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2008 DIGILAW 1629 (ALL)

BHUPENDRA NATH TRIPATHI v. STATE OF UTTAR PRADESH

2008-08-13

ARUN TANDON, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—Heard Sri Shailendra, Sri Shashi Nandan, learned Senior Advocate assisted by Sri Abhishek Srivastava for the appellants and Sri D.K. Arora learned Additional Advocate General assisted by Sri K.S. Kushwaha for the State. 2. All these appeals have been filed against a common judgment dated 01st July, 2008 passed in three writ petitions No. 27578 of 2008 (Manjusha Arora v. State of U.P. and others), Writ Petition No. 27579 of 2008 (Bhupendra Nath Tripathi and others v. State of U.P. and others) and Writ Petition No. 27577 of 2008 (Anjana Singh v. State of U.P. and others). For considering the issues raised in the appeal it is sufficient to refer to the facts and pleadings of Writ Petition No. 27579 of 2008 (Bhupendra Nath Tripathi and others v. State of U.P. and others). The writ petition was filed praying for writ of certiorari quashing the advertisement dated 18th July, 2007 and quashing the order dated 25th March, 2008 passed by Director, State Council for Education Research and Training, Nishatganj, Lucknow (hereinafter referred to as ‘SCERT’) and further quashing the consequential orders issued by Principals of various DIETs in consequence to the letter of the Director, SCERT. 3. Brief facts necessary for considering the issues are, the writ petitioners-appellants claimed to have obtained B.Ed. degree from institutions affiliated to Sampurnanand Sanskrit Vishwavidhyalaya, Varanasi and Purvanchal University, Jaunpur for different years i.e. from 1993 to 1998. The State of Uttar Pradesh for filling more than 60000 posts of Assistant Teacher in Primary Schools applied to the National Council of Teachers’ Education (hereinafter referred to as ‘NCTE’) constituted under National Council of Teachers’ Education Act, 1993 for giving permission to impart Special B.T.C. Course, 2007 to the candidates who have B.Ed. degrees to make them eligible for appointment as Assistant Teacher in the Primary Institution. NCTE granted permission to the State of Uttar Pradesh to run the Special B.T.C. Course, 2007 by its order dated 27th June, 2007. A Government Order dated 10th July, 2007 was issued thereafter laying down the eligibilities for imparting Special B.T.C. Course, 2007. In pursuance of the Government order dated 10th July, 2007 advertisement dated 18th July, 2007 was published. NCTE granted permission to the State of Uttar Pradesh to run the Special B.T.C. Course, 2007 by its order dated 27th June, 2007. A Government Order dated 10th July, 2007 was issued thereafter laying down the eligibilities for imparting Special B.T.C. Course, 2007. In pursuance of the Government order dated 10th July, 2007 advertisement dated 18th July, 2007 was published. The relevant clause of advertisement, which is in issue in the present case, is as follows and has been quoted in the impugned judgment of the learned Single Judge : “3(2) For selection in Special B.T.C. 2007, the minimum educational qualification shall be graduation and only those candidates who have passed B.Ed. examination as regular candidates from a recognized college/Degree College run by State/Central Government/Training College approved by NCTE and fulfill all other eligibilities, will be eligible.” [English Translation of para 3(2) by the court] 4. All the petitioners-appellants submitted their application in response to the advertisement dated 18th July, 2007, thereafter, applications were processed by the State authorities and they were called for by letter dated 19th April, 2008 for joining Special B.T.C. Course-2007. The letter further communicated that their names have been included in the tentative list of the candidates selected for imparting Special B.T.C. Course, 2007. Similar letters were also sent to other candidates calling them to join the training. In the meantime, relying on the Division Bench judgment in Special Appeal No. 391 of 2008, Smt. Sunita Upadhyay v. State of U.P. and others, decided, on 13th March, 2008, Reported in 2008 (4) ADJ 672 (DB) the Director, SCERT issued a letter to all the Principals to act in accordance with the judgment of the Division Bench. After issuance of the said letter of the Director SCERT, the Principals issued consequential letters to the candidates informing that in view of the Division Bench judgment in Sunita Upadhyay’s case (supra) they are not eligible for Special B.T.C. Course, 2007. 5. Aggrieved by the aforesaid actions, the writ petitions were filed by the appellants. In the writ petition two principal submissions were pressed, firstly that the appellants-writ petitioners are fully eligible for imparting Special B.T.C. Course in view of the Division Bench judgment of this Court in Ekta Shukla and others v. State of U.P. and others, 2006(1) ESC 531 and secondly, the advertisement dated 18th July, 2008 if read to mean that all the degrees of B.Ed. which were obtained prior to grant of recognition by NCTE under NCTE Act 1993 to the institution are not valid for Special B.T.C. Course-2007, such clause in the advertisement as well as the Government Order dated 10th July, 2007 is arbitrary since there is no rational basis for excluding those candidates who have obtained degree prior to grant of recognition under the NCTE Act, 1993. 6. Learned Single Judge considered both the submissions and took the view that the State was fully competent to prescribe higher or stricter qualification for admission to the course. Judgments of the Apex Court in Dr. Preeti Srivastava and another v. State of U.P. and others, (1999) 7 SCC 120 and the judgment of State of Tamilnadu and another v. S.V. Bratheep (Minor) and others, (2004) 4 SCC 513 was relied upon by the learned Single Judge. 7. Learned Single Judge further considered the submission on the basis of Division Bench judgment in Ekta Shukla’s case (supra) and observed that the subsequent Division Bench judgment in Sanjai Kumar’s case and Sunita Upadhyay’s case (supra) has laid down that as per advertisement only those candidates are eligible for imparting Special B.T.C. Course Training who have passed their B.Ed. from the institution which has been recognized by NCTE under NCTE Act hence Ekta Shukla’s case is of no help to writ petitioners. Aggrieved by the judgment of the learned Single Judge these appeals have been filed. 8. Learned Counsel for the appellants challenging the judgment of the learned Single Judge raised following submissions : (1) The Division Bench in judgment of Ekta Shukla’s case (supra) after considering the provisions of 1993 Act had categorically held in paragraph 23 of the judgment that B.Ed. degrees obtained prior to recognition in the year 1996-97, 1997-98, 1998-99 are valid for Special B.T.C. Course 2004 or for any other year for public employment. He submits that Division Bench considered and held those degrees were valid which were granted prior to the date when recognition was granted to the institutions as well as Sampurnanand Sanskrit Vishwavidyalaya under the 1993 Act. Submission is that subsequent judgments in Sanjai Kumar’s and Sunita Upadhyay’s case (supra) have taken contrary view placing reliance on the advertisement dated 1st July, 2007 to the effect that since advertisement provides eligibility to those candidates who have passed their B.Ed. Submission is that subsequent judgments in Sanjai Kumar’s and Sunita Upadhyay’s case (supra) have taken contrary view placing reliance on the advertisement dated 1st July, 2007 to the effect that since advertisement provides eligibility to those candidates who have passed their B.Ed. Degree from institution or the University recognized by NCTE Act 1993, hence all other degrees are not eligible. Further submission is that the subsequent Division Bench has not looked into the effect and consequences of the provisions of 1993 Act and in fact has laid down something which is contrary to the earlier Division Bench judgment in Ekta Shukla’s case (supra). Learned Counsel for the appellant submits that subsequent judgments do not lay down the correct law. (2) The learned Counsel for the appellants submitted that the requirement in the advertisement was with regard to degree obtained from institution which has received recognition from NCTE. He submits that the advertisement require the recognition of NCTE and it does not require possessing recognition at the time of award of degree of B.Ed. He submits that if the clause is to be interpreted to mean that at the time of the award of degree of B.Ed. the institution should be recognized by NCTE such prescription in the advertisement will be violative of Articles 14 and 16 of the Constitution of India. He submits that the candidates who possessed B.Ed. degree prior to grant of recognition under NCTE Act, 1993 to a institution cannot be denied the benefit of imparting Special B.T.C. Course nor there is any rational basis for excluding such candidates. It is further submitted that there are two categories of candidate : (i) the application of the institutions and universities were filed under the NCTE Act for grant of recognition and which remained pending consideration for quite long time and subsequently recognition was granted, and (ii) the candidates who have passed their B.Ed. even prior to enforcement of 1993 Act. He submits that both these categories of candidates are excluded under the advertisement which has no rational basis and the above clause of advertisement is liable to be struck down. (3) It is further submitted that in response to the advertisement dated 18th July, 2007 the candidates through out the State of Uttar Pradesh applied and the State authorities including Principal DIET and Director SCERT considered those candidates eligible who had obtained their B.Ed. (3) It is further submitted that in response to the advertisement dated 18th July, 2007 the candidates through out the State of Uttar Pradesh applied and the State authorities including Principal DIET and Director SCERT considered those candidates eligible who had obtained their B.Ed. degree even prior to 1993 Act or during the period when the application of the institutions were pending which was ultimately granted recognition and in fact their names were also included in the tentative final list prepared for the candidates on the basis of merit for imparting training. He submits that the State authorities never at any point of time raised objections regarding eligibility of the candidates of both the categories, as mentioned above, and it is only after the Division Bench judgment in Sunita Upadhyay’s case the letter dated 25.3.2008 was issued by the Director SCERT. The State is estopped from raising objections regarding eligibility when it has permitted all those candidates to participate in selection to admission course. 9. Sri D.K. Arora learned Additional Advocate General replying the submission of counsel for the appellants contended that State is not concerned with the application of the institutions made for recognition under the NCTE Act, 1993 and the State will only look into the recognition granted by NCTE to the Institutions and only those degrees, which have been obtained by the candidates from the institutions which were granted recognition under the NCTE Act, are eligible. Sri Arora further contended that the judgment of Division Bench in Ekta Shukla’s case is per incurium and does not lay down the correct law. He submits that there is rational basis for excluding the candidates who obtained their B.Ed. degree prior to 1993 Act and also the candidates who have obtained their B.Ed. degree prior to grant of recognition under NCTE Act. He submits that in case there was any grievance of the candidates with regard to their recognition they ought to have approach NCTE and obtain appropriate clarification or order from the NCTE. 10. We have considered the submission raised by the Counsel for the parties and have gone through the records. 11. NCTE Act, 1993 has been enacted by Parliament in the year 1993 for the establishment of National Council for Teacher Education with a view to achieve planned and co-ordinated development of teachers’ educational system throughout the country. 10. We have considered the submission raised by the Counsel for the parties and have gone through the records. 11. NCTE Act, 1993 has been enacted by Parliament in the year 1993 for the establishment of National Council for Teacher Education with a view to achieve planned and co-ordinated development of teachers’ educational system throughout the country. The Act has been enacted by the Parliament in exercise of its legislative power under Entry 66 of the List I of the 7th Schedule of Constitution of India. The State has jurisdiction to legislate under List III Entry 25 of the 7th Schedule of the Constitution of India with regard to education. The respective field of legislation by Parliament and the State with regard to education has time and again been considered by the Apex Court, in a recent judgment reported in 2006(9) SCC 1 , State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidhyalaya and other, The Supreme Court laid down following in para 62 : 62. From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution. 12. The first submission is with regard to the judgments of the Division Bench in Ekta Shukla’s case and subsequent two Division Bench judgments in Sanjay Kumar and Sunita Upadhyay’s case. Prior to enforcement of 1993 Act the teacher’s education training was imparted by the institutions or the Universities in accordance with the provisions of U.P. State Universities Act, 1973 and other statutory Enactment. The candidates in various Universities of the State were imparted and granted B.Ed. degree even prior to 1993 Act under the different Universities Act through-out the State including by the Central Universities. 13. The candidates in various Universities of the State were imparted and granted B.Ed. degree even prior to 1993 Act under the different Universities Act through-out the State including by the Central Universities. 13. The issue, which has been raised is as to whether the degree which were granted to the candidates prior to the grant of recognition to an institution or University under the NCTE Act, 1993 will not be eligible for the Special B.T.C. course-2007. It is useful to look into the provisions of NCTE Act in this regard specially Section 14 of the Act which is quoted below : "14. Recognition of Institutions offering course of training in Teacher Education.—(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations : Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by Regional Committee. (2) .......... (3) On receipt of an application by the Regional Committee from any institution, under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall— (a) If it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or (b) If it is of the opinion that such institution does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reason to be recorded in writing : Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation. (4) Every order granting or refusing recognition to an institution for a course or training in teacher education under sub-section (3) shall be published in the official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government. (5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3). (6) .............” 15. The submission which has been pressed by learned Additional Advocate General is that the State will treat the degree as valid only when it is obtained by an institution who has been granted recognition under 1993 Act. He submitted that the candidate who possess degree granted by the institution or University prior to recognition under 1993 Act cannot be treated to be eligible. He submitted that although it is permissible for the NCTE to grant any recognition retrospectively but it is for the NCTE to grant such recognition and State is bound to follow the recognition order of the institution granted by the NCTE. 16. Under Section 2(i) of the Act recognized institution is defined as : “2(i) recognized institution means an institution recognized by the Council under Section 14.” 17. Proviso to Section 14(1) of NCTE Act, 1993 specifically provides that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the same period and until the disposal of the application by the Regional Committee. 18. The permission given under proviso to Section 14(1) of the NCTE Act to institution to run courses until the application is decided is specific positive provision to continue courses by the institution and if an institution continues the said courses as per Section 14(1) proviso can it be said that degree given to the candidates within the said period is not valid or not recognized. The recognition under proviso to Section 14(1) is nothing but an implied permission/recognition granted by NCTE to .an institution to continue the course for the time being till the application is decided. The recognition under proviso to Section 14(1) is nothing but an implied permission/recognition granted by NCTE to .an institution to continue the course for the time being till the application is decided. The said recognition is, in our view, for all practical purposes, permission granted by the NCTE to run the courses. The Division Bench in Ekta Shukla’s case has laid down in paragraph 19 which is as under : "19. Regarding the stop students orders passed by the Council for the academic years in question, we are of the clear view that these orders were passed without jurisdiction. Section 14 quoted above is a Section inserted for the continuance of the running Institutions. This continuance is a matter of course provided applications for recognition have been made to the body in question and those are not fatally defective. Once those applications have been made, they can be either finally accepted or finally rejected. The Section itself contains the clause, so to speak by way of an interim order and that is, the deemed recognition will continue until, if unfit at all, the application is rejected.” 19. Section 14(5) of the Act also draws considerable light over the object and purpose of the Act. Section 14(5) is quoted below : “14(5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3).” 20. Section 14(5) of the Act mandates that where recognition has been refused the institution shall discontinue the course/training from the end of the academic session next following the date of receipt of the order. Section 14(5) of the Act thus permits the course to be continued to its logical end and discontinues the course in the end of academic session during which the recognition has been refused. The legislature was fully conscious that even rejection of the application shall not effect the academic course which is continuing. Section 14(1) proviso and Section 14(5) of the Act thus throw considerable light that Act never intended that all running courses should be discontinued immediately and even after rejection of the application, the relevant academic session was allowed to be completed. 21. As noted above, the recognition has been defined under Section 2(i) of the Act. Section 14(1) proviso and Section 14(5) of the Act thus throw considerable light that Act never intended that all running courses should be discontinued immediately and even after rejection of the application, the relevant academic session was allowed to be completed. 21. As noted above, the recognition has been defined under Section 2(i) of the Act. The recognition granted under Section 14(3) of the Act as well as the implied recognition and permission given under Section 14(1) proviso and 14(5) is also within the meaning of Section 14 of the Act the recognition of the Course. The judgments, on the basis of which the Director SCERT issued the circular, is the judgment of Sunita Upadhyay’s case. In Sunita Upadhyay’s case the question was of B.Ed. course from an institution from Madhya Pradesh in 1994-95. The Division Bench relied on the judgment of Yogesh Kumar and others v. Govt. of NCT, Delhi and others, 2003 (3) SCC 548 . The Division Bench in Sanjai Kumar’s case took the view that since the advertisement was very clear (dated 18th July, 2007) hence those candidates, who have obtained degree not as per advertisement were not eligible. In Sanjai Kumar’s case the judgment in Ekta Shukla’s case was referred to and sought to be distinguished. Paragraphs 3 and 4 of the judgment in Sanjai Kumar’s case which is relevant is quoted below : “3. In our view, such an interpretation cannot be given. The moment recognition application is rejected, it will relate retrospectively. That apart, the other submission of Mr. Khare is that in the case of Ekta Shukla v. State of U.P. and others, 2006 (1) ESC 531 (All) (DB), the Division Bench has taken a view relying upon Section 14 of the N.C.T.E. Act, that during such period the certificate given will have to be considered as valid, for the Special B.T.C. Course. It is another matter that in that judgment, the situation was different in the sense the recognition application of the institution was not rejected. It is another matter that in that judgment, the situation was different in the sense the recognition application of the institution was not rejected. We would like to refer to the fact that this judgment of the Division Bench has not considered the judgment of the Apex Court in Yogesh Kumar v. Government of N.C.T., Delhi, (2003) 3 SCC 548 : 2003 (3) AWC 1828 (SC), wherein the Apex Court in para 8, observed that it is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. 4. In the instant case, the advertisement is very clear and it requires the persons concerned to have the Diploma or B.P. Ed. or equivalent degree or diploma from an institution which is recognised by N.C.T.E. The Division Bench judgment in Ekta Shukla (supra) states that the degree or diploma will be valid. There is no quarrel with that preposition, but it will not be valid for the B.T.C. Course concerned, for the reason that under the advertisement, there is a specific stipulation and that stipulation is not satisfied by the candidates. The candidates cannot claim the benefit of that degree or diploma for this particular course. The inference which flows from the judgment of Yogesh Kumar (supra) and which we have drawn concerning the advertisement, is not reflected in the judgment of the Division Bench in Ekta Shukla (supra). The Division Bench judgment, therefore, had not considered the question from the approach that is to be taken with respect to the advertisement concerned. That degree or diploma will be valid for other purposes, but not for the concerned admission to the B.T.C. Course, where there is a specific stipulation that the person concerned must have concerned degree or diploma from the N.C.T.E. recognised institution.” 22. The Division Bench in Sanjai Kumar’s case was dealing a case where the candidate had obtained diploma in physical education from an institution whose application for recognition was subsequently rejected on 8.10.1999, however, the degree was obtained by the candidate in the year 1998-99. The Division Bench in para 3 of the judgment observed that the moment the recognition application is rejected, it will relate retrospectively. The provision of Section 14(5) of the Act was not placed before the Division Bench. The Division Bench in para 3 of the judgment observed that the moment the recognition application is rejected, it will relate retrospectively. The provision of Section 14(5) of the Act was not placed before the Division Bench. The Division Bench judgment in Ekta Shukla (supra) was noticed and it was observed- in paragraph 3 that in the case of Ekta Shukla the situation was different since the application of the recognition by the institution was not rejected. Further reliance was placed by Division Bench in Sanjai Kumar’s case on the judgment of the Apex Court reported in 2003 (3) SCC 548 , Yogesh Kumar and others v. Government of N.C.T. Delhi for the proposition that it is open for the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. Paragraph 8 of the judgment of the Apex Court in Yogesh Kumar (supra) was relied which is quoted below : “8. This last argument advanced also does not impress us at all. Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from rules allows entry to ineligible persons and deprives many others, who could have completed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. The recruitment authorities were well aware that candidates with qualification of TTC and B.Ed. are available yet they chose to restrict entry for appointment only to TTC-pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made............” 23. In Yogesh Kumar’s case, Supreme Court was considering a case where the advertisement for the appointment of the Assistant Teachers did not mention B.Ed. as qualification. The candidates, who had obtained B.Ed., claiming appointment on the post of Assistant Teacher filed writ petition which writ petition was dismissed by the Delhi High Court. One of the submission raised before the Apex Court was that, in past persons having B.Ed. qualification were appointed by the Municipal Corporation. as qualification. The candidates, who had obtained B.Ed., claiming appointment on the post of Assistant Teacher filed writ petition which writ petition was dismissed by the Delhi High Court. One of the submission raised before the Apex Court was that, in past persons having B.Ed. qualification were appointed by the Municipal Corporation. Rejecting the said argument it was laid down in para 8, as quoted above, that recruitment to public service should be held strictly in accordance with the terms of advertisement and the recruitment rules. In Yogesh Kumar’s case B.Ed was not the qualification for the post. In the facts of the present case there is no dispute that B.Ed. is qualification for admission to Special B.T.C. Training Course. The issue in the present case is as to whether the B.Ed. degree, which is obtained after recognition by NCTE by an institution is only to be treated as eligible or B.Ed. degree obtained at the time when application for recognition was pending can also be treated to be degree valid for Special B.T.C. Course-2007. Further more, in case of Sanjai Kumar there was no challenge to the relevant clause in the advertisement before the Court whereas in the writ petition out of which this appeal arises the above mentioned clause in the advertisement has been challenged. In Sanjai Kumar’s case the Division Bench also referred to Ekta Shukla’s case, as noticed above, and it has been observed that in Ekta Shukla’s case the degree or diploma were held to be valid to which there cannot be the dispute but the diploma and degree will not be valid for Special B.T.C. Course concerned, since under the advertisement there is a specific stipulation to that effect, as noticed above. In para 23 of Ekta Shukla’s case the Division Bench has categorically laid down that degree and diploma granted to the institution whose application is pending consideration shall be valid for Speical B.T.C. Course 2004 or thereafter. Relevant observation in Ekta Shukla’s case were made in para 23 which is quoted below : “23. In para 23 of Ekta Shukla’s case the Division Bench has categorically laid down that degree and diploma granted to the institution whose application is pending consideration shall be valid for Speical B.T.C. Course 2004 or thereafter. Relevant observation in Ekta Shukla’s case were made in para 23 which is quoted below : “23. It is declared that the degrees for the academic years 1996-97, 1997-98, 1998-99 and indeed for all academic years pursued either in the Faculty of Education of the University or in any of the affiliated Colleges in question, is valid, and that the qualifications granted by these bodies shall be treated to be valid for the purpose of pursuing Special B.T.C. Course, either of the year 2004 or any other year and for public employment. We take note that the Colleges themselves are not parties before us, but the University is a party and nine (9) students have come in appeal. It is not necessary, that the Colleges have to be made parties as the case has been argued by the contestants including the State, which is a very material respondent, who will be particularly bound by our orders.” 24. In view of the aforesaid, we are of the view that the view taken by Division Bench in Sanjai Kumar’s case takes almost different view than one taken in Ekta Shukla’s case. In Ekta Shukla’s case it was specifically laid down in paragraph 23 that degrees are valid for purpose of pursuing Special B.T.C. Course, either in the year 2004 or any other year. Thus, on one hand the Division Bench in Ekta Shukla’s case held that those degrees which were obtained prior to recognition of the institution under the NCTE Act 1993 were valid even for Special B.T.C. Course whereas in Sanjai Kumar’s case view has been taken that the said degrees are valid but are not valid for Special B.T.C. Course-2007. These two views are contrary to each other. 25. We sitting in Division Bench cannot hold that which judgment lay down correct law and it is appropriate that the questions be referred to a larger Bench for authoritative pronouncement as to which of the view expressed in the two Division Benches, on one hand Ekta Shukla’s case and on the other hand Sanjai Kumar and Sunita Upadhyay’s case lays down correct law. 26. 26. The learned Counsel for the appellants submits that in case it is to be treated that under the advertisement the degrees, which were awarded by institution after obtaining recognition under the NCTE Act, 1993 are only eligible, this is an arbitrary and unreasonable classification. He submits that there is no rational basis for excluding the candidates who were granted the B.Ed. degree by the respective institution prior to 1993 Act or even after enforcement of the Act and during the period when applications were pending consideration. He submits that for both categories of candidates, as noted above, the degrees are fully valid for Special B.T.C. Course. The object of starting Special B.T.C. Course-2007 has been given in the pleadings of the State and various Government Orders. The object of starting Special B.T.C. Course-2007 was to impart Special B.T.C. Course to the candidates who are B.Ed. to make them eligible for appointment in primary schools since more than 60000 vacancies of primary teachers is lying vacant for years and there are dearth of candidates having B.T.C. degree in the State of Uttar Pradesh. The learned Single Judge in the impugned judgment has rejected the submission of learned Counsel for the appellants holding that State is fully empowered to lay down a higher qualification in view of the law laid down by the Apex Court in Dr. Preeti Srivastava’s case (supra). The issue, which is to-be considered is, as to whether the State by the advertisement in the clause in question laid down any higher qualification. The Apex Court in Dr. Preeti Srivastava and State of Tamil Nadu (supra) has laid down that with regard to the norms of admission, as laid down by the Parliamentary Act in exercise of legislative power under Entry 66 of List I, State is fully empowered to lay down any higher educational standard. Although State cannot lay down in its enactment or rules any provision contrary to any legislation under Entry 66 List I but it is fully competent to lay down higher or more stringent qualification. 27. The apex Court in Dr. Preeti Srivastava’s case (supra) laid down that State Government can prescribe qualifications in addition to those prescribed under Parliamentary Enactment under Entry 66 List I. However, lowering of norms laid down in the Parliamentary Enactment is not permissible. Following was laid down in paragraph 36 which is as under : “36. 27. The apex Court in Dr. Preeti Srivastava’s case (supra) laid down that State Government can prescribe qualifications in addition to those prescribed under Parliamentary Enactment under Entry 66 List I. However, lowering of norms laid down in the Parliamentary Enactment is not permissible. Following was laid down in paragraph 36 which is as under : “36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical course, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education.” 28. The Apex Court had again an occasion to consider the question of qualification in context of admission to Engineering colleges in 2004 (4) SCC 513 , State of Tamil Nadu and another v. S.V. Bratheep (Minor) and others. In the said case qualifications were prescribed by All India Council of Technical Education in accordance with the provisions of All India Council of Technical Education Act. The State Government prescribed additional qualification as minimum eligible marks for SC/ST as mere pass, most backward at 50% average marks in the related subjects, backward at 55% average marks in the related subjects and other classes at 60% average marks in the related subjects. The question arose as to whether the qualification prescribed by the State of Tamil Nadu was contrary to the Regulations framed under All India Council for Technical Education Act. Considering the aforesaid, following was laid down in para 9 : “9. The question arose as to whether the qualification prescribed by the State of Tamil Nadu was contrary to the Regulations framed under All India Council for Technical Education Act. Considering the aforesaid, following was laid down in para 9 : “9. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by AICTE. It is no doubt true that AICTE prescribed two modes of admission one is merely dependent on the qualifying examination and the other, dependent upon the marks obtained at the common entrance test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by AICTE, can it be said that it is in any manner adverse to the standards fixed by AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by AICTE would allow admission only on the basis of the marks obtained in the qualifying examination, the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. If we proceed to take the standard fixed by AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either even, the streams proposed by AICTE are not belittled in any manner.’ The manner in which the High Court has proceeded is that what has been prescribed by AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. Preeti Srivastava case. It is no doubt true, as noticed by this Court in Adhiyaman case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not a very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by a series of decisions of this Court including Dr. Preeti Srivastava case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.” 29. From the law laid down by the Apex Court in the aforesaid two cases it is clear that the State Government in addition to those prescribed in Parliamentary Act can provide for higher or additional qualification which in no manner lower down the qualification prescribed in the Parliamentary Act. There cannot be any dispute that State of U.P. can prescribe any higher or stricter qualification in addition to those as prescribed in Regulations framed under NCTE Act, 1993. As noticed above, in the present case the NCTE has provided admission to Special B.T.C. Course to the candidates who are already B.Ed. There cannot be any dispute that State of U.P. can prescribe any higher or stricter qualification in addition to those as prescribed in Regulations framed under NCTE Act, 1993. As noticed above, in the present case the NCTE has provided admission to Special B.T.C. Course to the candidates who are already B.Ed. The question as to whether the requirement provided by State of U.P. that only those candidates are eligible who have passed B.Ed. from institution recognised by NCTE is prescription of any higher or stricter qualification. There could not have been any dispute if the State of U.P. required that those candidates who have passed B.Ed. with 60% are eligible for Special B.T.C. Course since that would have been a higher or stricter qualification prescribed and would have been clearly protected by the judgment of Apex Court in Dr. Preeti Srivastava and State of Tamil Nadu (supra). The present is case wherein the qualification of B.Ed. itself which is prescribed by NCTE the State has excluded one of the two categories of candidates who have passed B.Ed. and has made a classification by making eligible only those candidates who have passed B.Ed. after the institution has been recognised by NCTE. Such classification has been challenged in the writ petition giving rise to this appeal. Learned Single Judge has upheld the abovenoted clause in the advertisement relying on the judgments of Dr. Preeti Srivastava and State of Tamil Nadu (supra). 30. We are of the view that the aforesaid two judgments do not support the prescription of above mentioned qualification in the advertisement by the State of U.P. and it is difficult to accept the submission that the prescription of the above noted qualification by the State is by virtue of it having power to prescribe higher or stricter qualification. The qualification prescribed is not any higher or stricter qualification but it has provided making one category of B.Ed. as eligible and another category of B.Ed. as ineligible. The qualification prescribed is not any higher or stricter qualification but it has provided making one category of B.Ed. as eligible and another category of B.Ed. as ineligible. As observed above the question as to whether the two other categories of candidates who have passed B.Ed are eligible for Special B.T.C. Course-2007 and the conflict in two Division Bench judgments that is Ekta Shukla’s case on one hand and Sanjai Kumar and Sunita Upadhyay’s case on other hand is being referred to larger Bench for consideration, we think it appropriate to refer one more question for consideration to the larger Bench as to whether the classification provided by the State in the advertisement, as noticed above, is valid classification since this question is related question to the issues which are referred to the larger Bench and shall have effect on thousands of the candidates and the State administration. 31. Now the third submission of the learned Counsel of the appellants is that the State authorities right from inviting application and processing the applications always treated the degrees of B.Ed. granted prior to 1993 or during pendency of the applications for recognition and no candidates were treated to be ineligible or rejected on this ground. There is further material on record that the petitioners-appellants were included in the tentative list and were called for joining training. As noticed above, it is only after the letter of the Director SCERT dated 25th March, 2008 informing the Principals about the Division Bench judgment in Sunita Upadhyay’s case that letter has been written to the appellants declaring them to be ineligible. Thus, the action has been taken by the State subsequent to the judgment of the Sunita Upadhyay’s case. The sequence of the events indicated above, indicate that the State Authorities never rejected the candidature on the ground which has now been taken by the State authorities in rejecting the candidature. The candidates, who were selected on merits and were called for to join the training has equitable right to be permitted to complete the training which of course shall abide by the final decision taken in these appeals. 32. In view of foregoing discussion, we refer following questions to be considered by a larger Bench : (1) Whether after the enforcement of 1993 Act the candidates who obtained B.Ed. 32. In view of foregoing discussion, we refer following questions to be considered by a larger Bench : (1) Whether after the enforcement of 1993 Act the candidates who obtained B.Ed. degree from an institution or a University during the period when the application of the Institution or University for grant of recognition was pending are eligible for Special B.T.C. Course-2007 as held by Division Bench judgment in Ekta Shukla’s case ? Or Whether the candidates who have obtained degree from an institution or University recognised by NCTE are only eligible for Special B.T.C. Course 2007 as held by Division Bench judgment in Sanjai Kumar and Sunita Upadhyay’s case ? (2) Whether recognition, as referred to in the proviso to Section 14(1) of the N.C.T.E. Act 1993 can be treated to be deemed recognition under the 1993 Act of an institution or a University for the period application were pending? (3) Whether the exclusion of those candidates from field of eligibility for Special B.T.C. Course-2007 who have obtained B.Ed. degree prior to enforcement of 1993 Act or after the enforcement of 1993 Act during the period when the application of the Institution or the University was pending consideration, is arbitrary and unreasonable violative of Articles 14 and 16 of the Constitution of India? 33. Let this matter be placed before the Hon’ble the Chief Justice for constituting a larger Bench for consideration of above questions. 34. We further provide that those candidates, who have been selected by the respective DIET for imparting training, will be permitted to complete the training which however shall be subject to the result of these appeals and their candidature will not be rejected only on the ground that they have passed B.Ed. prior to grant of recognition to the institution under the NCTE Act, 1993. It goes without saying that training shall be imparted by the State authorities as per the capacity of the seats in the respective DIETs and as per their normal turn to receive training. ———