JUDGMENT 1. - A bunch of writ petitions was decided by this Court by a common judgment. The aforesaid judgment was challenged before the Division Bench mainly on the ground that as to whether candidates possessing qualification of Bachelor of Physical Education ( for short "B.PEd.") are eligible for appointment to the post of Physical Training Instructor Grill (for short "the PTI Gr Ill") has not been decided. Considering all the relevant aspects, the Division Bench remitted the matter back to this Court by setting aside the judgment. The petitions have been placed before this Court accordingly and now, with the consent of all the parties as well as learned counsel for the intervenor, they have been heard finally and decided by this common judgment. 2. It is a case where Rajasthan Public Service Commission (for short "the' RPSC") issued an advertisement for recruitment to the post of PTI Gr.II and PTI Grill vide advertisement dated 03.09.2008. The separate codes where provided for two posts with further direction to submit separate applications. The qualification for two posts were also mentioned in the advertisement. The petitioners as well as the Intervenors appeared In selection and thereupon, result was declared. The controversy arose when pursuant to the combined competitive examinations for two posts, the candidates were placed In the select list ignoring their application for a particular post as well as qualification. This was even ignoring the fact that by corrigendum dated 22.09.2009, it was directed that applicants should appear in the selection to the post for which they possess educational qualification/training. It was also clarified that if anybody will appear in the selection with the wrong post code then his result would be declared in that code only. The RPSC issued select list wherein even the candidates, who had not applied for post of PTI Grill were declared qualified to that post. Same is the position for the post of PTI Gr.II. The action of the respondents was challenged by maintaining various writ petitions. Therein, a further issue was raised as to whether a candidate can be held eligible for a post even if he/she is not in possession of required qualification, as given in the Rules. Same is the position for the post of PTI Gr.II. The action of the respondents was challenged by maintaining various writ petitions. Therein, a further issue was raised as to whether a candidate can be held eligible for a post even if he/she is not in possession of required qualification, as given in the Rules. These matters were earlier considered by the Coordinate Bench wherein it was held that those candidates, who did not apply for the post of PTI Grill, yet their names are placed in select list to the said post is illegal. Same way, those, who had not applied for the post of PTI GrII, should not have been shown in the select list for the said post. The outcome of the judgment was that select list should have been prepared from and amongst meritorious candidates for the post, for which they had applied. The issue as to whether candidates with qualification of B.P.Ed. are eligible for appointment on the post of PTI Grill was left open. The challenge to the aforesaid judgment sustained before the Division Bench as the crucial issue as to whether candidates with the qualification of B.P.Ed. are eligible for the post of PTI Grill was required to be decided. 3. Learned counsel for petitioners submit that advertisement provides different qualification for the post of PTI Gr.II and PTI Grill and which is same as provided under the Rajasthan Educational Subordinate Service Rules, 1971 (for short "the Rules of 1971 "). The respondent RPSC made it clear that candidates should appear for the post for which they possess qualification; but contrary to the aforesaid, the candidates holding B.PEd. degree were selected for the post of PTI Grill though aforesaid is not the qualification provided under the Rules or in the advertisement for the post of PTI Grill. The equivalence of the qualification or to treat B.P.Ed. qualification holder to be eligible for the post of PTI Gr.II & Gr. III was given by the Government vide their letter dated 06th January, 2010 though no such authority exists with the State and otherwise, the eligibility criteria cannot be changed in the midst of selection. The RPSC issued select list wherein candidates holding of qualification of B.P.Ed. qualification holder to be eligible for the post of PTI Gr.II & Gr. III was given by the Government vide their letter dated 06th January, 2010 though no such authority exists with the State and otherwise, the eligibility criteria cannot be changed in the midst of selection. The RPSC issued select list wherein candidates holding of qualification of B.P.Ed. were also placed in the list of PTI Grill and thereby, the eligible candidates holding the required qualification of Certificate of Physical Education (for short "C.P.Ed.") were deprived to get appointment. In the case of K. Manjusree v. State of Andhra Pradesh & Anr., reported in (2008) 2 SCC 512 , it is held that selection criteria should be prescribed in advance and Rules of the game should not be changed afterwards. In the case of Hemani Malhotra v. High Court of Delhi, reported in (2008) 7 SCC 11 , change in Rules during the selection process was held to be impermissible. Recently, same view has been taken by this Court in the case of Narrotam Meena & Anr. v. The State of Rajasthan & Ors., In SB Civil Writ Petition No. 17251/2011 decided on 14.12.2011 . Accordingly, the Circular of the Government dated 06.01.2010 should not have been made applicable to the selection of the year 2008 and the aforesaid circular should otherwise be treated as nullity being in contravention to the statutory Rules of 1971. 4. It is further urged that applications were required to be submitted by the candidates taking note of the qualification mentioned in the advertisement. However, the Government permitted B.PEd. qualification holders to be eligible for the post of PTI Grill by issuing the Circular dated 06.01.2010, which is much subsequent to the advertisement of the year 2008 and many candidates holding the qualification of B.P.Ed. could not presume that such a circular would be issued by the Government in future so as to make them eligible for the post of PTI Gr.IIl thus to apply for that post because advertisement does not provide B.P.Ed.qualification for the post of PTI Grill. As per the reply given by the Government and even the Circular shows that it is only at the instance of those, who applied for the post of PTI Gr.IIl though holding the qualification of B.PEd. As per the reply given by the Government and even the Circular shows that it is only at the instance of those, who applied for the post of PTI Gr.IIl though holding the qualification of B.PEd. and knowing it well that it is not the requisite qualification under the Rules of 1971 and given in the advertisement. By their default, they applied for the post of PTI Grill and the Government has agreed to grant benefit to those defaulters, that too, when it is in conflict with the Rules of 1971. By change of eligibility in the midst, those candidates holding the qualification of B.P.Ed. but did not apply for the post of PTI Grill in anticipation of any amendment in the qualification are deprived to get the appointment to that post. In the aforesaid background, the Circular dated 06th January, 2010 is nothing but to bestow favour to few in a discriminatory manner. 5. It is further urged that after coming into effect of National Council for Teacher Education Act, 1993 (for short "NCTE Act of 1993") the recruitment on the post of Teachers has to be made after taking note of the qualification provided under National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in School) Regulation, 2001 (for short "the Regulations of 2001 ") notified by the Council in the year 2001 and so amended in the year 2003. The respondents failed to notice the aforesaid. The NCTE is an expert and competent body to provide qualification for recruitment to the post of Teachers. The issue regarding the qualification of teachers came up for consideration before the Division Bench of this Court in the case of Kailash Chandra Harijan v. State of Rajasthan & Ors., reported in 2006 (1) RLR 665 . Therein, the Government was given specific direction to modify/frame the Rules to make it in conformity to the qualification provided in schedule appended to the Regulation of 2001 though the aforesaid direction was in reference to the post of Teacher Gr.lll, but applies to all the posts falling under The Regulations of 2001. The respondent department failed to amend the service rules so as to make it in conformity to the Regulations of 2001. This is more so when mandate was there to amend the rules within a period of three years from the date of notification of Regulation of 2001. The respondent department failed to amend the service rules so as to make it in conformity to the Regulations of 2001. This is more so when mandate was there to amend the rules within a period of three years from the date of notification of Regulation of 2001. The selection of B.PEd. qualification holder to the post of PTI Gr.III goes contrary to the Regulation of 2001 as therein only C.P.Ed. Qualification holder with other qualifications are entitled to the post of PTI Gr.IIl as the aforesaid post is meant up-to elementary level of schools. The B.P.Ed. qualification holders are eligible for the post of PTI Gr.II as the aforesaid post is meant at the level of secondary/high school. The respondents failed to carry out the mandate of the Regulation of 2001 and of the NCT Act, 1993. 6. In the aforesaid circumstances also, treating anyone eligible contrary to the Regulation of 2001 becomes illegal. To support the arguments, a reference of judgment of the Hon'ble Apex Court in the case of Yogesh Kumar & Ors. v. Government of NCT, Delhi & Ors., reported in (2003) 3 SCC 548 ; P.M. Latha & Anr. v. State of Kerala & Ors., reported in (2003) 3 SCC 541 ; and in the case of Dilip Kumar Ghosh & Ors. v. Chairman & Ors., reported in JT 2005 (8) SC 271 has been given. The aforesaid cases were decided by the Hon'ble Apex Court after taking note of the provisions of the Act of 1993 and regulations of 2001 made thereunder. In the case of Yogesh Kumar & Ors. (supra), the controversy was similar as Is raised herein. The only difference Is of the post. Therein, the candidates holding the qualification of B.Ed. were not held eligible to the post of Teacher Gr.lll at the elementary level, though qualification of B.Ed. was shown to be higher qualification. In view of the aforesaid, the respondents were required to notice the qualification prescribed under the Regulation of 2001 where different qualification for different post has been prescribed by the NCTE after under taking exercise to find out as to what should be qualification of the post of Teachers at different levels of school. The NCTE is an expert body to provide qualification for recruitment of the Teachers. Thus, provisions made by them should not have been brushed aside or ignored by the respondents. The NCTE is an expert body to provide qualification for recruitment of the Teachers. Thus, provisions made by them should not have been brushed aside or ignored by the respondents. However, in the present matters, no significance is attached to the aforesaid. 7. Learned counsel for the petitioners have further made a reference of following judgments to substantiate their arguments : (i) Rajesh Kumar Gupta & Ors. v. State of U.P., reported in 2005`(5) SCC 172 ; (ii) Ganga Shankar Meena & Ors. v. In, DB Civil Special Appeal (W) NO. 272/2011 ; (iii) Pawan Kumar Jain & Anr. v. State of Rajasthan & Ors., reported in (3) WLC (Raj.) 172 . 8. It is accordingly, prayed that the writ petitions may be allowed after holding that for the post of PTI Grill, B.PlEd. qualification holders are not eligible, rather it is only those holding qualification of C.P.Ed. along with other qualifications are eligible as prescribed under the Rules of 1971 and the advertisement along with the Regulations of 2001 and accordingly select list should be issued. 9. It is lastly contended that even the curriculum of the course of C.PEd. and B.PlEd. are different and in the aforesaid background, the B.PlEd. qualification cannot be held to be higher qualification or a qualification for the post of PTI Grill Referring to the schedule appended to the Regulation of 2001, it is submitted that if B.PlEd. qualification holders were to be held eligible to the post of PTI Grill and PTI Grll by narrating the level, elementary and higher secondary/high school etc. The Regulation of 2001 otherwise provides that if any question of equivalence comes, then decision would be of the Council and shall be treated as final, thus the State Government was not having authority to hold any qualification to the equivalent. Accordingly also, the Circular dated 06th January, 2010 should not have been given effect to by the RPSC. Accordingly, while maintaining the direction as given earlier by the Coordinate Bench of this Court In its judgment, further direction may be given to the RPSC to exclude those candidates holding qualification of B.PEd. degree for the post PTI Gr.Ill. 10. Learned counsel for the State Government as well as the RPSC, Mr. Accordingly, while maintaining the direction as given earlier by the Coordinate Bench of this Court In its judgment, further direction may be given to the RPSC to exclude those candidates holding qualification of B.PEd. degree for the post PTI Gr.Ill. 10. Learned counsel for the State Government as well as the RPSC, Mr. S.N. Kumawat, AAG, on the other hand submits that Rules of 1971 have not been amended and qualification prescribed in the advertisement is as per,..the Rules of 1971. The Government issued Circular on 06th January, 2010 for the reason that educational qualification given under the Rules for the post of PTI Gr.II and PTI GrIll were abandoned. The Government of Rajasthan is not providing course of Diploma In Physical Education or Certificate in Physical Education after the year 2000. The only course available in the State of 1 Rajasthan is Bachelor of Physical Education. To give significance to the course available In State of Rajasthan, the Circular dated 06th January, 2010 was Issued so as to make B.PEd. qualification holder eligible for the post of PTI Gr.II as well as PTI Gr III. There is no III-Intention of the respondents of intention to favour one set of candidates. The respondents had not challenged earlier judgment of the Coordinate Bench in the present matters when a direction was given to eliminate those, who had not applied for a particular post, to say that if one has not applied for the post of PTI Grill then eliminate his name for the select list for the said post and similar exercise for the post of PTI Gr.II. the respondents took a decision to follow the said judgment. However, now a further direction to follow the said judgment. However, now a further direction to eliminate those, who has even applied for the post of PTI Grill only for the reason that they are possessing qualification of B.P.Ed. would not be proper as the B.PEd is higher qualification than C.P.Ed. thus, a candidate holding higher qualification is eligible to apply and compete for a post providing lower qualification. The State Government has issued Circular dated 06th January, 2010 after noticing the aforesaid. To support the arguments, a reference of the judgment in the case of Rakhi Ray & Ors. v. High Court of Delhi & Ors., reported in AIR 2010 SC 932 has been given. The State Government has issued Circular dated 06th January, 2010 after noticing the aforesaid. To support the arguments, a reference of the judgment in the case of Rakhi Ray & Ors. v. High Court of Delhi & Ors., reported in AIR 2010 SC 932 has been given. A further reference of the judgment in the case of Barot Vijay Kumar Balakrishna & Ors. v. Modh Vinaykumar Desrathilal & Ors., reported on 2011 LAB.I.C. 3155 is given wherein introduction of the eligibility criteria in the midst of selection process was held to be permissible in the case where advertisement was silent about it. Similar view was taken by the Hon'ble Apex Court in the case of State of Jharkhand & Ors. v. Ashok Kumar Dangi & Ors., reported in AIR 2011 SC 3182 wherein the State was held competent to frame policy. A further reference of the judgment of the Division Bench of this Court in the case of State of Rajasthan & Ors. v. Hari Ram & 16 Ors., reported in 2001 (1) WLC (Raj.) 124 has been given to show that B.P.Ed. holder therein is held eligible for the post of PTI Grill, thus issue raised herein has already been settled by the Division Bench of this Court. The decision aforesaid was given after taking note of the fact that B.P.Ed. qualification is higher qualification. Accordingly, the issue raised herein has already been settled by the Division bench, thus all the writ petitions may be dismissed on the aforesaid ground alone. 11. Learned Additional Advocate General was, however, fair enough to state that a letter was sent by him to amend the Service Rules to make It In conformity to the Regulation of 2001. It was when these matters were pending before the Division Bench. The Government has not taken any cognizance to the letter send by him on 21.10.2011. The letter was sent by the learned Additional Advocate General to avoid further litigation on the issue in view of the Regulation of 2001. 12. Learned counsel for the intervenor/s Mr. Rajendra Soni, on the other hand submits that the issue raised before the Division Bench and the remand of the cases should not be applied to his client/s in view of the fact that a writ petition preferred by him to pray that B.P.Ed. qualification holder is eligible for the post of PTI Gr. Learned counsel for the intervenor/s Mr. Rajendra Soni, on the other hand submits that the issue raised before the Division Bench and the remand of the cases should not be applied to his client/s in view of the fact that a writ petition preferred by him to pray that B.P.Ed. qualification holder is eligible for the post of PTI Gr. III was allowed and judgment therein has not been challenged before the Division Bench, thereby the judgment In his petition attained finality. It is accordingly, prayed that even if view Is taken adverse to B.P.Ed. qualification holders for their eligibility to the post of PTI Gr.Ill, it should not be made applicable on his client/s, whose petition was allowed by this Court. He further made reference of two documents, i.e., the order of the State Government issued on 24th March, 2000 to show that B.PEd. Course stands on better footings and with aforesaid only, the Course of D.P.Ed. was abandoned with the direction to provide course of B.P.Ed. A further reference of Circular of the NCTE issued in the month of April, 2001 has been given to reiterate the same position. Accordingly, it is submitted that B.PEd. qualification holder should not be made ineligible for the post of PTI Grill as it is a better and higher qualification. Other than these two documents referred to above, no material has been placed before me or argument raised by the learned counsel for intervenor/s. 13. I have considered the rival submissions made by learned counsel for the parties and scanned the matter carefully. 14. It is a case where writ petitions were earlier decided by the Coordinate Bench, however, in view of the remand of the matters by the Division Bench, entire controversy is required to be determined afresh, as the earlier judgment has been set aside. 15. Two issues have been raised before me, which are interlinked and basically the issue is as to whether candidates possessing qualification of B.P.Ed. are eligible for appointment on the post of PTI Grill. If the aforesaid issue is decided holding that the candidates possessing qualification of B.P.Ed, are not eligible for the post PTI Gr.Ill then the second issue as decided earlier by the Coordinate Bench gets covered automatically by eliminating all those candidates from the select list of PTI Grill who are having qualification of B.P.Ed. If the aforesaid issue is decided holding that the candidates possessing qualification of B.P.Ed, are not eligible for the post PTI Gr.Ill then the second issue as decided earlier by the Coordinate Bench gets covered automatically by eliminating all those candidates from the select list of PTI Grill who are having qualification of B.P.Ed. This is irrespective of the fact that as to whether they applied for the aforesaid post or not. However, if the main issue is decided in favour of those candidates, who are possessing the qualification of B.P.Ed. and held eligible to the post of PTI Grill then the second issue remains relevant, i.e., as to whether a candidate, who had not applied for the post of PTI Gr.Ill can be placed in the select list for the aforesaid post. 16. For the consideration of main issue, it would be first relevant to make a reference of the Service Rules of 1971. This is to notice as to what educational qualification criteria has been provided for the post of PTI Grill and PTI Gr.II. For ready reference, the Schedule appended to the Service Rules of 1971 is quoted hereunder : 1 2 3 4 5 6 7 8 9 1. Physical Training Instruction Gr.ll Physical 50% by promotion and 50% by direct recti. Graduate or equivalent examination with diploma in Physical Education [for Secondary] with four years diploma in Physical Education. Physical Training instructors Gr.III Graduate or equivlent examination recoginzed by Government of Rajasthan with certificate of Physical Education and 5 years experience on the post mentioned in. 1. Dy. Director of Education of the Range 2. One D.E.O. to be nominated by the Director of Education (P&S) 3. One expert to be nominated by the Director. Range Wise 2. Physical Training Instruction Gr.III 100% by direct rectt. Senior Secondary Certificate of Board of Secondary Education Recognized by the Govt. of Rajasthan and Secondary or equivalent examination recognized by the Govt. of Rajasthan with five subjects three of them should be Mathematics, English and Hindi with Certificate in Physical Education. 1. DEO (Boys) of concerned district as Chairman. 2. DEO (Girls) of concerned district as Member, 3. DEO (Elementary of concerned district as Member, 4. One Specialist to be nominated by Range Officer concerned (Male) of the Rank not less than Principal Member. Inspectorate wise. 1. DEO (Boys) of concerned district as Chairman. 2. DEO (Girls) of concerned district as Member, 3. DEO (Elementary of concerned district as Member, 4. One Specialist to be nominated by Range Officer concerned (Male) of the Rank not less than Principal Member. Inspectorate wise. Note:- Following candidates shall also be eligible for recruitment to the post of PTI Gr III : (1) Who have passed C.PEd. Examination before this amendment. (2) Who have been admitted to C.PEd. upto session 1994-95 and passed thereafter. (3) Widows and Divorced Woman appointed prior to this amendment under proviso to Rule 22 of the Rajasthan Education Subordinate Service Rules, 1971.]" 17. The qualification provided under the Rules and quoted above has been mentioned In the advertisement also. Therein, the RPSC while issuing the advertisement on 03rd September, 2008 provided same qualifications for the post of PTI Gril and PTI Grill. The two posts, named above, were given different code, namely, code 35 for the post of PTI Gr.II and code 36 for the post PTI GrAll. It was also mentioned that there would be separate applications for two posts. Relevant para Nos. 1, 2 and 7 of the advertisement are quoted hereunder for ready reference : " 1- fo'ks"k uksV % OMR Application From ds dkWye la[;k 11 esa vuqns'kd xzsM& II ds fy, in dh dze la[;k 35 ,oa vuqns'kd xzsM& III ds fy, in dh dze la[;k 36 dk mYys[k djsaA uksV %& efgyk vH;fFkZ;ksa ds fy, fjfDr;ksa dk vkj{k.k f'kf/k Hkkjrh esa izoxkZuqlkj 30 izfr'kr gksxk ftlesa ls 5 izfr'kr fo/kok vH;fFkZ;ksa ds fy, gksxkA foKkfir fjfDr;ksa esa efgyk vH;fFkZ;ksa dk vkj{k.k n.Mor :i ls izoxkZuqlkj gksxkA inksa dh la[;k esa deh@o`f) dh tk ldrh gSA 2- in dks dze la[;k 35 ,oa 36 ds fy, vyx&vyx vkosnu i= izLrqr djuk gksxkA 7- 'kS{kf.kd ;ksX;rk% in ds dze la[;k 35 ds fy, 'kS{kf.kd ;ksX;rk% (i) Gradude of equivalent examination with diploma Physical Education. or Secondary with 4 years diploma in Physcial Education. (ii) Working knowledge of Hindi Written in Devnagri script and Knowledge of Rajasthan Culture. or Secondary with 4 years diploma in Physcial Education. (ii) Working knowledge of Hindi Written in Devnagri script and Knowledge of Rajasthan Culture. in ds dze la[;k 35 ds fy, 'kS{kf.kd ;ksX;rk% vko';d uksV% in dh dze la[;k 35 ,oa 36 ds fy, ijarq ;g fd mijksDr ;ksX;rk ds ikB~;dze vfUre o"kZ dh ijh{kk tks lh/kh HkrhZ ds fy, fu;eksa ;k vuqlwph esa ;Fkk mfYyf[kr visf{kr 'kS{kf.kd vgZrk gS esa lfEefyr gqvk gks ;k lfEefyr gksus okyk O;fDr in ds fy, vkosnu djus ds fy, ik= gksxk fdUrq mls vk;ksx }kjk vk;ksftr ijh{kk dh fnukad rd 'kS{kf.kd vgZrk vftZr djus dk lcwr nsuk gksxk] vU;Fkk vkosnd vik= ekuk tk,xkA " 18. Perusal of the rules and relevant portion of the advertisement show that the educational qualification provided for the post of PTI Gr.II and PTI Grill are different. As per the Rules and advertisement, a candidates holding the qualification of Diploma in Physical Education apart from other qualifications, are eligible for the post PTI Gr.II whereas candidates holding qualification of Certificate of Physical Education apart from other qualifications are eligible for the post of PTI Gr.III. The respondent RPSC then issued press note on 22.09.2009 clarifying that two posts, namely, PTI Gr.II and PTI Gr-III are having different codes, thus the candidates should appear for the selection for the post, for which they possess required qualification, failing which their candidature would be considered for the code, they appeared. The press note dated 22.09.2009 has been enclosed alongwith the writ petition and for ready reference, the same Is quoted hereunder : jktLFkku yksd lsok vk;ksx] vtesj                   fnukad 22-09-2009 izsl foKkfIr 'kkjhfjd izf'k{k.k vuqns'kd PTI xzsM& II ,oa III ijh{kk] 2008 ds inksa gsrq ,sls vH;FkhZ ftUgksaus ,d ls vf/kd vkosnu i= Hkjs gSa mUgsa lwfpr fd;k tkrk gS fd vk;ksx }kjk tkjh foKkiu ds rgr xzsM& II gsrq in dh dksM la[;k 35 o"kZ xzsM& III ds fy, in dksM la[;k 36 fu/kkZfjr dh xbZ gS] vr% izkFkhZ Lo;a dh 'kS{kf.kd@iz'kS{kf.kd ;ksX;rk ds vuqlkj ijh{kk esa mifLFkr gks;s] xyr in dh dksM la[;k ij ijh{kk nsus ij mldk ijh{kk ifj.kke mlh in dksM esa ?kksf"kr fd;k tkosxkA rnuqlkj dh ik=rk dh tkap dh tkosxh] in dh dksM la[;k dh tkudkjh gsrq vk;ksx ds osc lkbM MCyw-MCyw-MCyw-vkjih,llh-xks-bu- ij ckj dksM esa ,oa uke ls lpZ dj vko';d tkudkjh izkIr dj ldrs gSA 19. From perusal of the press note quoted above, it becomes clear that candidates were to appear for the respective posts as per the qualification required for it. The whole controversy arose when the Government issued a Circular dated 06th January, 2010 indicating that the candidates holding qualification of D.P.Ed. and B.REd. would also be eligible for the post of PTI Gr.III. The said document has also been enclosed along with the writ petition, thus quoted hereunder for ready reference : " mijksDr fo"k;kUrxZr lUnfHkZr i= ds lEcU/k esa funsZ'kkuqlkj ys[k gS fd ih0Vh0vkbZ0 xzsM&f}rh; o r`rh; inksa dh HkrhZ ds lEcU/k esa fuEukuqlkj fy, x, fu.kZ; vuq:i dkjokbZ djus dk Je djkosa %& 1- lh0ih0,M0 ikB~;dze d{kk ckjgoha ds i'pkr~ dk ikB~;dze gS] vr% lh0ih0,M0 dh rqyuk esa mPprj Lrj ds 'kkjhfjd f'k{kk ds ikB~;dze Mh0ih0,M0 ,oa ch0ih0,M0 ;ksX;rk/kkjh vk'kkfFkZ;ksa dks Hkh 'kkjhfjd f'k{kd xzsM&r`rh; ds fy, ik= ekuk tkosA " 20. Prior to the issuance of the Circular dated 06th January, 2010, quoted above, no controversy arose in regard to the selection, however, the controversy got strengthened when the RPSC prepared select list in implementation to the Government's decision dated 06th January, 2010 thereby not only those, possessing the qualification of B.P.Ed. were included in the select list for the post PTI Gr.III but even those candidates, who had not applied for the said post, were also given placement therein. 21. Bare perusal of Circular dated 06th January, 2010 shows that it is contrary to the Service Rules of 1971 whereas it is settled law that an administrative order can supplement statutory provisions but cannot supplant it. In the case is hand, the Rules of 1971 have not been amended by the respondents, yet contrary to the Rules and advertisement, Circular has been issued supplanting the Rules of 1971 by the administrative order, which is not sustainable in the eye of law. 22. The question further remains as to whether the Circular dated 06th January, 2010 is legally sustainable as it is in ignorance to the Regulations of 2001 altogether when it occupies field to provide qualification to the post of Teacher as per the Act of 1993. 23. It is a matter, which is required to be looked into not only in reference of the Service Rules of 1971 but after taking note of the Regulations of 2001 as notified by NCTE on 03rd September, 2001. 23. It is a matter, which is required to be looked into not only in reference of the Service Rules of 1971 but after taking note of the Regulations of 2001 as notified by NCTE on 03rd September, 2001. The aforesaid Regulations were taken into consideration by the Hon'ble Apex Court in several cases to decide controversy of eligibility for the post of Teacher when recruitments were made in contravention to the Regulations of 2001. Similar controversy even came up for consideration before the Division Bench of this Court in the case of Kailash Chandra Harijan (supra). So far as the post of Teachers at primary and elementary levels are concerned, the issue of qualification at different levels of schools is almost settled but the controversy in the present matters is in regard to the post of PTI Gr.III. Since NCTE Act came in the year 1993 and now the Council created under the Act occupies field to provide qualification for recruitment to the post of Teacher, hence, the Regulations of 2001 are not only material but required to be looked into. 24. The Regulation 2 of the Regulations of 2001 provides about its applicability in the matters of recruitment of teachers in all formal schools. Regulation 3 of the Regulations of 2001 talks about the qualification for recruitment whereas Regulation 4 provides about the necessity of the amendment in recruitment rules. Regulation 5 and 6 provide about power to relax the regulation as well as authority of the Counsel to give interpretation. The Schedule appended to the Regulation provides qualification of teachers at different levels so as the teachers of Physical Education. Since, present matter is in reference to the post of Teachers of Physical Education, thus Schedule appended to the Regulations of 2001 is quoted hereunder for ready reference: "Second Schedule to the National Council for Teacher Education (Department of Minimum Qualifications for Recruitment of Teachers) Regulations, 2001. Qualifications for recruitment of teachers of Physical Education in Educational Institutions mentioned in Section 2 of the Regulations: LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS 1. Elementary (i) Senior Secondary School Certificate or Intermediate or its equivalent; and (ii) Certificate in Physical Education (C.PEd.) of a duration of note less than two years or its equivalent. II. Secondary/ High School Graduate with Bachelor or Physical Education (B.P.Ed.) or its equivalent. III. Senior Secondary M.P.E./M.P.Ed. Elementary (i) Senior Secondary School Certificate or Intermediate or its equivalent; and (ii) Certificate in Physical Education (C.PEd.) of a duration of note less than two years or its equivalent. II. Secondary/ High School Graduate with Bachelor or Physical Education (B.P.Ed.) or its equivalent. III. Senior Secondary M.P.E./M.P.Ed. (2 years duration) (Physical education as an elective subject) NOTE 1. Some of the States are having certificate in physical education courses of one year duration only, while in some other States students passing secondary level examination are admitted to certificate in physical education courses. Such States may, by 2005, conduct certificate in physical education programmes of a duration of not less than two years with admission being open to Senior Secondary/Intermediate pass candidates. In the meanwhile, candidates who have undergone certificate courses in physical education of one year duration or were admitted to such programmes after passing secondary level examination only may be given employment in the concerned States only." 25. Perusal of the Schedule quoted above shows that for the appointment to the post of the Teachers for Physical Education at the elementary level, the required qualification is Certificate of Physical Education of a duration of not less than two years or its equivalent with other qualification. The qualification for Teachers of Physical Education at the level of secondary/high school is again given in the Schedule, which is different than for the elementary level. It has been admitted by all the learned counsel that so far as the post of PTI Gr.III is concerned, it is at the elementary level whereas the post of PTI Gr.II is concerned, it is at the level of secondary/high school. To appreciate the provisions of Regulations of 2001, the Regulation Nos. 2, 3 4, 5 and 6 are quoted hereunder for ready reference : "2). Applicability [These Regulations shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognised by Central or State Government and other authorities for imparting education at pre- school, nursery followed by first two years in formal school, elementary (primary and upper primary/middle school), secondary and senior secondary stages.] 3). Qualifications for Recruitment (i) The qualifications for recruitment of teachers in educational institutions mentioned in Section 2 above shall be as given in the First and Second Schedules to these Regulations. Qualifications for Recruitment (i) The qualifications for recruitment of teachers in educational institutions mentioned in Section 2 above shall be as given in the First and Second Schedules to these Regulations. The qualifications prescribed in the First Schedule shall apply for recruitment of teachers for teaching school subjects. The qualifications prescribed in the Second Schedule shall apply for recruitment of teachers for Physical Education. (ii) For recruitment of teachers for co- curricular activities such as work experience, art education, etc., existing qualifications or such other qualifications as may be prescribed by the concerned Government shall apply. (iii) For promotion of teachers from one level to the next level of teaching, minimum qualification as given in the Schedules for the concerned level would be required. 4. Amendment of Recruitment Rules The existing recruitment rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules. Meanwhile, teachers appointed as per the existing recruitment qualifications, subsequent to the issue of these Regulations, will be required to acquire qualifications as prescribed in the Schedules. 5. Power to relax Where the Council is satisfied, on receipt of reference from the concerned Government, that special circumstances exist warranting relaxation of some of the provisions of the regulations for sometime it may grant relaxation of that provision to such extent and subject to such conditions as it may consider necessary in a just and equitable manner. 6. Interpretation If any question arises relating to interpretation of these Regulations or equivalence of various teacher's training programmes, decisions of the Council shall be final." 26. Perusal of the Regulations quoted above shows its applicability for recruitment to the post of Teachers in all formal schools and the qualification for recruitment should be as provided in first and second Schedule appended to those- Regulation. The qualification provided in second schedule is to apply to the recruitment of Teacher for Physical Education. Regulation 4 provides for amendment in the existing service rules within a period of three years so as to make it in conformity to the qualification prescribed in the schedule. Regulation 6 provides that if any question arises regarding equivalence of various teacher's training programmes, the decision of the Council shall be final. Regulation 4 provides for amendment in the existing service rules within a period of three years so as to make it in conformity to the qualification prescribed in the schedule. Regulation 6 provides that if any question arises regarding equivalence of various teacher's training programmes, the decision of the Council shall be final. In view of the Regulations of 2011 so notified under the Act of 1993, the domain lies with the Council to provide qualification for different posts of teachers and every State Government was under a mandate to modify their recruitment rules accordingly. It is admitted by learned Additional Advocate General that the State Government has not amended the service rules to make it in conformity to the Regulations of 2001 and it is further admitted that course for Certificate of Physical Education with the duration of two years has not been started by them. 27. The facts aforesaid show total failure of the State Government to follow the provisions of the Act of 1993 and Regulations of 2001 made thereunder. 28. The issue now comes as to what are the consequences if the recruitment rules are not amended. The issue aforesaid has already been settled by the Court holding that recruitment rues contrary to the Regulations of 2001 will not hold field after expiry of period of three years. In the aforesaid under the Rules of 1971 becomes ineffective and recruitment to the post of PTI has to be as per the qualification prescribed under the Regulations of 2001. A reference of the judgment in the case of Kailash Chand Harijan (supra) is given with relevant para wherein, similar issue came up and decided by the Court. Relevant para No. 25 is quoted hereunder for ready reference : "25. The binding nature of the NCTE Regulations cannot be doubted. After the 42nd Amendment in the Constitution the power to legislate on professional and technical institutions and determination of standards of education therein can be traced to entries 65 and 66 of List 1 of the 7th Schedule to the Constitution (See the decision in Union of India v. Shah Goverdhan L. Kabra Teachers College, JT 2002 (8) SCC 269 . By the 42nd amendment, the subject of 'education including universities' which figured at Entry 11 in List II was deleted and substituted as Entry 25 in List II but subject to the provisions of Entries 63, 64, 65 and 66 of List I. By virtue of re-allocation of power the States also have power to legislate on education, regulate the establishment and maintenance of educational institutions but in exercise of the power cannot make rules contrary to standards prescribed under the Central legislation. The following observations in Union of India v. Shah Goverdhan L. Kabra Teachers' College are apposite "the NCTE is an expert body created under the provisions of the National Council for Teacher Education Act, 1993 and the Parliament has imposed upon such expert body the duty to maintain the standards of education particularly, in relation to the teachers education." The NCTE established under an Act of Parliament enacted in terms of Entries 65 and 66 of List I having fixed the norms and qualifications, it is not open to the State Government to fix any qualification contrary to those laid down by the NCTE. Indeed, as provided in regulation 4 of the Regulations, the States are supposed to modify/frame recruitment rules in conformity with the qualifications prescribed in the Schedule. Regulation 4 runs as under : "The existing recruitment rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules. Meanwhile, teachers appointed as per the existing recruitment qualification, subsequent to the issue of these Regulations, will be required to acquire qualifications as prescribed in the Schedules." We have, therefore, no doubt in our mind that the qualifications fixed by the State under rule 226 of the Panchayati Raj Rules cannot govern appointment of teachers in primary/primary section of upper primary schools teachers to the extent it is contrary to the Regulations of the NOTE and the observations relied upon by the learned Advocate General lend no support to the argument." 29. In view of the judgment referred to above, the respondents were under an obligation to make recruitment to the post of PTI as per the qualification provided under the Regulations of 2001. If the Schedule to the Regulation is looked into then it becomes clear that qualification of B.P.Ed. In view of the judgment referred to above, the respondents were under an obligation to make recruitment to the post of PTI as per the qualification provided under the Regulations of 2001. If the Schedule to the Regulation is looked into then it becomes clear that qualification of B.P.Ed. is not a qualification to the post of PTI GrIll, i.e., the Teacher for Physicat- Education at elementary level. Accordingly, by bare reading of the Schedule to the Regulations of 2001, the main issue can be answered holding that those, who are possessing qualification of B.P.Ed. are not eligible for the post of Teacher for Physical Education at elementary level. 30. The issue, however, needs further consideration in view of the arguments made by the learned counsel for the respondents giving out that B.PEd. is a higher qualification than C.PEd. provided under the Regulations of 2001 and which has already been considered and decided by the Government vide the Circular dated 06th January, 2010. In view of the Circular, a candidate, possessing higher qualification should be held entitled for appointment to the post requiring lower qualification. 31. The first issue for my consideration is as to whether the State Government is competent to give equivalence to any qualification as has been done by issuing Circular dated 06th January, 2010. 32. Perusal of the Regulation 6 of the Regulations of 2001 shows that an issue of equivalence can be decided by the Council and in the aforesaid background, the Circular issued by the Government on 06th January, 2010 is without authority of law, thus deserves to be set aside summarily or cannot be given effect to as it is running contrary to the Regulation 6 of the Regulations of 2001. In fact, question of equivalence of any training can be determined only by the Council under the Regulations of 2001, which has not been determined. Since there is no decision by the Council to hold qualification of B.P.Ed. to be equivalent to C.P.Ed., Government's decision to treat the qualification of B.REd. to be equivalent or higher to the qualification of C.P.Ed. cannot be accepted as it goes beyond their competence and jurisdiction. 33. The aforesaid issue is further required to be viewed as the NOTE is an expert body to provide qualification for recruitment to the post of Teacher. to be equivalent or higher to the qualification of C.P.Ed. cannot be accepted as it goes beyond their competence and jurisdiction. 33. The aforesaid issue is further required to be viewed as the NOTE is an expert body to provide qualification for recruitment to the post of Teacher. They under expert opinion, provided different qualifications to the post of Teacher for Physical Education at different levels. At the elementary level, the Regulation does not hold a candidate possessing qualification of B.P.Ed. to be eligible, rather the NCTE very cautiously provided different qualifications at different levels. It was also done even in the case of Teachers at different level. The Hon'ble Apex Court while considering the controversy regarding qualification of teachers, came to the conclusion that a candidate holding qualification of B.PEd. and termed to be higher qualification, was not entitled for the appointment to the post of Teacher imparting teaching at the elementary level of school. Therein, significance to the Schedule was given providing different qualification for different levels. In the present matters also, petitioners have narrated the curriculum as well as subject taught at the level of B.PEd. and C.REd., which are different. In any case, two courses have not been given equivalence by the Council, rather shown separately for eligibility of Teachers for Physical Education at different levels. 34. In the aforesaid background and the fact that there is no material before the Court to hold that the qualification of B.P.Ed. is higher than the qualification of C.P.Ed., other than narrating that admission in B.P. Ed. is after graduation whereas admission in C.P.Ed. is after Senior Secondary/ Inter mediation. I find that similar arguments were raised to show B.Ed. to be higher qualification than of B.S.T.C. when question of qualification of Teachers came up for consideration before the Apex Court as admission in B.Ed. is after graduation whereas for B.S.T.C. is after Senior Secondary. The same argument to hold qualification of B.Ed. to be higher was not excepted. It is further that question of equivalence or other issues pertaining to academic qualification does not fall within the jurisdiction of this Court, rather it remains with the experts and herein, the expert body is NCTE. This Court cannot accordingly, hold qualification of B.P.Ed. to be higher qualification than the C.P. Ed. or even equivalent. It is further that question of equivalence or other issues pertaining to academic qualification does not fall within the jurisdiction of this Court, rather it remains with the experts and herein, the expert body is NCTE. This Court cannot accordingly, hold qualification of B.P.Ed. to be higher qualification than the C.P. Ed. or even equivalent. A reference of letter dated 24th March, 2000 was given by learned counsel for the intervenor/s but it is of no relevance because the qualification of B.P. Ed. was given significance comparing it with the erstwhile qualification of D.REd. and not with the C.PEd. The similar issue has already been decided by the Court and relevant para Nos. 17, 18, 22, 23, 24, 25 and 27 in the case of Kailash Chandra Harijan (supra) are quoted hereunder for ready reference : "17. In view of the decisions of the Apex Court in Yogesh Kumar v. State of NCT Delhi, (2003) 3 SCC 548 ; P.M. Latha v. State of Kerala, JT 2003 (2) SC 423 ; and Dilip Kumar Ghosh v. Chairman, JT 2005 (8) SC 271 , it is well settled that B.Ed. Qualification cannot be treated at par with BSTC qualification for recruitment of teachers at primary school level. It is true that the NCTE Regulations provides for "minimum qualifications" and at the first instance it does appear that a higher qualification cannot be regarded as disqualification for recruitment but considering the nature of training imparted in BSTC course the conclusion is irresistible that only BSTC trained teachers can be appointed and they alone impart better education to students of tender age at the primary level of education. As observed in Dilip Kumar Ghosh case (supra) : "In the case of junior basic training and primary teachers training certificate the emphasis is on the development of child. The primary education is upto IV standard. Thereafter there is middle education and then the secondary and higher secondary education. But in the primary schools one has to study the psychology and development of child at tender age. The person who is trained in B.Ed. Degree may not necessarily be equipped to teach a student of primary class because he is not equipped to understand psychology of a child at the early stage." "To accept a proposition that a candidate who holds a B.Ed. The person who is trained in B.Ed. Degree may not necessarily be equipped to teach a student of primary class because he is not equipped to understand psychology of a child at the early stage." "To accept a proposition that a candidate who holds a B.Ed. Degree, that is, higher degree cannot be deprived appointment to the post of primary school teacher would negate the aims and objects of the rules for the purpose for which it is framed." 18. Learned Advocate General appearing for the respondents tried to wriggle out of the situation submitting that the impugned appointments have been made for upper primary schools and not primary schools; in 1 the upper primary schools teaching is imparted from Class I to VIII, and as would appear from the Schedule of the Regulations, graduate with Bachelor of Education (B.Ed.) or is equivalent is one of the alternate qualifications for appointment of teacher In upper primary school. Learned Advocate General submitted that the State Government is 1 competent to fix the qualification and also lay down the manner of recruitment. The amendments made in the Panchayati Raj Act and the Panchayati Raj Rules permit composite selection for upper primary schools from amongst candidates possessing BSTC or B.Ed. Qualification. The advertisement was issued accordingly. The amendments having been upheld by the Division Bench of this Court, the impugned selection/appointments do not suffer from any infirmity to warrant interference. 22. The observations - as would appear from the discussions a little hereinafter - do lend support to the case of the respondents in a different context and for a different reason but on that basis the prescription of B.Ed. as the requisite qualification for appointment in primary/primary section of upper primary schools cannot be upheld. The decisions were rendered prior to coming into force of the Regulations and there was no occasion to consider whether it is open to the State to fix any qualification contrary to the norms laid down by the NCTE. We may deal with this aspect at this stage. 23. The National Council for Teacher Education Act, 1993 under which the NCTE has been established has been enacted with a view to achieving planned and co- ordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith. 23. The National Council for Teacher Education Act, 1993 under which the NCTE has been established has been enacted with a view to achieving planned and co- ordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith. Under section 12 of the Act, it is the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and the determination and maintenance of standards of teacher education, and for the purposes of performing its functions under this Act the Council may among other things - vide clause (d), "lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions." Section 32 of the Act confers power upon the Council to make regulations not inconsistent with the provisions of the Act and the rules made thereunder, generally to carry out the provisions of the Act and in particular to provide for - vide clause (d)(i) of Sub-section (2) - "the norms, guidelines and standards in respect of minimum qualifications for a person to be employed as a teacher under clause (d) of Section 12." 24. On a conjoint reading of the above provisions it is manifest that the Council is competent to fix minimum qualifications for employment as a teacher in educational institutions covered under the NCTE Act. Reference may be made to (5) Union of India & Ors. v. Shah Goverdhan L. Kabra Teachers College, JT 2000 (8) SC 269 wherein decision of the Allahabad High Court holding that Special Basic Teacher's Certificate training course is not the requisite qualification as it is not recognised by the NCTE Act and the Regulations framed thereunder, was upheld by the Supreme Court. 25. The binding nature of the NOTE Regulations cannot be doubted. After the 42nd Amendment in the Constitution the power to legislate on professional and technical institutions and determination of standards of education therein can be traced to entries 65 and 66 of the List I of the 7th Schedule to the Constitution (See the decision in Union of India v. Shah Goverdhan L. Kabra Teachers College, JT 2000 (8) SC 269 . By the 42nd amendment, the subject of 'education including universities' which figured at Entry 11 in List II was deleted and substituted as Entry 25 in List III but subject to the provisions of Entries 63, 64, 65 and 66 of List 1. By virtue of re-allocation of power of States also have power to legislate on education, regulate the establishment and maintenance of educational institutions but in exercise of the power cannot make rules contrary to standards prescribed under the Central legislation. The following observations in Union of India v. Shah Goverdhan L. Kabra Teachers College are apposite "the NCTE is an expert body created under the provisions of the National Council for Teacher Education Act, 1993 and the Parliament has imposed upon such expert body the duty to maintain the standards of education particularly, in relation to the teachers education" The NCTE established under an Act of Parliament enacted in terms of Entries 65 and 66 of List I having fixed the norms and qualifications, it is not open to the State Government to fix any qualification contrary to those laid down by the NCTE. Indeed, as provided in regulation 4 of the Regulations, the States are supposed to modify/frame recruitment rules in conformity with the qualifications prescribed in the Schedule. Regulation 4 runs as under : "The existing recruitment rules may be modified within a period of three years so as to bring them In conformity with the qualifications prescribed In the Schedules. Meanwhile, teachers appointed as per the existing recruitment qualifications, subsequent to the Issue of these Regulations, will be required to acquire qualifications as prescribed in the Schedules." We have therefore, no doubt In our mind that the qualifications fixed by the State under rule 266 of the Panchayatl Raj Rules cannot govern appointment of teachers In primary/primary section of upper primary schools teachers to the extent it is contrary to the Regulations of the NCTE and the observations relied upon by the learned Advocate General lend no support to his argument. 27. In course of hearing it transpired that reference is proposed to be made to the NCTE to relax the qualification in view of paucity of BSTC pass candidates for appointment in the primary schools or primary section of upper primary schools in the State. 27. In course of hearing it transpired that reference is proposed to be made to the NCTE to relax the qualification in view of paucity of BSTC pass candidates for appointment in the primary schools or primary section of upper primary schools in the State. It was stated that on similar reference made by the Government of Uttar Pradesh in NCTE has relaxed the qualification. On behalf of the petitioners it was submitted that the fact that the Government itself propose to make reference and seek relaxation of qualification shows that even according to the State B.Ed. teachers are not eligible for appointment in primary schools or primary section of upper primary schools. In view of our conclusion that the impugned selections/appointments are saved by regulation 4 it is not necessary to make any comment. The period of three years envisaged in regulation 4 has since came to an end and It goes without saying that the State Government Is required to modify/frame its recruitment rules In conformity with the qualifications prescribed In the schedules and make selections/appointments in accordance with them subject of course to relaxation by the NCTE In future In terms of regulation 5 of the Regulations." 35. In the aforesaid judgment, issues were considered and decided after referring judgments of the Hon'ble Apex Court. 36. In view of the judgment referred to above, Court cannot hold any qualification to be higher qualification for the lower post. In fact, different qualifications for different level of Teacher for Physical Education are provided by the Council after taking note of the curriculum and other aspects. It is only for the reason that all the State Governments have given direction to provide qualification of C.P.Ed. with two years duration from the year 2005 onwards otherwise there was no necessity for Council to append note to the Schedule. It is further a fact that State Government could have sent the matter to the Council for equivalence as per Regulation 6 of the Regulations of 2001, but ignoring the above, State itself issued the order dated 6.1.2010 in violation of Regulation 6.In the aforesaid background, I am unable to accept and hold that B.PEd. It is further a fact that State Government could have sent the matter to the Council for equivalence as per Regulation 6 of the Regulations of 2001, but ignoring the above, State itself issued the order dated 6.1.2010 in violation of Regulation 6.In the aforesaid background, I am unable to accept and hold that B.PEd. is higher qualification to C.PEd., rather such domain lies with the Council under Regulation 6 of the Regulations of 2001 and the Court is not having jurisdiction to declare any qualification equivalent or higher, rather it should be done by the experts. In the aforesaid background also, a candidate possessing qualification of B.P.Ed. cannot be held eligible to the post of Teacher for Physical Education at the elementary level, i.e., the post of PTI Gr.III in violation of Schedule-II of Regulation of 2001. 37. In the case of Hari Ram & 16 Ors. (supra), the Division Bench of this Court held that a candidate holding the qualification of B.P.Ed. to be eligible for the post of PTI Gr.II & III, however, I find that the aforesaid issue was dealt with by the Coordinate Bench on the earlier occasion referring to the fact that controversy therein was in respect to the post of PTI Gr.II and not for PTI GrIll, thus other than in the last para of the judgment, it has nowhere discussed or held that B.PEd. qualification holder are eligible to the post of PTI Gr.III. Therein, before the Division Bench, reference of the Regulations of 2001 was not there with its consequential effect as the judgment therein was given in reference to the Regulation of 1971 whereas such Regulation cannot be given effect to in view of the expiry of three years after coming into effect the Regulations of 2001. It was for the reason that in the aforesaid judgment, the recruitment was much prior to the Regulations of 2001 as the writ petitions therein were decided in the year 1999, i.e., much prior to the Regulations of 2001. In the present matters, the issue has been decided in reference to the Regulations of 2001, thus the judgment in the case of Hari Ram & 16 Ors. (supra) cannot be applied to the present matters and otherwise, it was not a case in regard to the post of PTI Grill. 38. In the present matters, the issue has been decided in reference to the Regulations of 2001, thus the judgment in the case of Hari Ram & 16 Ors. (supra) cannot be applied to the present matters and otherwise, it was not a case in regard to the post of PTI Grill. 38. So far as the judgments referred by the RPSC as well as intervenor/s are concerned, none of the judgments provide assistance on the issue raised and arguments made herein. In the case of Rakhi Ray & Ors. (supra), the issue was quite different than the Issue raised herein. In the case of Barot Vijay Kumar Balakrlshna & Ors. (supra), the issue was as to whether eligibility criteria can be prescribed In the midst of selection process. Therein, It was held to be permissible In view of silence In the advertisement. Therein, cut off marks were provided to make a candidate eligible for viva voce as it was not In conflict with the rules. Thus, In the aforesaid case, the controversy was altogether different and it was not a case to show that action of the official respondent was in violation to the statutory provisions, which is the case herein. 39. The same is the position in the case of Ashok Kumar Dangi & Ors. (supra) wherein, the Government was held competent to frame the policy. It is, no doubt true that the Government can frame policy, but it can be where competence lies with them. If any policy is framed, for which no jurisdiction or authority lies with them, cannot be held to be valid. Therein, the policy framed by the Government was in conformity with the amended provisions whereas in the present matter/s, Circular issued on 06th January, 2010 by the State Government runs counter to the Regulations of 2001 apart from the Rules of 1971 and terms of advertisement. In the aforesaid background, none of the judgments cited by learned counsel for the respondents provide any assistance on the issue. 40. In the case of Himani Malhotra (supra), it is held that change of rules of the game during the selection process is not permissible. Same view has been taken by this Court in the case of Narrotam Meena & Anr. (Supra) as well as in the recent judgment of the Hon'ble Division Bench in the case of Pawan Kumar Jain & Anr. Same view has been taken by this Court in the case of Narrotam Meena & Anr. (Supra) as well as in the recent judgment of the Hon'ble Division Bench in the case of Pawan Kumar Jain & Anr. (Supra) where the issue of the eligibility to the post of Teacher Grll (Sanskrit) came up for consideration. The aforesaid judgment supports petitioners. 41. In view of the discussion made above, the Circular of the Government dated 06th January, 2010 cannot hold field, as it goes contrary of the Regulations of 2001 not only for the reason that eligibility given in the circular for the post of PTI Grill is in violation of the qualification provided in the Schedule appended to the Regulations of 2001 but jurisdiction to declare any qualification to be equivalent lies with the Council under Regulation 6 of the Regulations of 2001 and not with the State Government. 42. In the same way, after coming into effect the Regulations of 2001 and expiry of three years, any Service Rules contrary to it, cannot be given effect to in view of the Division Bench's judgment of this Court, hence, the recruitment to the post of Teacher for Physical Education has to be in conformity to the Regulations of 2001. The Schedule appended to the Regulations provides different qualification for Teacher of Physical Education at different levels, hence, recruitment has to be after taking note of the qualification provided under the Regulations of 2001 and accordingly, the select list for the two posts, namely, PTI Gr.II and PTI Gr.IIl has to be from an amongst the candidates holding required qualification as provided under the Regulations of 2001. This is in view of the fact that period of three years after notifying the Regulations of 2001, expired prior to the advertisement for recruitment. The respondents are accordingly, directed to issue a fresh select list for the post of PTI Grill from an amongst candidates holding the qualification as prescribed under the Regulations of 2001 and in any case, it cannot be in violation of the Rules of 1971. An administrative order cannot hold field contrary to statutory provisions. 43. In view of the direction above, now the only argument of learned counsel for the Intervenor/s remains for consideration. An administrative order cannot hold field contrary to statutory provisions. 43. In view of the direction above, now the only argument of learned counsel for the Intervenor/s remains for consideration. It Is urged that judgment In their writ petition was not challenged, thus attained finality to hold them eligible for the post of PTI Grill. 44. I find that In the earlier judgment of the Coordinate Bench, the Issue of eligibility of candidates possessing qualification of B.PEd. was not decided, rather it was kept open and matters have been remitted back to the Single Bench only for that reason, thus it is not correct to state that a decision on the main issue was given in favour of the intervenor/s. The aforesaid argument has no meaning when intervenor/s were there before the Division Bench and the matters have been remitted back to the Single Bench for its afresh decision on the issue as to whether candidates having qualification of B.REd. are eligible for the post of PTI Grill or not? The Division Bench therein has also taken note that if the candidates possessing qualification of B.PEd. were held to be eligible for the post of PTI Gr.III then it should have been mentioned in the advertisement itself as many eligible candidates may have not applied for the aforesaid post in absence of advertisement to that effect, thus action of the respondents to take a decision at a later stage to hold candidates possessing the qualification of B.P.Ed. to be eligible for the post of PTI Grill becomes discriminatory in nature. 45. In the aforesaid background, all the writ petitions are allowed with the direction to the respondents to issue fresh select list for the post of PTI Grill as the Single Bench only for that reason, thus it is not correct to state that a decision on the main issue was given in favor of the intervenor/s. The aforesaid argument has no meaning when intervenor/s were there before the Division Bench and the matters have been remitted back to the Single Bench for its afresh decision on the issue as to whether candidates having qualification of B.P.Ed. are eligible for the post of PTI Grill or not? The Division Bench therein has also taken note that if the candidates possessing qualification of B.P.Ed. are eligible for the post of PTI Grill or not? The Division Bench therein has also taken note that if the candidates possessing qualification of B.P.Ed. were held to be eligible for the post of PTI Grill then it should have been mentioned in the advertisement itself as many eligible candidates may have not applied for the aforesaid post in absence of advertisement to that effect, thus action of the respondents to take a decision at a later stage to hold candidates possessing the qualification of B.P.Ed. to be eligible for the post of PTI Gr.IIl becomes discriminatory in nature. 46. In the aforesaid background, all the writ petitions are allowed with the direction to the respondents to issue fresh select list for the post of PTI Grill as directed above. So far the post of PTI Gr.II is concerned, in the earlier judgment, a direction was given to eliminate those candidates, who had not applied for the post, yet included in the select list. The aforesaid direction of the earlier judgment in these cases is maintained as not opposed by any contesting party. 47. Before parting with this judgment, it is necessary to note that even after coming into effect of Regulations of 2001 and mandate to modify the recruitment rules, the State Government is sitting tight over the matter, that too, when advised by the learned Additional Advocate General. Even, a direction to amend the recruitment rules was given by the Division Bench of this Court In the case of Kallash Chandra Harijan (supra), though for the post of Teacher Gr.Ill but was after noticing the effect of the Regulations of 2001, thus Inaction of the Government to give effect to the Regulations of 2001 Is nothing but serious failure on their part and has given rise to the present litigation. The State Government is now expected to modify the recruitment rules to make it in conformity to the Regulations of 2001 and at the same time, they will start course of C.P.Ed. with the duration of two years as mentioned in the Regulations of 2001. 48. Since considerable period has already passed after notification of Regulations of 2001, required exercise, as directed, would be undertaken by the respondents at the earliest.All writ petition allowed as per directions. *******