JUDGMENT 1. - All the above said connected matters have been filed by the petitioners who are holding a Bachelor's degree in Physical Education, commonly known as B.P.Ed. from Indira Gandhi University, Nagpur and other Universities which degrees even otherwise stand recognised by the respective authorities of the Rajasthan. 2. The posts of Physical Training Instructors Grade II (herein-after called as the PTIs) are to be filled up under the Rajasthan Educational Subordinate Service Rules, 1971 (here-in-after called as the Rules) and as per the schedule appended to the said rules 50% posts are to be filled up by direct recruitment and 50% by promotion. The case of the petitioners falls under the category of direct recruitment. The qualifications mentioned for direct recruitment in the schedule is graduate or equivalent examination with diploma in Physical Education (or Secondary with four years diploma in Physical Education). 3. In response to the various advertisements published in various papers and particularly to advertisement dated 9.8.1998 published on 24.8.1998 for filling up the posts of PTIs, the petitioners who are holding a graduate degree in Physical Education had applied for consideration. The examinations were held and even interview were also held. However, applications of all the petitioners are said to have been rejected on the ground that none of the petitioner holds a graduate degree. 4. It is the contention of the petitioners that the respondents have illegally misinterpreted the degree of the petitioners to be not equivalent to the graduation. It is the further contention of the counsel for the petitioners that if a candidate is in possession of a B.P.Ed. degree, which is a graduate degree, then the very qualifications mentioned i.e. 'the equivalent examination with diploma in Physical Education' cannot be made applicable to the cases of the petitioners who possess the degree in Physical Education which is much higher than the diploma. There may be cases where a simple graduate in subjects other than Physical Education are required to possess the diploma alongwith degree of graduation but in the case of graduates of Physical Education, which is a degree in itself, it cannot be said that they should also hold a diploma in Physical Education for the reason that they are already holding a much higher qualification than diploma. At the bar it was stated by the counsel for the parties that the period of duration for obtaining diploma is one year, but for obtaining a degree in B.P.Ed., the period of study is three years and as such the non-consideration of the applications of the petitioners or that to insist that the petitioners should also possess the diploma when they are already holding already holding a degree of graduation in Physical Education is a provision which requires to be set aside with the direction to the respondents to consider the cases of the petitioners on the basis that the petitioners do possess the degree in Physical Education and nothing more is required in this regard to for consideration. The petitioners also submit that even though in the qualifications, it has also been mentioned that the candidates with Secondary Examination with four years diploma in Physical Education can also be considered, but it is stated that nowhere in Rajasthan according to their knowledge, there is any institution, for conferring provision of four years diploma in Physical Education. This is not denied by the respondents. The petitioners want to submit that while laying down the qualifications in the rules, the authorities had not properly applied mind even to the feasibility of obtaining such qualifications. It shall be relevant to reproduce the rules as under: Sl.No. Name of the Post Sources of recruitment with percentage. Minimum qualification and experience for direct recruitment. Post or posts from which promotion is to be made. Qualification and experience required for promotion Committee for direct recruitment to the post not within the purview of RPSC and for promotion. Seniority Remarks 1 2 3 4 5 6 7 8 9 xxxxx (2) Physical Training Instructors Grade II. 50% by promotion & 50% by direct recruitment. Graduate or equivalent examination with diploma in physical Education or secondary with 4 years diploma in Physical Education. Physical Training Instructors Grade III. Graduate or equivalent examination recognised by Government of Rajasthan with certificate of Physical Education and 5 years experience on post mentioned in Column No. 5 OR Secondary with certificate in Physical Edu. and 10 yrs. experience on the post mentioned in Colum Nos. 5. 1.Dy. Director of Education of the range. 2. One D.E.O. to be nominated by the Director of Education (P and S).,3. One expert to be nominated by the Director. Range wise 5. and 10 yrs. experience on the post mentioned in Colum Nos. 5. 1.Dy. Director of Education of the range. 2. One D.E.O. to be nominated by the Director of Education (P and S).,3. One expert to be nominated by the Director. Range wise 5. Facts are being taken from S.B. Civil Writ Petition Nos. 5863/98, 6286/96 and 5334/98. It is stated that identical replies filed in these writ petitions be considered sufficient to determine question in the present cases. 6. The first question which arises for determination is whether the degree of B. P. Ed. is a degree of graduation or not ? 7. Some of the petitioners have attached the copy of the degree as Annexure-2 wherein it is mentioned that the petitioners had passed the final examination in the degree of Bachelor of Physical Education (B.P.Ed.) three years degree course either from Amravati or Nagpur University. Reliance is also placed in writ petition No. 5863/98 that a committee was constituted by the Directorate of School Education Rajasthan for taking a decision regarding appointment of the candidates holding B.P.E. and B.P.Ed. qualifications wherein it was opined by the Committee that such qualifications were equivalent to the degree. 8. The petitioners have also placed on record a prospectus of Bhupal Nobels'. College of Physical Education, Udaipur wherein the college is imparting physical education of three years degree course to the candidates who have passed 10+2 course. This college is affiliated to Mohan Lal Sukhadia University, Udaipur of Rajasthan. 9. The prospectus in regard to Master's degree in Physical Education as issued by the University of Rajasthan has also been produced. For Master's degree in Physical Education the eligibility conditions for admission is that a candidate after taking a Bachelor's degree of Physical Education of the University or of an Indian University recognised for the purpose by the Rajasthan University are eligible to be admitted to the previous examination for the degree of Master of Physical Education. The University of Rajasthan in the prospectus had itself admitted that for admission in Master's degree in Physical Education, a candidate who has obtained a Bachelors degree in Physical Education is entitled to be admitted. The relevant part is reproduced as under:- 'MASTER DEGREE IN PHYSICAL EDUCATION' (Under Self-financing Scheme) The duration of the course will be of two academic years. Eligibility for Admission: 1. The relevant part is reproduced as under:- 'MASTER DEGREE IN PHYSICAL EDUCATION' (Under Self-financing Scheme) The duration of the course will be of two academic years. Eligibility for Admission: 1. A candidate, who (a) after taking a Bachelors degree in Physical Education of the University or of an Indian University recognised for the purpose by the Rajasthan University, or (b) after obtaining a post-graduate Diploma in Physical Education of at least one year duration awarded by the Indian University or Board appointed by the Education Department of State or (c) after obtaining Indian or Foreign qualifications recognised as equivalent to those mentioned in (a) or (b) above by the Rajasthan University shalt be admitted to the Previous Examination for the degree of Master of Physical Education.' 10. Similar is the position in the prospectus issued by the University of Rajasthan for the year 1995-96. Reliance is also placed on a circular letter dated 16.3.1998 No. F.15(4) Education-6/98 to the fact that a clarification had been given by the State of Rajasthan that for the direct recruitment on the post of Physical Instructor Gr.II, candidates possessing graduation or equivalent qualification with a degree of Physical Education, B.P.Ed. will also be eligible for selection like graduates or equivalent and diploma in physical education as recommended by the Committee. 11. After passing 10+2 examination a student may be admitted for a degree course in Arts of three years duration, in Science for three years duration and similarly in Physical Education for three years duration. All the three courses when completed confer a degree of graduation upon the candidate. The post-graduation is also permitted in Physical Education if a candidate has completed the graduation in degree course in Physical Education in the similar manner as post-graduation admissions are allowed in Science or Arts subjects. For all purposes, the degree obtained in B.P.Ed. is a graduate degree. May be at the time when the rules were framed, there was hardly any college imparting three years degree course in Physical Education. There were diploma courses in Physical Education. For all purposes, the degree obtained in B.P.Ed. is a graduate degree. May be at the time when the rules were framed, there was hardly any college imparting three years degree course in Physical Education. There were diploma courses in Physical Education. But after the introducing of the three years degree course in Physical Education, a change was needed in the rules of recruitment and it seems that this very important aspect had escaped the attention of the authorities, even though the Committee was being formed to study the matter and on the recommendations of the Committee even State of Rajasthan had taken a decision that the degree in B.P.Ed. is equal to a graduation degree, but the rules of 1971 have not been amended or modified; the result is that higher qualified persons in specific subject of Physical Education are deprived of the appointment because of non-inclusion by way of omission of the subsequent development in education in the rules. There cannot be any doubt that a graduate or a person obtaining an equivalent qualifications of graduate with diploma in Physical Education is entitled to apply, but a candidate having passed and obtained a degree in that very subject as speciality has been deprived of to apply for appointment to PTI GI, II. This is an anamolous position. Admittedly, a diploma of one year cannot be compared to a degree of three years in Physical Education. To say that the candidates holding a degree of graduation in Physical Education are entitled to be admitted by the University of Rajasthan in post-graduate courses of Physical Education as per the prospectus issued by the University of Rajasthan, Jaipur to the fact that the graduates in B.P.Ed. were eligible to be admitted in Physical Education Post-graduate studies of two years, but for the purpose of appointment in Public service these B.P.Eds. were eligible to be admitted in Physical Education Post-graduate studies of two years, but for the purpose of appointment in Public service these B.P.Eds. are not to be considered as a graduate of three years studies and are not to be preferred in comparison to the diploma holders of one year study, leaves these candidates high and dry; result would be that such graduates of Physical Education if the rules are allowed to continue as such, are debarred from being considered only because of the reason that the State of Rajasthan or the authorities who are competent to deal with the matter have failed to rise to the occasion and made the proper modification in the rules as to include the qualification of B.P.Ed. in the rules as a qualification of eligibility for recruitment to PTT Gr.II, after introduction of such three years degree course by various Universities in India. This anamolous position is to be removed by all means and, therefore, it is to be held that the degree obtained in Physical Education of three years course after qualifying examination 10+2 course from a recognised University as recognised by the UGC is a degree and amounts to graduation like any other graduate candidate and further it is to be held that the candidates having the graduation in Physical Education degree need not possess a diploma in Physical Education as they are already in possession of a much higher qualification than the diploma and as such all those candidates who possess the Physical Education degree as aforesaid are entitled to be considered for recruitment to the post of PII Gr.II and this is the only harmoneous construction which can be made in the present case till the Government decides to modify its rule by including the qualifications for recruitment in regard to the candidates possessing the B.P.Ed. (3 years course) for the said posts. 12. Another aspect which also needs consideration is that, even though it does not arise out of the grievance of the parties, of prescribing the qualification of Secondary with four years diploma. It was admitted at the bar that there is hardly any institution in Rajasthan or any-where else which may be imparting the training after secondary examination of diploma of four years in Physical Education. It was admitted at the bar that there is hardly any institution in Rajasthan or any-where else which may be imparting the training after secondary examination of diploma of four years in Physical Education. This aspect also requires reconsideration by the State authorities and if there is no such institution of imparting training of four years diploma after Secondary Examination, prescribing of such qualification is futile. 13. The counsel for the respondents relies on Civil Writ Petition No. 1617/94 Brijesh Chand Vs. State of Rajasthan & Ors. decided on 17.7.1995, wherein the petitioner in that case was also holding a degree of Bachelor of Physical Education obtained after three years course from Amravati University was not considered eligible for the post and similarly was rejected and the contention of the petitioner to the fact that Bachelors degree in physical Education obtained by him fulfils the requirement of the rules, it was observed that graduates in Physical Education were further required to have the diploma in Physical Education, that was the strict interpretation of the rules. His Lordship observed that the word 'graduate' seems to have been used in general sense of the term, as it is understood normally to mean B.A., B.Sc., B.Com. etc. and thus the word 'graduate' cannot be taken to be a graduate in Physical Education and as per the letter and spirit of the rules reproduced above the petitioner was not held to be eligible for the post. However, it was observed that the petitioner was free to challenge the validity of the rule prescribing the qualifications by filing a separate petition if he so chooses. So far the strict interpretation of the rules is concerned, there cannot be any dispute that the petitioners are entitled to maintain the petitions. 14. In the present case, the petitioner has challenged the rule itself and, therefore, it cannot be said that the matter in question is covered against the petitioners in the case of Brijesh Chand (supra). 15. Counsel for the petitioners states that the observations made in Brijesh Chand's case are 'per incuriam'. Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong. Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong. For this purpose reliance is being placed on the decision in the case of A.R. Antulay Vs. R.S. Nayak and another (1988)2 SCC 602 wherein it was observed as under: 'It appears that when this Court gave the aforesaid directions on February 16, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar All Sarkar case. See Halsbury's Laws of England, 4th Edn., Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 130; Young V. Briston Aeroplane Co. Ltd. Also see the observations of Lord Goddard in Moore V. Hwitt and Penny v. Nicholas. "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling. Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. We are of the opinion that in view of the dear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.' 'In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on February 16, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution. The appellant has been treated differently from other offenders, accused of a similar offence in view of the provisions of the Act of 1952 and the High Court was not a court competent to try the appellant under the directions of this Court, which was in derogation of Article 21 of the Constitution. The appellant has been treated differently from other offenders, accused of a similar offence in view of the provisions of the Act of 1952 and the High Court was not a court competent to try the appellant under the directions of this Court, which was in derogation of Article 21 of the Constitution. The directions have been issued without observing the principle of audi alteram partem. It is true that Shri Jethmalani has shown us the prayers made before the High Court which are at page 121 of the paper-book. He argued that since the transfers have been made under Section 407, the procedure would be that given in Section 407(8) of the Code. These directions, Shri Jethmalani sought to urge before us, have been given in the presence of the parties and the clarificatory order of April 5, 1985 which was made in the presence of the appellant and his counsel as well as the counsel of the State Government of Maharashtra, expressly recorded that no such submission was made in connection with the prayer for grant of clarification. We are of the opinion that Shri Jethmalani is not right when he said that the decision was not made per incuriam as submitted by the appellant. It is a settled rule that if a decision has been given per incuriam the court can ignore it. It is also true that the decision of this Court in the case of Bengal Immunity Co. Ltd. Vs. State of Bihar was not regarding an order which had become conclusive inter parties. The court was examining in that case only the doctrine of precedents and determining the extent to which it could take a different view from one previously taken in a different case between different parties.' 16. What is binding on the court in the subsequent case is not the conclusion arrived at in the previous decision but the ratio of decision are binding as a precedent and not a conclusion. Reference S.P. Gupta Vs. Union of India & anor. 1981 (Supp) SCC 87. 17. There is no ratio decidendi decided in the case of Brijesh Chand (supra). 18. For the reasons mentioned above, all the writ petitions are allowed with the direction that B.P.Ed. Reference S.P. Gupta Vs. Union of India & anor. 1981 (Supp) SCC 87. 17. There is no ratio decidendi decided in the case of Brijesh Chand (supra). 18. For the reasons mentioned above, all the writ petitions are allowed with the direction that B.P.Ed. (3 years course) degree obtained by the petitioners from the recognised Universities as recognised by the UGC be considered as degree of graduation in Physical Education and all these petitioners shall be eligible for consideration for the said post along with other candidates who possess the graduate degree or equivalent to the graduate degree and the diploma in Physical Education. The respondents are directed to reconsider the cases of the petitioners as per the observations made above and prepare a merit list accordingly by treating them to be eligible for applying for the post of PTI Gr.II. and in case any of the petitioner is after consideration found to be on merit they shall be entitled to the postings if any of the candidate of less meritorious has been selected and in case the vacancies have already been filled up, in that situation, the petitioners would be offered the appointments after considerations in the vacancies which may be made available. No order as to costs.Petition Allowed. *******