged the power of NCTE to prescribe qualifications, and held that after coming into force of the RTE Act of 2009 and the prescription of qualifications by NCTE, the State is not a free to do what it likes. The failure of the State Government to timely implement the qualifications, which were laid down by the NCTE, would not dilute or take away the impact of the notification which is mandatory. Therein it was held as under:-
"...In our opinion, however, merely because the State incorporated these provisions in its rules later on would not take away the impact of the norms prescribed by the National Council for Teacher Education that stood enforced w.e.f. 23.8.2010. The delegated legislation of the State Government was subject to the primary legislation of the Central Government. The framing of (33 of 50) [SAW-572/2018] rules as a subordinate legislation is subservient to the provisions framed by the Central Government. The notification dated 23.8.2010 therefore has an overriding effect and it could not have been ignored. If the State Government has proceeded to make appointments after 23.8.2010 without complying with the provisions of teacher eligibility test then such appointments would be deficient in such qualification."
The aforesaid judgment was followed and reiterated by another Full Bench of the Allahabad High Court in Shivam Rajan and Others Vs. State of U.P. and Others - (2015) 3 UPLBEC 2297, which, while highlighting the importance of the TET, its mandatory nature and character, in para 100 of the report observed as follows:-
"100. The object and purpose of introducing the TET is to ensure that a teacher who embarks upon instructing students of primary and upper primary classes is duly equipped to fulfil the needs of the students, understands the relevance of education for a child at that stage and can contribute to the well rounded development of the child. Teaching a child is not merely a matter of providing information. Deeply embedded in the process of imparting education is sensitivity towards the psyche of the child, the ability to understand the concerns of a young student of that age, the motivations which encourage learning and the pitfalls which have to be avoided. The emphasis on clearing the TET is to ensure the maintenance of quality in imparting primary education. These requirements which have been laid down by NCTE fulfil an important public purpose by ensuring a complement of trained teachers who contribute to the learning process of children and enhance their growth and development. These requirements should not be viewed merely as norms governing the relationship of a teacher with the contract of employment. These norms are intended to fulfil and protect the needs of those who are taught, namely, young children. India can ignore the concerns of its children only at the cost of a grave peril to the future of our society. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx"
(34 of 50) [SAW-572/2018] The norms and standards for schools with reference to Sections 19 and 25 of the RTE Act have been laid down in the Schedule attached to the RTE Act, which reads as under:-
THE SCHEDULE (See Sections 19 and 25) NORMS AND STANDARDS FOR A SCHOOL S.No. Item Norms and Standards
1. Number of teachers
(a) For first class to Admitted children Number of teachers fifth class Up to Sixty Two Between Sixty-one to Three Ninety Between Ninety one to Four one hundred and twenty Between One hundred and Five twenty one to two hundred Above One hundred and Five plus one fifty children Head-teacher Above Two hundred Pupil-Teacher Ratio children (excluding Head teacher) shall not exceed forty
(b) For sixth class to (1) At least one teacher per class so that there eighth class shall be at least one class teacher each for-
(i) Science and Mathematics;
(ii) Social Studies;
(iii) Languages (2) At lest one teacher for every thirty-five children.
(3) Where admission of children is above one hundred-
(i) a full time head-teacher
(ii) part time instructors for-
(A) Art Education.
(B) Health and Physical Education A glance at the Schedule appended to the RTE Act would indicate that for Class VI to VIII, it has been insisted that every school must necessarily appoint one teacher each for - (i) Science and Mathematics, (ii) Social Studies, and (iii) languages, with further condition that there would be at least one teacher for every batch of thirty-five children. The Rajasthan Panchayati Raj (35 of 50) [SAW-572/2018] Rules, 1996, have been amended to substitute Clause (3) in its Rule 266 to provide that there shall be hundred per cent direct recruitment to the post of Primary and Upper Primary School Tecahers and for general education level I Class I to V the qualification as laid down by the NCTE as per Section 23(1) from time to time and the passing of the REET/TET would be the condition for appointment. In so far as the teacher in the subject of Science and Mathematics is concerned, apart from qualification of B.Ed. and passing of REET, the qualification laid down by the academic authority is graduation or equivalent examination with at least one subject as optional subject from amongst Chemistry, Physics, Botany, Geology, Micro-Biology, Bio-technology, Bio- chemistry and Mathematics. This, however, is not true for the language teachers. What is provided under the aforesaid amended rule for appointment of language teacher is that he must possess qualification as laid down by the NCTE under Section 23(1) of the RTE Act and must have passed graduation or equivalent examination with the corresponding language as an optional subject. It was this issue which has been decided by this court in Sher Singh, supra, which did not at all deal with the issue with which we are presently concerned in the instant matter. Ratio of Sher Singh, supra, in our view, for all the afore discussed reasons, does not apply to the facts of the present case.
We are at this stage tempted to quote from the celebrated decision of the House of Lords in Quinn v. Leathem reported in [1901] A.C. 495, wherein it was aptly observed as under:
"every judgment must be read as applicable to the particular facts proved, or assument to be proved, since generality of the expressions which may be found there (36 of 50) [SAW-572/2018] are not intended to be expositions of the whole law, but governed and qualified by the particulars facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that any seem to follow logically from it..."
The observations made by Division Bench of this Court in Sher Singh, supra, with regard to confusion and chaotic situation that could arise at the time of promotion appears to have been made without looking at the position of the rules. In entry 8(a) under the heading "Section F-General Teacher" of Schedule-I appended to the Rajasthan Education Subordinate Service Rules, 1971, source of the recruitment for appointment on the post of Senior Teacher has been prescribed as 50% by direct recruitment and 50% by promotion. As it is, for promotion on the post of Senior Teachers, there are subject wise posts of Senior Teachers, such as, Hindi, English, Maths, Science, Third Language and Social Language. Eligibility for such promotion is graduate or equivalent. Therefore, so far as promotion in language subjects is concerned, there is neither any confusion nor any chaos because once a Teacher Grade III Level II is promoted to the post of Senior Teacher, as per the scheme of Rules of 1971, such promotions shall be on the post of a particular subject.
The decision in Sher Singh, supra, has followed the earlier judgment of the Division Bench of Jharkhand High Court in Binod Vikash Manch & anr. Vs. State of Jharkhand & ors, decided on 06th November, 2003, which too held that only a teacher who has the requisite qualification in terms of the Rules and who has studied the English language up to the qualification level, should be appointed as a teacher in English. The Jharkhand High Court in (37 of 50) [SAW-572/2018] cited judgment of Ragini Sinha Vs. The State of Jharkhan - 2917 (3) JLJR 68, also dealt with the question of appointment of Teachers in Language subject. The Court held that the requirement of subject-specific educational qualification for appointment as a teacher in Upper Primary School has a close nexus with the requirement of in-depth knowledge of the "subject" which a teacher is required to teach at the Upper Primary level. Whether a candidate with Modern Indian Language or any other Language as a compulsory subject, is capable of imparting education as a Language teacher or not, is not required to be examined in the present proceedings. The simple rational behind insistence on a qualification of Graduation with the Language, as compulsory, optional or subsidiary subject, in Graduation for appointment of Language teachers, is based on the reasoning that such teacher should be able to impart education of that language to the students. But this is not true for appointment of a Mathematics/Science teacher.
In Hari Sharma and Others Vs. State of Jharkhand and Others - 2017 (3) J.L.J.R. 751, the Jharkhand High Court, in para 11 of the report, observed as under:-
"Predecessor to 2015 Jharkhand Appointment Rules was notified vide Notification dated 05.11.2004. Rule 4(1)(iii) of 2004 Rules provided minimum educational qualification for Trained Graduate Teacher as a second class Graduation degree in Arts, Science or Commerce with 50% marks in "the subject". 2004 Rules 15 were amended vide Notification dated 14.06.2008, whereunder requirement of 50% marks in "the subject" was reduced to 45%. Advertisement No.12 of 2008 was issued for appointment of Graduate Trained Teachers with the aforesaid qualifications. Number of vacancies disclosed in Advertisement No.12 of 2008 was subject-wise viz. History-248, Civics-36, Science Mathematics-259 and Biology-234. Qualified teachers pursuant to the aforesaid advertisement were (38 of 50) [SAW-572/2018] appointed in different subjects including, History and Civics. Another advertisement bearing no.93 of 2011 was issued for appointment of Graduate Trained Teachers. In this advertisement also separate vacancies for each subject were notified and appointment of teachers for History and Civics/Political Science was made separately."
Afore-extracted para of the judgment in Hari Sharma, supra, clearly shows that 259 posts of Teacher of Science- Mathematics subject were advertised taking them as combined posts. Similarly, Para 10 of the judgment in Ragini Sinha, supra, cited before us, indicates that the advertisement dated 10.06.2015 issued in that case by the State of Jharkhand also provided for recruitment of common Teachers in Science- Mathematics, apart from Teachers in the subjects of Social Science and the Languages. Thus the Language subjects cannot be put at par with the subjects of Mathematics and Science, which have been bracketed together, not only in the Schedule to the RTE Act but also in the Rules of 1996. A candidate having passed out the Graduation or equivalent examination with one of the aforesaid eight subjects, as optional subject, in combination with any other two subjects, with degree or diploma in education, only upon passing of TET would acquire eligibility for appointment as Teacher for Science and Mathematics. This shows that his knowledge would then be further tested by subjecting him to the REET examination as per the Notification of the NCTE dated 23.08.2010 read with subsequent Notification dated 29.07.2011. His knowledge is tested as per the guidelines for conducting TET in the Circular of the NCTE dated 11.02.2011. Clause 5 of the original Notification dated 23.08.2010, as amended by subsequent (39 of 50) [SAW-572/2018] Notification dated 29.07.2011 by inserting sub-clause (b) thereto under the caption 'minimum qualification norms', provided that the said Notification shall apply to the Teachers of the Languages, Social Studies, Mathematics, Science, etc. Indicating Mathematics and Science, separately by punctuation mark 'coma' (','), but this does not in any manner dilute the prescription made in the Schedule appended to the RTE Act, where States have been allowed to have "at least one Teacher" of Science and Mathematics.
Apart from the issue that arises for determination by this court in the present case is whether a candidate, despite possessing a Degree of Graduation or equivalent examination with at least one subject, out of eight subjects referred to above, as an optional subject, can be denied appointment on the post of Teacher in Science and Mathematics, another related question, which arises for consideration, is whether the State should not have the freedom to have a common Teacher for both the subjects of Science and Mathematics despite the prescription to this effect made in Schedule to the RTE Act and also the amendment to that effect, in conformity therewith, inserted in Rule 266 of the Rajasthan Panchayati Raj Rules, 1996.
The NCTE by notification dated 12.11.2014, has formulated 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. Clause 4 of Regulations of 2014 has provided that qualifications for recruitment of teachers (40 of 50) [SAW-572/2018] in any recognized school in the aforementioned category shall be as given in the First and Second Schedule annexed to these Regulations. The First Schedule deals with the minimum academic and professional qualifications. In regard to the primary and upper primary level (for Classes I to VIII), the minimum qualification as laid down by the NCTE vide Notification dated 23.08.2010, as amended from time to time, in exercise of powers of the NCTE under Section 23 of the RTE Act, have been required. According to the guidelines dated 11.02.2011 issued by the NCTE for conducting TET, there will be two papers of the TET. Paper I will be for a person who intends to be a teacher for classes I to V. Paper II will be for a person who intends to be a teacher for classes VI to VIII. Paper II shall carry 150 marks and the duration of which will be one-and-a-half-hour. The structure and contents of such examination are also indicated therein, according to which for Paper II (for Classes VI to VIII) there would be 150 multiple choice questions each carrying one mark, and that would be divided into four parts; the first part, i.e., Child Development & Pedagogy (compulsory) shall carry 30 marks, the second part, i.e., Language I (compulsory) shall carry 30 marks, and the third part, i.e., Language II (compulsory) shall carry 30 marks. The fourth part is also divided into three parts, i.e., (a) mathematics and science subject for mathematics and science teacher, which shall carry 60 marks (b) social studies subject for social studies teacher, which shall carry 60 marks and (c) either 4(a) or 4(b) for any other teacher, which shall also carry 60 marks. It has been provided that the examining body shall, while designing and preparing the Question Paper-II, taking into consideration the test (41 of 50) [SAW-572/2018] items in Mathematics and Science and Social Studies, will focus on the concepts, problem solving abilities and pedagogical understanding under these subjects. The test items of Mathematics and Science will be of 30 marks each. The test items shall be evenly distributed over different divisions of the syllabus of that subject as prescribed for classes VI-VIII by the appropriate government. The questions in the tests for Paper II will be based on the topics of the prescribed syllabus of the State for classes VI- VIII but their difficulty standard as well as linkages could be upto the senior secondary stage (emphasis ours). It would thus be evident that even the NCTE for the purpose of REET examination, has combined the subjects of Science and Mathematics together as it has treated the students of Upper Primary level (Classes VI to VIII) as common structured base.
Geographically, Rajasthan is the largest State of the country. The Government under the RTE Act owes the obligation to establish schools in every nook and corner of the State. It has to establish thousands of upper-primary schools, mostly in rural areas, where there is scarcity of private schools for the obvious reasons of commercial viability. Requiring the State to provide separate teachers for the subjects of Science and Mathematics in all those schools would bring an enormous burden on the resources of the State. This explains why the Legislature in Schedule appended to RTE Act has provided that there shall be at least one teacher in the subject of Science-Maths as it was cognizant of the fact that one teacher would suffice in at least such schools where number of students is quite minimal. As regards pedagogy, curriculum of the REET examination itself takes (42 of 50) [SAW-572/2018] care of that necessity as would be evident from the guidelines of the NCTE dated 11.02.2011, which provides that while designing and preparing the Question Paper-II, the examining body shall take into consideration the factor that "the test items in Mathematics and Science, and Social Studies will focus on the concepts, problem solving abilities and pedagogical understanding of these subjects". Moreover, as rightly argued by the learned counsel appearing for the NCTE, not much can be made of what was pleaded in para 16 of their reply to the writ petition of Ajay Singh, supra, wherein it was stated that "pedagogy in a teacher education programme is an integral and essential component of the D.El.Ed. & B.Ed. Syllabus". Moreover, admissions to D.El.Ed. or B.Ed. courses are based on the subjects studied by the candidates in their graduation course. Pedagogy of the subject concerned is thus implicit in the teacher education programme.
The most important neutralizing factor is that appointments are not made only on the basis of the marks of the subjects which a candidate has studied in Graduation or equivalent examination but the marks secured by him in REET examination also play a pivotal role in preparation of merit. While weightage of only 30% has been given to the marks secured in the Graduation, 70% weightage has been given to the marks of the REET examination. It is, therefore, the REET examination which will have dominant role in the ultimate preparation of the merit. In the opinion of this court, when the Parliament in the Schedule appended to the RTE Act has given a freedom to the States to employ a common teacher for the subject of 'Science-Mathematics' by combining them together and providing that there shall be at least one (43 of 50) [SAW-572/2018] teacher in every school for these subjects, the Government must be given freedom to do so and the Rules framed by the Government to the effect cannot in any manner be held to be ultra vires the RTE Act or for that matter, ultra vires the Constitution of India.
Under challenge before the Gujarat High Court in Prajapati Paresh Govindbhai, supra, was the decision of the State Government to exclude and not to permit the students, who have graduated with Sociology as principal subject, from appearing in Teachers' Eligibility Test for higher primary education. In that context, the Gujarat High Court taking note of the provisions of the RTE Act, 2009 and various guidelines/regulations issued by the NCTE, in para 11 to 16 of the judgment, observed as under:-
"11. From the aforesaid provisions of the Act and the guidelines framed by NCTE, it appears that the minimum educational qualification for appearing at the TET cannot be altered by the State Government by adding to or deleting from the ones prescribed by NCTE as provided in the Act and there is no dispute that graduation in any of the three streams - Science, Arts or Commerce, is the minimum educational qualification for becoming a teacher in any of the subjects in Upper Primary section without any restriction on the subjects. By the decision impugned in these writ-applications, the State Government has disqualified a section of the applicants who are graduate and otherwise eligible for appearing at the TET in accordance with the norms fixed by the NCTE although the State has no right to disqualify an otherwise qualified candidate eligible to appear under the Act for the purpose of appearing at the TET.
12. It appears that for the schools in the State of Gujarat, the State Government is entitled to hold examination of TET and prepare question papers based on the guidelines given by the NCTE. We have already pointed out that Paper-II of the examination is meant for the persons who intend to be teachers for classes 6 to 8. The total number of marks for such examination is fixed by the guidelines. The said Paper-II consists of three compulsory subjects for all the applicants, viz:
Child Development and pedagogy, language-I and (44 of 50) [SAW-572/2018] language-II, each consisting of 30 marks. For those candidates who want to become teachers for Science or Mathematics, additional 60 marks are allotted for the subjects of Mathematics and Science whereas for a person intending to be a teacher of Social Studies, additional 60 marks are fixed for Social Studies. A candidate, who wants to be a Teacher for any other branch than Science or Mathematics or Social studies, is obliged to appear and opt for either Mathematics and Science or Social Studies for additional 60 marks as indicated above according to his/her wishes.
13. Therefore, even a graduate in Science with mathematics may opt for becoming a teacher of Social Studies or any other subjects whereas a graduate in Arts or Commerce subjects may also choose the subject of Mathematics and Science provided however that those candidates, in addition to the compulsory subjects, must be prepared to sit in the examination for the relevant optional subjects containing 60 marks and they are required to compete in such examination with the candidates who are graduate in the relevant subjects.
14. We do not find any substance in the contention of the learned counsel for the State that a person who has become a graduate by taking Sociology as the principal subject cannot be fit for the TET. Even if a person having graduation in Arts stream without Science and Mathematics as principal subjects undertakes the optional subjects of Mathematics and Science and becomes successful in the examination of paper-II, he can be selected in preference to other candidates having obtained lesser marks in the total subjects notwithstanding the fact that those persons were graduated in science. The pattern of choice of optional subject disclosed in the guidelines of NCET does not stand in the way of a candidate in choosing any other subject than the one with which he undertook the graduation course.
15. We, therefore, find that the State Government is entitled to set appropriate questions in paper-II by following the guidelines issued by the NCTE but has no right to disqualify an otherwise duly qualified candidate having the required qualification fixed by NCTE from appearing in the said examination. In other words, TET is the forum, where any candidate having the required minimum qualification fixed by NCTE, can justify his ability to appear in any subject he likes by competing with others. If an Arts graduate without Mathematics and science in his graduation level takes the risk of competing with the science graduates by taking the option of 60 marks in science and Mathematics subjects out of total 150 and becomes successful, the State (45 of 50) [SAW-572/2018] Government cannot refuse his appointment on the ground that the science graduates having obtained lesser marks would be more effective. Similarly, a science graduate can opt for social studies by proving his excellence in TET on basis of his knowledge of social studies acquired at the Higher Secondary Level.
16. By imposing restriction in the matter of qualification for sitting in the TET, the State Government has acted in violation of the Act as well as the guidelines framed by NCTE and thus, the aforesaid decision, which is the subject-matter of these writ- applications, is liable to quashed being violative of the provisions of the Act itself which does not authorize the State Government to deviate from the qualification fixed by the NCTE for becoming a teacher in upper primary section."
Although there may be some doubt with regard to proposition of law that even if a person having graduation in Arts, stream without Science and Mathematics, as principal subjects, undertakes the optional subjects of Mathematics and Science and becomes successful in the examination of paper-II of the REET, can be selected in preference to other candidates having obtained lesser marks in the total subjects notwithstanding the fact that those persons were graduated in science and mathematics. Percentage of the candidates falling in this category would constitute a minuscule of the over all lot of the unemployed youth. Even then, we are also inclined to hold that if the NCTE, which is manned by experts in the field of education, has allowed candidates having any one of the aforeviewed eight subjects with combination of other two subjects, out of them or otherwise, in their graduation study course, to be appointed as teacher, subject to their possessing degree or diploma in teaching and clearing paper II of REET (TET) with Science and Mathematics subjects containing 60 marks, bifurcated into two parts of 30 marks each, on the standards of Senior Secondary level, there is no reason (46 of 50) [SAW-572/2018] why they would not be capable of imparting education to students of class VI to class VIII in the subject of Science-Mathematics.
The Supreme Court in University Grants Commission & Another Vs. Neha Anil Bobde (Gadekar), supra, held that in academic matters, unless there is a clear violation of statutory provisions, the Regulations or the Notification issued, the Courts shall keep their hands off since those issues fall within the domain of the experts. The Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision of academic experts who are more familiar with the problem they face, than the Courts generally are. It was held that the UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any "qualifying criteria", which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Section 12 of the University Grants Commission Act, 1956 invested the UGC with the powers specified in the various clauses thereof. The same analogy can be applied to the NCTE, which has been notified by the Central Government to be the authorized academic body under Section 23(1) of the RTE Act.
Adverting now to the question of per incurium, the learned Single Judge, in our considered opinion, was not justified in declaring the judgment of another Single Bench in Rahul Kumar Jain, supra, per incuriam, on the premise that it was contrary to (47 of 50) [SAW-572/2018] the binding judgment of the Division Bench in Sher Singh, supra, and also contrary to the prescription of the qualification made in the notification of NCTE dated 29.07.2011, whereas the fact is that the learned Single Judge in Rahul Kumar Jain, supra, also considered the same judgment in Sher Singh, supra. If the learned Single Judge in the present matter was of the view that the aforesaid DB judgment in Sher Singh, supra, was not correctly followed and wanted to take a different opinion in the matter, the appropriate course for him was to have referred the matter to a Larger Bench rather than declaring the aforesaid judgment per incuriam. We may, in this connection, refer to the judgment of the Supreme Court in State of Orissa & Another Vs. Mamata Mohanty, supra, wherein it was held that "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The Courts have developed this principle in relaxation of the rule of stare decisis. Thus the "quotable in law", is avoided and ignored if it is rendered, in ignoratium of a Statute or other binding authority. In regard to the term 'per incuriam', the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra - (2005) 2 SCC 673, has observed as under:-
"Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a Court of co-ordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam. It is true that Raghubir Singh's case was not referred to in any case other than Chandra Prakash & Ors.' case but in Chandra Prakash & Ors. case Raghubir Singh's case and Parija's case both have been referred to and considered and then Parija's case followed. So the view (48 of 50) [SAW-572/2018] of the law taken in series of cases to which Parija's case belongs cannot be said to be per incuriam."
On facts, it can not be said that the learned Single Judge in Rahul Kumar Jain, supra, has rendered the judgment under ignorance of the DB judgment in Sher Singh, supra. There was no justification for the learned Single Judge to have declared that judgment as per incuriam.
This now brings us to the question of challenge to the validity of the Rules of 2018 notified by notification dated 21.02.2018; whether the Rules in question could have been set aside by the learned Single Judge and whether challenge to the validity thereof has been adequately substantiated by the petitioner in Writ Petition No.19935/2018 of Anil Chulte and Others. We may in this connection only refer to the judgment of the Supreme Court in State of Tamil Nadu and Another Vs. P. Krishnamurthy & Ors. (2006) SCC 517 wherein the Supreme Court succinctly enunciated the law on which subordinate legislation can be challenged and elucidated the grounds thereof in the following terms:-
"(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules)."
(49 of 50) [SAW-572/2018] It is pertinent to mention here that neither in the writ petition filed by Satish Kumar nor in the subsequently filed writ petitions before the Division Bench by Anil Chulate and others, has proper foundation been laid or pleadings made to justify challenge to the Rules of 2018 on any of the aforenoted parameters. It is nowhere stated that the rule making authority lacks legislative competence or that the Rule violates any fundamental right or any provision of the Constitution of India or they do not in any manner conform to the statute, i.e., RTE Act or exceeds the limits of authority conferred by the enabling Act or are repugnant to the laws of the land or suffer from manifest arbitrariness/ unreasonableness. The Rules of 2018 having been enacted by the competent authority, the employer has to be conceded the necessary freedom to do so. By mere reason of the fact that it had earlier framed the Rules of 2017 segregating the subjects of Science and Mathematics for the purpose of appointment, the State cannot be held to have been estopped from further amending the rules, for it is trite that there can be no estoppel against the statute. In fact, the rule making authority has physically brought the prescription made by the NCTE in their Regulations of 2014 in the shape of sub-rule (3) of Rule 266 of the Rules of 2018. In any case, according to the rules and practice prevalent in this court, a writ petition challenging the vires of a subordinate legislation, was required to be laid before the Division Bench. Although the Rules were directly not under challenge, the learned Single Judge, in our view, was wholly unjustified in setting aside the notification promulgating the said Rules.
(50 of 50) [SAW-572/2018] In view of the above discussion on the law and the facts, we are persuaded to allow the appeals and set aside the impugned judgment dated 04.04.2018. The appeals are accordingly allowed and the impugned judgment dated 04.04.2018 is set aside.
Consequently, the writ petitions filed before the Single Judge and also the Division Bench are dismissed.
Office to place a copy of this judgment in each connected file.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
//Jaiman//
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