ORDER : 1. In this petition under Article 226 of the Constitution of India, the prayers of the petitioners read as under: “10. The petitioners therefore humbly pray that YOUR LORDSHIPS BE PLEASED issue a writ of or in the nature of mandamus and/or certiorari and/or prohibition and/or any other appropriate writ, order or direction :- (a) to direct the respondents, their agents and servants to forthwith give appointments to the petitioners as per their merit as Head Teacher, Class-III pursuant to the Advertisement dated 22-1- 2017 as per Annexure-B, with all consequential benefits as if the appointments were given to the petitioners along with all other candidates of the same recruitment process; (b) to hold and declare and direct that the experience of teaching in primary schools possessed by the petitioners, as evidenced by the documents produced by the petitioners is just and proper and valid and acceptable for the present recruitment of Head Teachers, Class-III pursuant to the Advertisement dated. 22-1-2017, as per Annexure-B; (c) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to forthwith give appointment to the petitioners as per their mart as Head Teacher, Class-III pursuant to the Advertisement dated 22-1-2017 as per Annexure-B, subject to further orders that may be passed by the Hon'ble Court; (d) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to keep 7 (seven) posts vacant for the petitioners while giving any appointment as Head Teacher, Class-III in Valsad District pursuant to the Advertisement dated 22-1- 2017 as per Annexure-B;” 2. Facts in brief are as under: 2.1 Petitioners, who are Schedule Tribe candidates and who possess the requisite qualification viz. that of having passed their H.TAT examinations, pray for a writ for being considered eligible for being appointed to the post of Head Teachers. 2.2 On 22.01.2017, an advertisement was issued for 1000 vacancies of head teachers. From all these 1000 vacancies, 321 were reserved for Scheduled Tribe candidates. Of the 321 vacancies so reserved, 256 were backlogged vacancies which were carried forward. 2.3 Petitioners pursuant to such advertisement applied for being considered for appointment as head teachers. On record is a call letter dated 07.04.2017 by which the petitioners were called for district selection on 18.04.2017. 3. Of the 321 vacancies so reserved, 256 were backlogged vacancies which were carried forward. 2.3 Petitioners pursuant to such advertisement applied for being considered for appointment as head teachers. On record is a call letter dated 07.04.2017 by which the petitioners were called for district selection on 18.04.2017. 3. The question that requires consideration of this Court is whether the petitioners who were working as ‘Education Coordinators’ and were allotted to the schools through two institutions viz. ‘Maa Foundation and ‘Education First Charitable Trust’ and providing their services to be imparting education/teaching in government school can be considered to be eligible for appointment as head teachers. 4. Mr. K.B. Pujara learned advocate for the petitioners drew my attention to the Head Teacher, Class-III, in the Directorate of Primary Education District Primary Education Committees and Municipal Primary Education Committee Recruitment Rules, 2016. Rule 4, which is the relevant rule providing for eligibility for appointment by direct selection reads as under: “4. 4. Mr. K.B. Pujara learned advocate for the petitioners drew my attention to the Head Teacher, Class-III, in the Directorate of Primary Education District Primary Education Committees and Municipal Primary Education Committee Recruitment Rules, 2016. Rule 4, which is the relevant rule providing for eligibility for appointment by direct selection reads as under: “4. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall, - (a) not be more than 42 years of age; Provided that upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967; Provided further that the upper age limit may be relaxed in favour of a candidate of a Scheduled Caste, Scheduled Tribe, Socially and Educationally Backward Class and in favour of a Woman in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967; Provided also that nothing contained in clause (b) of sub-clauses (9) of rule 8 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 shall be applicable in so far as relaxation of upper age limit as prescribed above is concerned; and (b) (1) possess a Bachlor's degree in Arts or Science or Commerce obtained from any of the Universities established or incorporated by or under the Central or a State Act in India or any other educational institutions recognised as such or declared to be deemed as a University under section 3 of the University Grants Commission Act, 1956; and (i) have completed two years certificate course of Primary Teachers Course from any educational institution recognised by the Government; or (ii) possess one year degree in special education obtained from any of the Universities established or incorporated by or under the Central or a State Act in India or any other educational institutions recognised as such or declared to be deemed as a University under section 3 of the University Grants Commission Act, 1956; or by Rehabilitation Council of India or by the Central Government; or (iii) possess a Bachelor's degree in Education obtained from any of the Universities established or incorporated by or under the Central or a State Act in India or any other educational institution recognised as such or declared to be deemed as a ? University under section 3 of the University Grants Commission Act, 1956; or ; (2) have passed Higher Secondary Certificate Examination conducted by a Secondary and/or Higher Secondary Education Board or possess an equivalent qualification recognised as such by the Government and possess a four years' Bachelor's degree in Elementary Education or a four years' Bachelor's degree in Education obtained from any of the Universities established or incorporated by or under the Central or a State Act in India or any other educational institution recognised as such or declared to be deemed as a university under section 3 of the University Grants Commission Act, 1956; or (3) (i) have passed the Head Teacher Aptitute Test as may be prescribed by the Government; and (ii) Have about five years' separate or combined experience of teaching as a Teacher or Vidhya Sahayak, Shikshan Sahayak, Adhyapak Sahayak, Junior Lecturer, Senior Lecturer in Government or Grant-in-Aid or Non-Grant-in-Aid Private Lower Primary School or Higher Secondary Education School or Primary Education Adhyapan Mandir or District Institute of Education and Training (DIET); and ...” 5. Rule 4(3)(ii) provides that in order to be eligible to be appointed as Head Teacher, apart from the candidate having passed the Head Teacher Aptitude Test, should have about 5 years separate or combined experience of teaching as a teacher or Vidhya Sahayak, Shikshan Sahayak, Adhyapak Sahayak, Junior Lecturer, Senior Lecturer in Grant-in-aid or non grant-in-aid lower primary school etc. 6. In Mr.Pujara’s submission from the documents and records it is sufficiently clear that though the petitioners are “education coordinators”, they are in fact, teachers and therefore, possess the requisite experience as prescribed under the Rules and are therefore eligible for being appointed as Head Teachers. In support of his submission, the following documents are relied upon. I. At page 32 is a certificate issued by the Education First Charitable Trust which shows that the petitioners have worked as Education Coordinators from 01.11.2008 to 30.09.2014. II. An affidavit in the prescribed format submitted together with the application made for the purposes of being considered for appointment reveals that the petitioners had the requisite experience of five years and 10 months and his salaries were deposited in a bank account. III. II. An affidavit in the prescribed format submitted together with the application made for the purposes of being considered for appointment reveals that the petitioners had the requisite experience of five years and 10 months and his salaries were deposited in a bank account. III. The head teacher of Kaprada Dinbari Primary School has issued a certificate, certifying that one of the petitioners was allotted to the school by the Education First Charitable Trust and that he has performed his duties as a teacher for the period from 01.11.2008 to 30.09.2014. The certificate also indicates that in addition to undertaking teaching, he has performed his duties in co-curricular activities in the school. IV. The charitable trust also has issued a certificate of the petitioner working as an education coordinator in the government primary school for a period of over five years. V. The appointment orders/letters at pages 37 to 42 indicate that the petitioner performed his duties as an education coordinator at the disposal of the District Primary Education Committee in a designated school to help in the work including that of teaching. VI. A communication dated 18.06.2012 issued by the District Primary Education Officer, Valsad, copy marked to “Maa Foundation” and addressed to the Primary School, Valsad, would indicate that the petitioner was assigned teaching work for students of Standards-3 to 8. A list is annexed which evidently shows that the petitioner was allotted to the primary schools in the various Talukas of Valsad showing the number of students in such each of the schools. 7. At this stage Mr.Pujara also invited my attention to the candidate whose name figured in the list viz. Vijay Desai who being similarly situated as the petitioners, was appointed as a Head Teacher on the basis of his experience of working as an Education Coordinator. In support of this assertion, at pages 553, 555 and 559, the details are produced which confirmed that Vijay Desai was appointed as a Head Teacher at a school based on his experience as an education coordinator. 8. Taking this Court through the affidavit-in-rejoinder in response to the reply filed by the State, Mr.Pujara would invite my attention to the communication dated 27.02.2014 from the same line i.e. District Primary Education Officer to the 'Maa Foundation' which is earlier referred to at page 55. 8. Taking this Court through the affidavit-in-rejoinder in response to the reply filed by the State, Mr.Pujara would invite my attention to the communication dated 27.02.2014 from the same line i.e. District Primary Education Officer to the 'Maa Foundation' which is earlier referred to at page 55. At page 97 is a letter of 30.06.2016, by which, District Primary Education Officer accorded approval to the appointments of the petitioners as education coordinators. 9. In short, based on such documents, the contention of Mr.Pujara is that the education coordinators or by whatever name it is called, are in fact, teachers engaged in teaching in primary schools in the Talukas of Valsad alloted to the primary schools by the District Primary Education Officer on the basis of the needs of such schools. So the allotments are made by the District Education Officer and therefore, it is a clear case where the petitioners come within the prescribed eligibility criteria. 10. Mr.Utkarsh Sharma learned AGP submits that in the petition so filed, Rule 4(3) which prescribed the eligibility criteria is not under challenge. 11. He would further take support on this issue on the judgment of the Division Bench referred in the case of Mahasukh Nandlalbhai Dave and Ors. v. State of Gujarat and Ors. passed in Special Civil Application No.1746 of 2017 where the petition was dismissed. Such rule was not accepted and on the interpretation of such rule in the case of Block Resource Persons, the Division Bench of this Court negated the contention of the petitioners therein on the interpretation of the teaching experience of such block resources persons. The petitioners being covered by such interpretation, cannot be given the benefit of their experience in teaching for the purpose of appointment to the post of head teachers. 12. Mr.Sharma would further submit that the communication which has been relied upon by Mr.Pujara would clearly indicate that the petitioners are working as 'Education Coordinators' and on a contract of 12 months. Nothing can be read into the rule so as to interpret something which is not so prescribed. 13. 12. Mr.Sharma would further submit that the communication which has been relied upon by Mr.Pujara would clearly indicate that the petitioners are working as 'Education Coordinators' and on a contract of 12 months. Nothing can be read into the rule so as to interpret something which is not so prescribed. 13. In Mr.Sharma's submission, only a teacher, Vidhya Sahayak, Shikshan Sahayak, Adhyapak Sahayak, Junior Lecturer, Senior Lecturer in Grant-in-aid or non grant-in-aid lower primary school, can become eligible for being appointed as 'Education Coordinator' and such name as “Education Coordinator” does not find place in the rule and therefore, no such appointment can be made. 14. According to Mr.Sharma when as per the strict interpretation of the Rule, the eligibility of the petitioners itself is in doubt, the benefit cannot go in favour of the petitioners. 15. As regards the equality claimed by the petitioners in comparison to one Mr.Vijay Desai, Mr.Sharma submits that no negative parity can be claimed. He would further submit that merely an order keeping seven seats vacant, would not itself entitle the petitioners to claim benefit on the posts even if the posts are not filled. 16. Before considering the facts in case of the petitioners on hand, what is evident from reading of Rule 4(3)(ii) is that in order to be eligible for being appointed as Head Teacher, there should be five years of separate or combined experience of teaching. Such teaching experience has to be in capacity as teacher, Vidhya Sahayak etc. The question therefore is whether the petitioners satisfy the parameters of having the requisite experience of teaching as a teacher. It is in this context if the documents set out in I to IV above if considered, what is evident is that albeit the petitioners are engaged by Maa Foundation and/or the Education First Charitable Trust, the District Primary Education Officer of the District i.e. Valsad by an letter addressed to the concerned primary school allots such petitioners to the respective primary school to impart teaching to students of standards 3, standards 4 to 7 and standards 5 to 8. This is evident from such communication (at page 55 of the paper book) dated 18.06.2017. This is evident from such communication (at page 55 of the paper book) dated 18.06.2017. Based on such allotment from the certificate issued by the trust when read together with these certificates issued by the Head Teachers of the schools in which the petitioners are engaged would indicate that the petitioners have undertaken the duties of a teacher and imparted education for a period of five years and more in a primary school run by the Government at the behest and the request of the District Primary Education Officer at the concerned District Panchayat. All these communications when read in context of the nature of the work that they have carried out, would in the opinion of this Court, indicate that the requisite experience of teaching so required under Rule 4(3)(ii) of the Rules in question, is satisfied by such petitioners. 17. Coming to the decision of the Division Bench of this Court rendered in case of Mahasukh Nandlalbhai Dave and Ors. (supra) it will be relevant to reproduce certain portions of the judgment, which read as under: “[6] It is the case of the petitioners that they had initially joined the service as Assistant Teachers in private schools. Thereafter, they were appointed on the post of Block Resource Persons in Block Resource Center and since then they continued to work on the said post on contractual basis for a period of 11 months at a stretch. It is the case of the petitioners that appointment of Block Resource Persons is made subject wise and for such appointment, one of the essential requirements is passing out TET / TET (II) Examination. It is stated in the petition that though they were mainly engaged in academic activities related to primary education, their experience as Block Resource Persons is excluded in the impugned Rules and same is arbitrary and illegal. [7] One of the functions of the Block Resource Persons working at Block Resource Center is to deliver training to reorient pedagogic practices of Primary School teachers to make them more sensitive towards children and to make learning more enjoyable and interesting. [8] 2nd respondent has issued advertisement for recruitment to the post of Head Teacher Class – III and Vidhya Sahayaks in the schools administered by the respondent authorities. By the aforesaid notification / advertisement, 1000 posts are sought to be filled in, in the category of Head Teacher Class-III. [8] 2nd respondent has issued advertisement for recruitment to the post of Head Teacher Class – III and Vidhya Sahayaks in the schools administered by the respondent authorities. By the aforesaid notification / advertisement, 1000 posts are sought to be filled in, in the category of Head Teacher Class-III. Online applications are invited from 25.01.2017 to 03.02.2017. It is the say of the petitioners that as they are eligible and qualified, they applied to the post in question by way of online application form, but they were unable to process the online applications, for the reason that their experience of Block Resource Person was not considered as valid experience, for filling up the post of Head Teacher. [9] It is the case of the petitioners that functions and duties which are discharged by the petitioners are in furtherance of improving standard of teaching at the primary level under the Sarva Shiksha Abhiyan scheme. When discharge of functions and duties by the petitioners are directly related with the improvement of education at primary level, exclusion of the petitioners’ experience as Block Resource Persons and similarly situated candidates in the recruitment rules is absolutely arbitrary and illegal. [10] On behalf of 2nd respondent, affidavit in reply is filed. In the affidavit in reply, while denying various allegations made by the petitioners, the case of 2nd respondent is as under. [10.1] Impugned Rules are notified in exercise of powers conferred by section 23 of the Gujarat Primary Education Act, 1947. The petitioners have essentially, challenged Rule 4(b)(3)(ii) of the Rules, 2016 on the ground that the services rendered by the Block Resource Persons is not considered to be valid experience for recruitment to the post of Head Teachers. [10.2] Allegations of the petitioners that Block Resource Persons are engaged in activity pertaining to imparting education to the students of primary schools, is denied. Block Resource Centers are set up for academic activity related to primary education, however, Block Resource Persons are not involved in any activity of teaching in the primary schools and therefore, the petitioners are not entitled for any relief as prayed for. [10.3] The appointment of the petitioners is made under the Sarva Shiksha Abhiyan Mission by the Government of India. Under the said scheme, the petitioners are appointed purely on contract basis for 11 months, on fixed pay, as Block Resource Persons. [10.3] The appointment of the petitioners is made under the Sarva Shiksha Abhiyan Mission by the Government of India. Under the said scheme, the petitioners are appointed purely on contract basis for 11 months, on fixed pay, as Block Resource Persons. Duties and nature of work of Block Resource Persons is essentially for guidance on the subject and to carry out review periodically. For the said purpose, they are supposed to undergo training and to get feedback and follow up from the cluster to the block. Experience required under the Rules is essentially pertaining to teaching experience. As the appointments are to the post of Head Teachers and Rules are in conformity with the provisions of the Act, the candidates who have no experience of teaching are rightly not considered in the eligibility criteria notified in the Rules for recruitment to the post of Head Teachers. It is stated that essentially prescribed qualification is prerogative of the employer and therefore, challenge to the Rules is misconceived and unsustainable.” In the context of the present facts, the Division Bench on apprehension of the nature of duties of Block Resourced Persons who had approached the Court, found that the petitioners therein were not involved in the job of teaching. That will be reflected from the discussion in the judgment of Division Bench from paras 16 to 18 which read as under: “[16] The petitioners are appointed on contract basis as Block Resource Persons. It may be that the petitioners have cleared TET Examination conducted by Gujarat State Examination Board and it may be one of the conditions notified for recruitment to the post of Block Resource Persons, but passing out that examination itself cannot be equated with the experience as required in the impugned Rule. The petitioners are working as Block Resource Persons under the scheme of Sarva Shiksha Abhiyan and its aim is universalization of elementary education for the children in the age group of 6 – 14 years. It appears that said scheme is implemented by the Central Government in partnership with the State Governments through a district level decentralized management framework involving local bodies. It is also clear from the material placed on record that important goal of the scheme is to provide elementary education of satisfactory quality with emphasis on education for life and to bridge all gender and social category gaps. It is also clear from the material placed on record that important goal of the scheme is to provide elementary education of satisfactory quality with emphasis on education for life and to bridge all gender and social category gaps. May be that the scheme relate to elementary education but in the set up for implementation of the scheme, different category of employees are employed and for effective implementation of the scheme, Centers are established at Block level which are called Block Resource Centers and Cluster Resource Centers. [17] Even according to the say of the petitioners, they are not directly involved in teaching in the said scheme of any primary sections. Further perusal of the functions and duties of Block Resource Persons as notified in the Sarva Shiksha Abhiya Mission also include that they are appointed for guidance to the students and teachers in the concerned subject so that they can understand the procedures, methods, activities, techniques and applications in various subject. Further various categories which are included in the impugned Rule also clearly indicate that experience of all the categories of persons, who are shown in the impugned rule, construe as valid experience, as they are mainly involved in teaching. As recruitment to the post of Head Teachers’ job include teaching and administration in the school at primary sections, one of the eligibility criterion notified includes experience of 5 years teaching and all those persons included in the impugned rule to consider their experience as valid experience construe a different and distinct class than compare to the petitioners who are not involved in teaching. Having regard to nature of job provided to the post of Head Teacher Class – III, noninclusion of the petitioners’ experience in the impugned Rule cannot be said to be illegal and arbitrary. However, it is rightly contended by learned Assistant Government Pleader that eligibility criteria is within the domain of the employer. Unless it is demonstrated that eligibility criteria in the Rule is illegal or arbitrary, this Court is normally slow in interfering such matters which relate to academic issues. [18] As the petitioners are appointed in the Scheme on contractual basis and as admittedly they are not involved in actual teaching of students, we are of the view that no case is made out for grant of any directions as prayed for. [18] As the petitioners are appointed in the Scheme on contractual basis and as admittedly they are not involved in actual teaching of students, we are of the view that no case is made out for grant of any directions as prayed for. So far as plea of the petitioners that experience of the Coordinators in the same scheme at Block Level and Cluster Level are considered as valid experience, there is acceptable submission made by learned Assistant Government Pleader on the issue. As it is not disputed that the persons who are appointed as Coordinators are mainly teachers working in the school and they are posted as Coordinators on deputation, it cannot be said that they are not having teaching experience. Basically all the Coordinators, who are appointed on deputation, work as teachers, as such, the petitioners cannot compare their case with them so as to plea discrimination in support of their plea of infraction of Article 14 of the Constitution of India.” 18. In other words, it was an admitted case in the case of the petitioners before the Division Bench that they were Block Resource Persons who were not involved in the job of teaching and therefore the Court refused to give them the extended benefit of experience as teachers so provided in the Rule. 19. In the facts on hand, from the documents on record, it is not a matter of doubt that on request made by the District Primary Education Officer of the Panchayat to the foundation which engaged the petitioners, the petitioners were alloted to the schools. The certificates of experience, letters of the Head Teacher and that of the District Primary Education Officer indicate that the petitioners were in fact engaged in teaching the students of Classes 3, 4 to 7 and 5 to 8. 20. The benefit therefore of their experience of having worked as 'Education Coordinator' should be counted as experience for appointments as Head Teachers with the respondents. 21. Accordingly, the petition is allowed. The respondents are directed to forthwith give appointments to the petitioners as per their merit as teacher Class-III with all consequential benefits as if the appointments are given to the petitioners along with all other candidates of the same recruitment process. 21. Accordingly, the petition is allowed. The respondents are directed to forthwith give appointments to the petitioners as per their merit as teacher Class-III with all consequential benefits as if the appointments are given to the petitioners along with all other candidates of the same recruitment process. This is so because it has come on record that one Vijay Desai who was working as an Education Coordinator having experience as such, was appointed on the post of a Head Teacher. Rule is made absolute accordingly. Direct service is permitted.