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It is further urged that all the candidates possessing qualification of BEd were allowed to appear in the TET for Teacher at Level-I and II. The test was held pursuant to advertisement in the month of March, 2011 followed by declaration of result on 28.8.2011. Once a candidate holding qualification of BEd was allowed to appear in the TET, that too, for the post of Teacher at level-I then should not be rendered ineligible only for the reason that selection to the post could not be held on or prior to 1.1.2012. If the respondents had no intention to hold selection on or prior to 1.1.2012 then appearance of the petitioners in TET remains nothing but an empty formality for the post of Teacher at Level-I. The TET was held for making them eligible for the post of Teacher Level-I thus to make it logical, the respondents should have alternatively taken guidelines/ directions from the NCTE/ Government of India for relaxing cut off date of 1.1.2012 or for advancing it so that one time relaxation is given to BEd degree holders for their appearance on the post of Teacher at Level-I in the State of Rajasthan. The respondents' failed to act as per section 35 of the Act of 2009 and Rule 18 of the Rules of 2010. This is more so when petitioners are ready to undergo training of six months after their appointment as is given in the Notification dated 23.8.2010.

Coming to other argument as regard to TET, it is submitted that upto 1.1.2012 candidates like petitioners were eligible for appointment at level-I thus they could not have been debarred from TET. All candidates holding qualification of B.Ed were accordingly allowed to appear in TET but, merely for that reason they cannot be treated eligible for recruitment contrary to the Notification dated 23.8.2010 issued by the NCTE and as per amended rules of 1996.

It is lastly contended that reference of some action by the State of UP for relaxation has been given by learned counsel for petitioners while making oral arguments, however, it is not coming out from pleadings and no document has been placed on record for the aforesaid purpose. The State Government is having authority under Schedule VII of the Constitution to regulate and legislate the subject. The State of Rajasthan under its legislative competence, amended Rajasthan Panchayati Raj Rules to provide minimum qualification for Teacher level-I and II. It is as prescribed by the NCTE. The petitioners are not in possession of requisite qualification which is provided in para (1) of the Notification for the post of Teacher Level-I thus action of the respondents cannot be said to be illegal. A reference of the judgment of the Hon'ble Apex Court in the case of Kailash Chandra Harijan versus State of Rajathan & ors, reported RLR 2006 (1) 665 has been given to show that as per judgment therein and also of the Hon'ble Apex Court in the case of Yogesh Kumar versus State of NCT, Delhi, reported in (2003) 3 SCC 548, BSTC is taken as basic qualification at the elementary level i.e. for classes I to V. In the light of arguments advanced, the writ petitions deserve to be dismissed and interim orders passed by this court deserve to be vacated.

This court can very well struck down legal provisions if found to be unconstitutional but if the Act and Rules are not challenged, it cannot pass directions contrary to the statutory provisions. The validity of Rajasthan Panchayati Raj Rules as amended is not under challenge and otherwise validity of rule can be examined by the Division Bench only.

An argument has also been raised that petitioners were allowed to appear in the TET for Teacher Level-I. The result of which was declared on 28.8.2011. Petitioners have qualified TET for becoming eligible for appointment to the post of Teacher level-I. According to the petitioners, once they were allowed to appear in the TET for Level-I, cannot be treated ineligible for selection. The argument aforesaid seems to be attractive but cannot be accepted. The crucial date of 1.1.2012 came in there for eligibility and validity thereof is not under challenge. In the aforesaid circumstances, even if there is hardship to the petitioners yet directions to treat them to be eligible would then be in violation of Rajasthan Panchayati Raj Rules as amended and quoted above.

The last issue is regarding delay in holding selection by the State Government. It is submitted that the Act of 2009 came in effect on 26.8.2009 followed by a Notification by NCTE to provide minimum qualification on 23.8.2010 but further Notification was issued on 29.7.2011 thus should have conducted selections immediately thereafter. I find that result of TET was declared on 28.8.2011 thus first available occasion to hold selection came thereafter only as NCTE issued one Notification on 29.7.2011 and the Rajasthan Panchayati Raj Rules, 1996 were amended on 11.5.2011 thus it is not a case of gross delay. The ideal situation would have been if selection could have been before 1.1.2012 as after the aforesaid date, candidates holding qualification of B.Ed. and qualified TET would not be eligible for appointment to the post of teacher level-I. The fact however remains that cut off date of 1.1.2012 has not been challenged, more so when as per amended Rules of 1996 under which selections are held provides so, in view of applicability of NCTE Notification. Thus date aforesaid is coming as per statutory rules and are not under challenge hence no directions can be issued against the legal provisions.