JUDGMENT : BIREN VAISHNAV, J. 1. Leave to amend. 2. RULE returnable forthwith. Mr. Kurven Desai learned AGP waives service of notice of Rule on behalf of the respondent/State. 3. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing. 4. The present petition is filed under Article 226 of the Constitution of India to hold and direct the respondents that the petitioner is entitled to regularization upto 5% in the qualifying remarks as a physically handicapped candidate in recruitment to the post of Vidhya Sahayak/Primary Teachers for Standards 6 to 8. 5. Facts in brief would indicate that the petitioner pursuant to an advertisement dated 26.01.2022 for the post of Vidhya Sahayaks in Standards 6 to 8 applied for language teacher in the Gujarati Medium. 237 posts were notified. The petitioner possesses B.A. with Gujarati as the principal subject with 48.55%, B.Ed. (Spl.) with 72.94% and has also passed his teachers eligibility test with 57.33% marks. The petitioner has undergone B.Ed. (Special Education) Course recognized by the Rehabilitation Council of India. 6. As per the advertisement, the requirement for normal candidates was B.A. with 45% and B.Ed. Whereas, for the candidates possessing B.Ed. (Special Education) like the petitioner, the requirement in B.A. was 50%. This stipulation of providing a minimum of 50% rather than 45% is challenged by the petitioner on the ground that this is contrary to the NCTE Regulations notified on 23.08.2010 and so amended on 29.07.2011. 7. Mr. K.B. Pujara learned advocate for the petitioner would submit that the NCTE Regulations especially the amendment which provides for reservation indicates that a relaxation upto 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories such as SC/ST/OBC/PH. He would therefore submit that a stipulation of 50% for candidate who has undergone a B.Ed. in Special Education is onerous for a physically challenged candidate as compared to a lesser stipulation of 45% for a candidate with B.A. and B.Ed. The stipulation cannot be contrary to NCTE Regulations. 8. Mr.Kurven Desai learned AGP would submit that reading Para 3 of the amended regulation of 29.06.2011 would indicate that the relaxation of 5% qualifying marks is to be read in conjunction with it being a stipulation after appointment during the course of training. The stipulation cannot be contrary to NCTE Regulations. 8. Mr.Kurven Desai learned AGP would submit that reading Para 3 of the amended regulation of 29.06.2011 would indicate that the relaxation of 5% qualifying marks is to be read in conjunction with it being a stipulation after appointment during the course of training. He would also submit that the advertisement indicates that the procedure has to be in consonance with the State policy of 27.04.2011 which provides a minimum of 50% of marks for B.A. and B.Sc. who has undergone a B.Ed. Special Education Course. Even as per the handbook of the Rehabilitation Council of India of 15.05.2015, the minimum passing marks is 50% which is essentially in all courses for passing in the program. 9. Considering the submissions made by the learned counsel for the respective parties and particularly in light of the fact that the petitioner has undergone a B.Ed. (Special Education) which is a stipulation/Educational Qualification only for the purposes of physically challenged candidates, if the National Council for Teachers’ Education and the Regulations thereunder which lay down the minimum qualifications for a person to be eligible for appointment as a teacher to Clause 1 to Clause 8 are read, though initially the qualifications for Clauses 6 to 8 as reflected in the advertisement do satisfy the qualifications so set out in the regulations, however, the subsequent amendment of 29.07.2011 indicates that the reservation policy provides for relaxation upto 5% in the qualifying marks for candidates belonging to reserved categories will include the physically handicapped category. The relevant portion of the amended qualification reads as under: (III) For Para 3 of the Principal Notification the following shall be substituted, namely: (i) Training to be undergone - A person: (a) with Graduation with at least 50% marks and B.Ed. Qualification or with at least 45% marks and 1-year Bachelor in Education (B.Ed.) in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard shall also be eligible for appointment to class I to V up to 1st January, 2012, provided he/she undergoes, after appointment, an NCTE recognized 6-month Special Programme in Elementary Education. (b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment an NCTE recognized 6 month Special Programme in Elementary Education. (b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment an NCTE recognized 6 month Special Programme in Elementary Education. (ii) Reservation Policy: Relaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories such as SC/ST/OBC/PH. 10. At first blush, it may appear that Clause-II with the title Reservation Policy would form part of the amended Para 3 of the notification dealing with the training program. When read the same as a whole, the purpose of relaxation in qualifying marks, cannot be something that can be applied for appointment but at the threshold for consideration of the qualifications at the time of appointment and therefore the same cannot be read to be a part of a relaxation in qualifying the marks for the purposes of training. Even otherwise, the policy of 27.04.2011 cannot override a statutory rule framed under Section 23 of the Right of Children to Free and Compulsory Education Act, 2009. 11. For the aforesaid reasons, the petition is allowed. Based on the relaxation of 5% in the qualifying marks as the physically handicapped candidate for the post of Vidhya Sahayak for Standards 6 to 8, for which, the petitioner applied with 48.55% marks in the Bachelors degree of B.A. the petitioner possesses higher than minimum stipulated qualification of 45% and is entitled to be appointed to the post in question. 12. The respondents are therefore directed to appoint the petitioner on the post in question as per the merit based on the reasoning mentioned herein above with all consequential benefits within a period of 10 weeks from the date of receipt of copy of this order. 13. The petition is allowed. Rule is made absolute. Direct service is permitted.