Oral Judgment
1. Heard Mr. K.B. Pujara, learned advocate for the petitioners and Ms. Nidhi Vyas, learned AGP for the respondent - State, at length.
2. The present writ petition is filed under Article 226 of the Constitution of India, inter alia, seeking following reliefs:
"(a) to admit this petition and to allow the same;
(b) to hold and declare that Rule 4(d) of Head Teacher Class-III in the subordinate service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee Recruitment Rules, 2012 (Annexure-B) read with other relevant rules is bad in law and arbitrary and does not require five years experience after acquiring degree of B.Ed. and direct the respondents to accept and consider petitioners' eligible for the post of Head Teacher;
(c) During the pendency and/or final disposal of this petition be pleased to direct the respondents to accept the forms of the petitioners who are qualified in accordance with law and applicable rules;
(d) During the pendency and/or final disposal of this petition be pleased to direct the respondents to extend the date of Online registration i.e. 31-5-2012.
(e) During the pendency and/or final disposal of this petition be pleased, to stay the recruitment of Head Teacher by direct recruitment/selection pursuant to the Advertisement issued by the respondent dtd. 22-3-2012 as per Annexure-B;
(f) to grant any other appropriate and just relief/;s 7(g) To quash and set aside the advertisement dated 22-3- 2012 and all the consequential actions pursuant thereto as being contrary to and inconsistent with the letter and spirit of the Judgment and Order dtd. 8-5-2012 rendered by this Hon'ble Court in SCA No. 3592 of 2012 and allied matters (Coram: K.M.Thaker, J) as per Annexure-C; 7(h) To direct the Respondents to undertake the recruitment of Head Teachers for Lower Primary Schools (Std. 1 to 5) and for Upper Primary Schools (Std. 6 to 8) after laying down the minimum qualifications for them and after separately earmarking the number of Post for both the said categories;
7(i) Pending the hearing and final disposal of this petition be pleased to restrain the respondents and their agents and servants from taking any actions in furtherance of the Advertisement dtd. 22-3-2012 at ANNEXURE: B"
BRIEF FACTS:
3. Brief facts of the case as stated in the memo of the petition are as under:
3.1 It appears that the petitioners have appeared in the Head Teacher Aptitude Test which was conducted on 25.02.2012 and the result of the same was declared on 27.02.2012 and all the petitioners have successfully cleared their HTAT. The respondent No.2 issued Advertisement dated 22.03.2012 giving scheduled details and requirements as per resolution dated 18-1-2012 for online registration for appointment for the post of Head Teacher, Class III as per the merit-list on or before 31.03.2012. It is further stated that a petition being Special Civil Application No. 3960 of 2012 was filed by some of the candidates before this Hon'ble Court challenging the aforesaid advertisement dated 22.03.2012, wherein the order/judgment was passed on 08.05.2012 observing that "having regard to the facts of the case, the impugned decision and action of the authority of restricting the option to only one document / detail, cannot be sustained and has to be set aside. Hence, the said Resolution and the condition imposed by Resolution dated 29.2.2012 are declared arbitrary, unjust, unreasonable and irrational and are hereby set aside. It is, however, clarified that the respondent authority shall, after considering all relevant factors and aspects, take appropriate decision about the material or the documents which will be considered as sufficient and satisfactory proof for determining the fulfillment of condition as to requisite experience and issue fresh appropriate instructions for intimation and information to the candidates. However, until such instructions are issued and reasonable time is allowed to the teachers to make application in light of such revised instructions, any final decision and action as to the applications, received earlier shall not be taken and the posts shall not be filled-up. It is further clarified that the Court has not disapproved the decision of considering the details of salary account as evidence about fulfillment of the eligibility criteria viz. experience but what is disapproved is the decision to treat the said details as the only and solitary proof acceptable for ascertaining the compliance as to requisite qualification."
3.2 It appears that the respondent No. 1 passed the Resolution dated 16.05.2012 after considering the judgment dated 08.05.2012 passed by this Hon'ble Court. The respondent No. 2 issued Advertisement on 18.05.2012 after considering the said Resolution dated 16.05.2012, wherein the date for online registration for appointment to the post of Head Teacher, Class-III is extended for the period from 19.05.2012. It further appears that the petitioners are in no position to fulfill online registration as they do not have minimum five years' experience of imparting education after B.Ed. and it is orally told to the petitioners that one must have five years experience of imparting education after getting degree of B.Ed. and not prior thereto. In other words, experience of teaching in the schools, government or private, prior to getting degree of B.Ed. is not considered to determine eligibility and hence online registration is refused.
3.3 Nonetheless, it appears that it is nowhere mentioned in the Advertisement dated 22.03.2012 and 18.05.2012 that the petitioners would required the experience of five years' after completing B.Ed. for the post of Head Teacher. It is further stated that the petitioners are in service as a primary teachers in self- financed primary schools in the State of Gujarat since around seven years and there are 5000 posts of Head Teacher out of which 2500 posts will be filled in by way of direct recruitment were teachers teaching in the self financed primary schools are given opportunity to become Head Teacher and the remaining 2500 posts are to be filled by way of promotion and therefore that are not available to the petitioners.
3.4 It further appears that B.Ed. for primary teachers followed by Teachers Eligibility Test is made compulsory only after implementation of the Central Act of 2009. Prior thereto as per the Primary Education Act and Rules teachers with a degree of PTC were qualified to teach in the Primary Schools. Therefore, now to expect that all the teachers teaching in the private primary schools have to have experience of five years after B.Ed., is contrary to the Gujarat Primary Education Act and Rules framed thereunder in other words, B.Ed. is not compulsory to be qualified and eligible to become primary teacher in the government school or in the private primary school prior to 2009 and therefore, now to expect degree of B.Ed. compulsorily in the year 2012, when the Central Act has come into force from and after 2009, is illegal, and unlawful. Hence, the present petition.
SUBMISSIONS ON BEHALF OF PETITIONERS:
4. Mr. K.B. Pujara, learned counsel for the petitioners has submitted as follows:
4.1 The impugned action of respondent in not allowing the petitioners to apply for the post of Head Teacher (Class-III), on the premise that they are not holding the requisite working experience of five years as a teacher or Vidya Sahayak in the school, inasmuch as, such experience was not obtained after holding the degree of B.Ed., is ex-facie erroneous and contrary to Rule 4(d) of the Head Teacher, Class III, in the subordinate service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee Recruitment Rules, 2012 (hereinafter referred to as "Rules, 2012").
4.2 The Rule 4(d) of the Rules, 2012 is completely misconstrued by the respondent, whereby it has wrongly assumed that five years' teaching experience, which is stipulated in the said rule would mean that the candidate concerned must possess such working experience of five years as a teacher after holding B.Ed. degree.
4.3 The plain reading of the said rule would not indicate that such five years' experience prescribed in the rule would be considered from possessing the B.Ed. degree as claimed, rather it suggests from its plain reading that five years' experience of teaching either as a teacher or Vidya Sahayak, separately or combined as the case may be in any school, is self-sufficient to apply for the post of Head Teacher.
4.4 It is settled position of law that when the rule is silent as regards consideration of working experience after possessing the degree, the respondent cannot be allowed to add something in the rule, which is ostensibly absent.
4.5 The respondent has failed to consider that the professional experience of five years for imparting education as a teacher or Vidya Sahayak, does not in any manner, connect it with the degree qualification, inasmuch as, for imparting education as Vidya Sahayak, teacher concerned would not require to hold B.Ed. degree.
4.6 The impugned action of the respondent is arbitrary, capricious, and contrary to the rules, thereby the petitioners were wrongly deprived of applying to the post of Head Teacher pursuant to the advertisement in question. Hence, it violates the fundamental rights of the petitioners enshrined under Part III of the Constitution of India.
4.7 Making the above submissions, learned advocate for the petitioners would request this Court to allow the present writ petition.
4.8 To buttress his arguments, he would rely on the following judgments:
(i) Anil Kumar Gupta and Others vs. Municipal Corporation of Delhi and Others reported in AIR 2000 SC 659.
(ii) Subhash vs. State of Mahashtra reported in 1995 Supp (3) SCC 332.
SUBMISSIONS ON BEHALF OF RESPONDENT-STATE:-
5. Per contra, Ms. Nidhi Vyas has strenuously opposed this petition, raising the following submissions:
5.1 The respondent-State has a prerogative to decide the minimum qualification and eligibility criteria to select the candidate for the post. The Rules, 2012 was enacted by the State while exercising its power under Article 309 of the Constitution of India and, as per the Rules, 2012, the petitioners having not possessed the requisite work experience as required under Rule 4(d) of the Rules, 2012, the petitioners were not allowed to submit the form.
5.2 This Court has very limited judicial power of review to interfere in the recruitment process undertaken by the State, inasmuch as, as per the settled legal position of law, this Court cannot fix the criteria as regards age, eligibility, work experience, etc., of the candidate.
5.3 The petitioners are not right in their submission that five years' experience which is prescribed under Rule 4(d) of the Rules, 2012 would include the experience prior to possessing the B.Ed. degree by them. The advertisement in question was for the post of Head Teacher which requires more experienced person to be appointed on such post; thereby the State in its wisdom set the criteria of work experience of a teacher, who imparted education as a teacher or Vidya Sahayak, as the case may be, in the concerned school, who is supposed to have B.Ed. degree for such work experience.
5.4 The post of Head Teacher is higher in rank, which requires to have requisite experience with higher educational qualification. The State in its wisdom decided that a candidate should have at least five years' experience as a teacher or Vidhy Sahayak, as the case may be, after gaining the degree of B.Ed. The State having been considered the nature of post and duties of Head Teacher, if desire to appoint more qualified experienced person to the post, the insistence of petitioners is not justified and cannot be sustained.
5.5 The petitioners undisputedly do not have the requisite working experience as prescribed under Rule 4(d) of the Rules, 2012, inasmuch as, none of the petitioners have imparted education in the concerned school for five years after holding a B.Ed. degree as on the date of the advertisement. In that view of the matter, the respondent has correctly not allowed the petitioners to participate in the recruitment process.
5.6 The petitioners cannot be allowed to interpret the said Rule 4(d) as per their whims and fancies, and the entire thrust is without any basis. Even in earlier round also, this Court had not disturbed the said rules when its validity challenged.
5.7 The Rules, 2012, framed by the State exercising its power, set out the eligibility criteria in the rule itself, thereby all the requisite eligibility criteria required to be possessed by the petitioners to apply for the post of Head Teacher and, in the absence of meeting with all eligibility criteria by the petitioners, cannot be allowed to submit the form. Accordingly, the respondent has correctly not allowed the petitioners to submit the form.
5.8 As per the settled legal position of law, for equivalence of educational qualification for appointments to the public post, it is the prerogative of the appointing authority to determine whether the candidate possesses the required qualification or not. When the State has decided that five years' working experience referred to in said Rule 4 (d) would be after procuring B.Ed. degree, such eligibility criteria cannot be questioned by the petitioners.
5.9 It is also well settled legal position of law that it is pure discretion of the employer to set the criteria of selection including work experience with qualification for appointment to a public post and the High Court should not interfere with such discretion, as having limited judicial review in that area.
5.10 Making the above submissions, learned AGP would request this Court to dismiss the present writ petition.
5.11 To buttress her arguments, she would rely upon the following judgments:
(i) Md. Firoz Mansuri vs. State of Bihar reported in 2026 (0) AIJEL-SC 76465.
(ii) Sajid Khan vs. L. Rahmathullah reported in 2025 (0) AIJEL-SC 74782 [equivalent citation: 2025 AIR SC 1300].
(iii) Zahoor Ahmad Rather vs. Sheikh Imtiyaz Ahmad with Javid Ahmad Dar vs. Naseer Ahmad Mir reported in 2018 (0) AIJEL-SC 63168 [equivalent citation: 2019 (2) SCC 404].
(iv) P.M. Latha vs. State of Kerala reported in 2003 (0) AIJEL-SC 20361 [equivalent citation: 2003 (3) SCC 541]
6. No other or further submissions were made by the learned advocates for the respective parties.
ANALYSIS:
7. Having heard the learned advocates for the parties, and on appreciation of their submissions, one cannot dispute that the State-employer has complete discretion to frame the rules for recruitment, whereby it may fix eligibility criteria as per its own requirements. The State is also free to fix working experience with possession of requisite educational qualification by candidate. True, this Court has limited scope of judicial review to interfere in the recruitment process.
8. At the same time, it is equally true that when this Court finds that if the respondent-State has misconstrued its own recruitment rules framed by exercising its power under Article 309 of the Constitution of India; thereby it had not allowed a candidate to participate in the recruitment process, and its such decision violates the fundamental rights of a candidate; this Court is not powerless to undo such arbitrary, erroneous, and perverse decision of the State.
9. Keeping in the aforesaid aspect and law laid down by the Hon'ble Apex Court in cited decisions, I would like to analyze the submissions of the respective parties, as recorded hereinabove.
10. The controversy germane to the matter is whether the petitioners did not possess the requisite work experience, leading to their candidature not being considered for the post of Head Teacher; consequently, their application forms were not accepted by the respondent.
10.1 It is not in dispute that the petitioners did have five years or more experience as teacher or Vidya Sahayak, as the case may be, imparting education in the school concerned, but undisputedly they did not have such five years' teaching experience after acquiring the B.Ed. degree.
10.2 It is the stance of respondent-State that, as per Rule 4(d) of Rules, 2012, a candidate must possess five years' teaching experience either as teacher or Vidya Sahayak, as the case may be, after acquiring the B.Ed. degree. Due to this reason, the petitioners' forms were not accepted as they had not fulfilled such criteria.
11. So, to appreciate the controversy germane to the matter, it would be apposite to refer to Rule 4 of the Rules, 2012, which reads as follows:
"4. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall,-
(a) not be more than 35 years of age:
Provided that the upper age limit may be relaxed in favour of a candidate who belongs to the Scheduled castes, Scheduled Tribes or Socially and Educationally Backward Classes or Women 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 who is in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967.
(b) (1) possess a bachelor degree obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such by the Government or declared as deemed University under section 3 of the University Grants Commission Act, 1956; and
(i) have completed two years certificate course of Primary Teachers Course of any of the Educational Institution recognized by the Government; or
(ii) possess one year degree in special education obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such by the Government or declared as deemed University under section 3 of the University Grants Commission Act, 1956;
or
(iii) possess a degree in education obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such by the Government or declared as deemed University under section 3 of the University Grants Commission Act, 1956; or (2) have passed Higher Secondary Certificate Examination from the Secondary and Higher Secondary Education Board; and possess,-
(i) a four years bachelor degree in Elementary Education obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such by the Government or declared as deemed University under section 3 of the University Grants Commission Act, 1956; or
(ii) a four years bachelor degree in education obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other Educational Institution recognized as such by the Government or declared as deemed University under Section 3 of the University Grants Commission Act, 1956;
(c) have passed the Head Teachers Aptitude Test as may be prescribed by the government;
(d) have atleast five years separate or combined experience of teaching as a Teacher or Vidhya Sahayak in Government or Grant in Aid or Non Grant in Aid Private Lower Primary School or Upper Primary School or Secondary Education School or Higher Secondary Education School or Primary Education Adhyapan Mandir or District Institute of Education and Training ( DIET);
(e) possess the basic Knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967; and
(f) possess adequate knowledge of Gujarati or Hindi or both"
Emphasis supplied.
12. The plain reading of the aforesaid Rules would suggest that the work experience required by teacher, who is applying for the post of Head Teacher, is five years' teaching experience either as a teacher or Vidya Sahayak in the school concerned. The aforesaid rule is completely silent so far as such five years' teaching experience as a teacher or Vidya Sahayak must be after holding the degree of B.Ed. Nonetheless, it is true that as per Rule 4(b)(2), one of the eligibility criteria is holding four year bachelor's degree in elementary education or education, as the case may be, i.e., B.Ed. Nevertheless, it is nowhere indicated in the entire Rule 4 that the five years' teaching experience prescribed in Rule 4(d) would attach with the B.Ed. degree.
12.1 As per Rule 4(d), the five years' teaching experience prescribed includes separate or combined experience of teaching as a teacher or Vidya Sahayak in the school concerned. There is no dispute between the parties, rather learned AGP during the course of the argument was unable to controvert the fact that for imparting education as Vidya Sahayak, no B.Ed. degree required by Vidya Sahayak. The requisite qualification to work as Vidya Sahayak would be PTC (Primary Teachers Course), which would be a two-year certificate course of primary teachers' course. If this factor would be considered and taken into account, as Rule 4(d) includes the teaching experience as Vidya Sahayak in that five years' experience, logically, it can be gainsaid that the said work experience of five years as prescribed in Rule 4(d) of the Rules, 2012 has a direct connection with the degree qualification, i.e., B.Ed.
13. At this stage, it would be apt to refer to and rely upon the decision of the Hon'ble Apex Court in the case of Anil Kumar Gupta (supra), wherein, in a somewhat identical factual situation, it held thus:
"16. On those contentions, the points that arise for consideration are as follows:
...(2) Whether, while deciding whether the respondents had two years' experience, the experience gained while holding diplomas could also be counted in addition to the experience gained after obtaining degree? ....
20. We may point out that in the present case, the relevant provisions applicable and the notification dated 30.6.89 inviting applications refer to essential qualification as (i) Degree and (ii) 2 years' 'professional' experience. As stated earlier, experience upto 2 years is the minimum and those above 2 years, get 1/2 marks each year's experience ranging between 3 to 12 years, the maximum marks being 5 for experience. We may at the outset state that the provision regarding experience speaks only of "professional experience" for two years and does not, in any manner, connect it with the degree qualification. In our view, the case on hand is similar to Subhash Vs. State of Maharashtra (1995 Supp.(3) SCC 332) where, while considering Rule 3(e) of the relevant Recruitment Rules, namely, the Maharashtra Motor Vehicles Department (Recruitment) Rules, 1991, this Court pointed out that the rule 3(e) which required one year experience in registered Automobile Workshop did not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification.
23. The above ruling in M.B.Joshi and Others Vs. Satish Kumar Pandey reported in 1993 Supp (2) SCC 419 was followed in D.Stephen Joshph Vs. Union of India and Others reported in (1997) 4 SCC 753. In that case, this Court again distinguished N.Suresh Nathan and Another Vs. Union of India and Other reported in 1992 Supp (1) 584. This Court however cautioned that any practice which was de hors a Rule could be no justification for the department to rely upon. Such past practice must relate to the interpretation of a rule in a particular manner. This Court then followed M.B.Joshi (supra) as being one where the language of the rule was specific that "if a particular length of services in the feeder post together with educational qualification enables a candidate to be considered for promotions, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education". This decision in D.Stephen Joshph (supra) also supports the case of the respondents.
24. Therefore, on the language of the notification dated 30.6.89, we are of the view that the 2 years professional experience need not entirely be experience gained after obtaining the degree."
(emphasis supplied)
13.1 The ratio of the aforesaid decision of the Hon'ble Apex Court would clearly indicate that if the professional experience that is sought by the State- employer, as per recruitment rules, does not in any manner connect it with the degree qualification, it is unjust and unfair on the part of the State-employer to consider such work experience gained after obtaining the degree. The ratio of the aforesaid decision would be squarely applicable to the case on hand, inasmuch as Rule 4(d) of the Rules, 2012 also does not suggest that professional experience, i.e., five years' teaching experience as a teacher or Vidya Sahayak, as the case may be, must be gained after obtaining the B.Ed. degree. The entire basis upon which the respondent denied the candidature of the petitioners is a complete misreading and misinterpretation of its own rules, which resulted in a denial of right of petitioners' right to apply for the post of Head Teacher.
14. So far as the decisions, which are cited by the learned AGP are concerned, as aforesaid, there is no scintilla of doubt that this Court has limited jurisdiction to interfere with the recruitment process and has limited judicial power of review in the process of appointment. Having observed hereinabove, this Court is very much conscious of the fact that it cannot interfere with eligibility criteria set out by the State having enacted the Rules. Nonetheless, the State has failed to adhere to its Recruitment Rules by misconstruing them and insisted upon an eligibility criterion, which is not set out in the statutory rules. The impugned decision runs contrary to the recruitment rules and cannot be allowed to stand. It is well settled law that a decision which is contrary to policy or rules of State is considered arbitrary and violative of Article 14 of the Constitution. [See:- Bhika Ram & Another vs. State of Rajasthan and Others reported in 2025 INSC 1482].
15. Thus, in view of the aforesaid, none of the decisions cited by learned AGP would help the stance of the respondent-State, inasmuch as, this Court is neither interfering with the recruitment process which is undertaken by the respondent nor relaxing any educational or work experience criteria set out in the Rules, 2012; rather as observed above, the respondent has failed in its duty to adhere to the Rules, 2012 by completely misinterpreting Rule 4(d) and added something in it, which is not apparently found, i.e., five years' teaching experience gained after obtaining B.Ed. Degree. In light of the aforesaid, this Court cannot allow the State to violate the fundamental rights of the petitioners, inasmuch as refusal to allow them to submit their application forms based on a misconception resulted in denying them the opportunity to apply for public employment.
CONCLUSION:
16. In view of the foregoing observations, discussions, and reasons, I am of the view that the respondent has wrongly denied the petitioners to apply for the post of Head Teacher and, as such, it violates their fundamental right to apply for public employment, which is enshrined in Part III of the Constitution of India.
17. Having held hereinabove that the impugned action of the respondent runs contrary to the Rules, 2012 and, as such, the petitioners did possess the requisite teaching experience of five years' as teacher or Vidya Sahayak, as the case may be, as on the date of the advertisement in question, the respondent requires to consider the candidature of the petitioners as per their own merits.
18. This Court, vide its order dated 14.06.2012, directed the respondent to keep four seats vacant and any appointment which will be made will be subject to the result of this petition.
19. In view of the above, the respondent concerned is hereby directed to accept the forms of the petitioners and, if the petitioners are possessing all the other eligibility criteria as per Rules, 2012 and found eligible to be appointed to the post of Head Teachers, they shall be appointed as Head Teachers. Such exercise shall be completed by the respondent concerned on or before 31.03.2026.
20. It is made clear that in a case where the petitioners will be appointed to the post of Head Teachers, their appointment date shall be considered as the date on which the last candidate was appointed to the post of Head Teacher as per the advertisement dated 22.03.2012 in question.
20.1 Nonetheless, the petitioners are not entitled to claim any monetary benefits from such notional date of their appointment until their actual appointment; however, the notional period of their service shall be considered for the purposes of continuity of service, seniority, and retiral benefits.
21. In view of the foregoing conclusions, the present petition is partly allowed. Rule is made absolute to the aforesaid extent. No orders as to costs.
