1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Champalal Paargi & Ors. v. State of Rajasthan & Anr. S.B.CIVIL WRIT PETITION NO.2299/2007 under Article 226 of the Constitution of India. Date of Order :: 8th May, 2008 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. P.P.Choudhary, for the petitioners. Mr. A.K.Rajvanshy] Mr. B.L.Bhati ] for the respondents. .... BY THE COURT : All the 83 petitioners are possessing either Bachelors Degree in Physical Education or the certificate in Physical Education and they are eligible to be appointed as Physical Training Instructors Gr.III under the Rajasthan Education Subordinate Service Rules, 1971 (hereinafter referred to as “the Rules of 1971”). As per the petitioners the Government of Rajasthan instead of making recruitment against huge number of vacancies available is utilising the services of general teachers as Physical Training Instructors, hence this petition for writ is preferred claiming the relief as follows:- 2 “1. Respondents may kindly be directed to place before this Hon'ble Court record pertaining to vacant posts of Physical Education Teachers and number of posts against which General teachers are appointed/manned to impart physical education in various schools; 2. Respondents may also be directed not to allow General teachers to impart physical education right from Primary to Upper Primary schools; 3. Respondents may kindly be directed to fill up all the vacant posts of Physical Education Teachers Grade-III, which are lying vacant (around 13500) as also to fill up the vacant posts of Physical Education Teachers Grade-II, which are around 1000; 4. The respondents may kindly be directed to implement the order Annx.P/3 issued by the Director, Primary & Secondary Education, Rajasthan, in letter & spirit, by providing Physical Education Teacher in every Primary and Upper Primary School; 5. It may be made mandatory that physical education should be imparted by the teachers who are trained in physical education; 3 6. Respondents may further be directed not to appoint General teachers to impart physical eduction in Primary and Upper Primary schools.” It is urged on behalf of the petitioners that Physical Education institutions are available in the State of Rajasthan and these institutions are giving out hundreds of qualified Physical Education trainers every year but they are sitting idle on account of faulty policy of the State Government for not recruiting the Physical Education Teachers to impart physical education. As per the petitioners the need of physical education from the stage of grass root level during formative years of child's personality development can not be overlooked and ignored. It is urged that the importance of physical education was emphasised in the resolution on National Policy on Education, 1968 in the terms that “games and sports should be developed on a large scale with the object of improving the physical fitness and sportmanship of the average as well as of those who excel in the department. Where playing field and other facilities for developing a nation-wide programme of physical education do not exist, these should be provided on a priority basis”. 4 In the National Education Policy, 1986 the importance of sports and physical education was noticed in paras 8.20 and 8.21 as follows:- “8.20-Sports and physical education are an integral part of the learning process, and will be included in the evaluation of performance. A nation-wide infrastructure for physical education, sports and games will be built into the educational edifice. 8.21-The infrastructure will consist of playfields, equipment, coaches and teachers of physical education as part of the School Improvement Programme. Available open spaces in urban areas will be reserved for playgrounds, if necessary by legislation. Efforts will be made to establish sports institutions and hostels where specialised attention will be given to sports activities and sports-related studies, along with normal education. Appropriate encouragement will be given to those talented in sports and games. Due stress will be laid on indigenous traditional games. As a system which promotes an integrated development of the body and mind, yoga will receive special attention. Efforts will be made to introduce yoga in all schools; to this end, it will be introduced in teacher training courses.” In National Sports Policy 2001 the Central Government desired integration of sports with education in the terms as follows:- 5 “9.The integration of Sports and Physical Education with the Educational Curriculum, making it a compulsory subject of learning up to the Secondary School level and incorporating the same in the evaluation system of the student, will be actively pursued. A National Fitness Programme would be introduced in all Schools in the country, steps initiated to augment the availability of infrastructure, including play fields/ sports equipment and action taken to provide Physical Education Teachers in educational institutions through, inter-alia, the training of selected teachers in these disciplines. Specialized Sports Schools may also be set up. An appropriate inter-school and inter-College/University competition structure would be introduced at the National, State and District levels.” According to learned counsel for the petitioners all the recommendations referred above were made on basis of the opinion of experts with a view :- (1) to improve physical fitness, (2) to enforce knowledge, learn in other subject areas, such as science, maths, social studies, (3) to facilitate development of student as disciplined and responsibility for health and fitness, 6 (4) to develop skills that allow for safe, successful and satisfying participation in physical activities, (5) to give children the opportunity to set and strive for personal achievable goals, (6) to influence moral development by providing students with opportunities to assume leadership, cooperate with others and accept responsibilities for their own behaviour, and (7) to help children become more confident, assertive, independent and self-controlled, provide an outlet for releasing tension and anxiety and to help children socialised with others more successful. It is asserted that while framing the Service Rules of 1971 the need of competent Physical Training Instructors to impart physical training was recognised and, therefore, a complete cadre of Physical Training Instructors was created under the Rules aforesaid. Section “B” of the Schedule appended with the Rules of 1971 prescribes various posts in the cadre of Physical Training Instructors and the mode of appointment as well as eligibility on the posts in the cadre of physical instructors. The Government of India as well as the Government of Rajasthan since inception desired to integret physical training with education for the overall development of a student to achieve various objects including the objects referred above. 7 According to the counsel for the petitioners, as a matter of fact, no adequate physical training is imparted by general teachers and a mere formality is observed in the name of physical training, that is frustrating the objects of education policy. By emphasising importance of physical education the contention of counsel for the petitioners is that a direction should be given to the Government of Rajasthan to fill in all existing vacancies relating to the post of Physical Training Instructor. On the other hand, stand of the State Government while accepting that 1378 posts of Physical Training Instructors Gr.III are lying vacant and the Department of Education is utilising services of general teachers for Physical Training, is that making appointment or filling up the vacant posts is a policy decision and unless it is shown arbitrary the Court must not interfere with such decision of the Government. To substantiate the contention reliance is placed upon the judgments of Hon'ble Supreme Court in Union of India & Ors. v. Tejram Parashramji Bombhate [(1991)3 SCC 11]; Government of Orissa v. Haraprasad Das and others [AIR 1998 SC 375]; State of Haryana & Ors. v. Piara Singh & Ors. [(1992)4 SCC 118]; and J & K Public Service Commission & Ors. v. Dr. Narinder Mohan & Ors. [(1994)2 SCC 630]. 8 The need of physical education, particularly during schooling, is a settled academic trend. The schools are ideally placed to have the most significant impact on the physical activity and future life style decisions made by children. In words of (Late) John. F. Kennedy “physical fitness is not only one of the most important keys to a healthy body, it is the basis of dynamic and creative intellectual activity”. The physical fitness through a systematic physical education not only sharpens overall cognitive abilities and motor skills but also synchronise body and mind to achieve healthy life for harmonious and complete development. Since the era of “Macaulay's Minute On Education (1835)”, the need of physical education is emphasised by various academic corners. In the National Policy of Education, 1968 and also in the Education Policy of 1986, adequate importance is given for physical education. The Government of Rajasthan considering the need of the trained physical teachers opened number of institutions imparting training to teach physical education. Under the Rules of 1971 and also under the Rajasthan Education Service Rules, 1970 (hereinafter referred to as “the Rules of 1970”) a complete cadre of Physical Training Instructors is available. A cadre of female Physical Instructors is also prescribed under the Rules of 1970. The physical 9 education through trained Physical Training Instructors was introduced in the school curriculum by recognising that childhood is the most crucial phase in development of health and behaviour. The physical education have significant implications for students' education, exercise, adherence, health and future well being. The systematic imparting of physical education, as a matter of fact, is a national policy with a view to prepare a strong upcoming generation. The State, therefore, is under heavy obligation to execute such an important policy with all sincerity. The physical education by no means can be taken as a subject of less importance or a subject of ignorance in comparison to other class room teaching subjects. The recruitment of well trained physical teachers is also necessary as like in other subjects of science, commerce, humanities etc. The physical fitness of coming generation cannot and should not be left in the hands of untrained general teachers. The ignorance of physical fitness or step motherly attitude with physical education shall be nothing but to shirk from the responsibility to execute a national policy made in public interest. No reason is given by the State Government in its reply for not making recruitment to the posts available in the cadre of Physical Instructors. No satisfactory explanation is also given regarding expertees and efficiency of general teachers whose services are being utilised as physical teachers. The 10 general teachers who are trained to impart class room teaching, as a matter of fact are burdened with a task of imparting physical education for which they are having no training. Such untrained physical education teachers are either causing harm to the physical fitness and health of the children or are doing nothing so far as physical education is concerned. The apathy shown by the Government for physical education is certainly contrary to the accepted national policy and also against the wish of legislature that intended for suitable physical education to every school going child through the trained physical instructors. During the course of arguments, learned counsel for the petitioners stated that during the last three years more than 30,000 general teachers are recruited by the respondents but no recruitment for the post of Physical Training Instructor is made despite availability of huge number of vacancies. Instead of giving explanation for not filling in vacancies relating to the posts of Physical Training Instructors much stress is given by the respondents on the point that as a policy no recruitment to the post of Physical Training Instructor is made and such policy decision is not open for interference by this Court. In Union of India & Ors. v. Tejram Parashramji Bombhate (supra), the Apex Court, while examining validity of the directions given by the 11 Central Administrative Tribunal to take up an assessment of the needs of the school to carry on its activities and to create a sufficient number of posts, held that the Tribunal could not have issued such directions. On facts, the case aforesaid is having no application in present controversy. In State of Haryana & Ors. v. Piara Singh & Ors. (supra), the controversy was relating to regularisation of workmen working with the States of Punjab & Haryana recruited without adhering the statutory procedure prescribed. Hon'ble Supreme Court held that “creation and abolition of post and filling up the same is the prerogative of Executive and it is the Executive which lays down the conditions of service subject to the law made by the appropriate legislature. The Court comes into the picture only to ensure observance of the fundamental right, statutory provisions, rules and other instructions governing the conditions of service, the main concern of the rule in such matter is to ensure Rule of law and to see that the executive acts fairly and give a fair deal to its employees consistent with the requirements of Articles 14 and 16. The Court cannot be issue directions ignoring the aforesaid consideration as such direction may adversely affect the public exchequer and may also increase the cadre strength of a particular service of class”. 12 In the case in hand no demand is made for creation or abolition of posts, however, a direction is certainly sought for filling up the posts by alleging unreasonability on part of the executive. In J & K Public Service Commission & Ors. v. Dr. Narinder Mohan & Ors. (supra), while dealing with an argument advanced to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates for respective years, Hon'ble Supreme Court held that “it is difficult to accept the contention of Shri Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settled law that the Government need not immediately notify vacancies as soon as they arose. It is open, as early as possible, to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16”. On face, this case is of no help for the respondents, however, it certainly emphasise that 13 availability of vacancies should be notified as soon as possible. In Government of Orissa v. Haraprasad Das and others (supra), it was held that “whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary it is not open to the Tribunal to interfere with such decision of the Government and direct it to make further appointments”. No doubt that if a reasonable and rational policy decision is taken by the executive for not filling up the vacancies, then the Courts should keep their power off in interfering with such decision, but in the present case what to say about any reasonable and rational policy decision, no decision for keeping the posts of Physical Training Instructors vacant is placed on record. On the other hand, the document Anx.3 dated 1.12.1998 in quite detail narrates the decision of the Government to have physical education only through the Physical Training Instructors. The inclusion of physical education through the trained Physical Training Instructors in school education curriculum itself is in pursuant to a public policy, therefore, if any decision is taken for imparting physical education by general teachers then that itself is is irrational and in contravention of public interest. This Court, therefore, is having ample power to direct the State Government to fill up the 14 vacancies of Physical Training Instructors to satisfy and implement a public policy in its true spirit. The Court cannot permit the executive to frustrate an important national policy having implication on public at large specially to the upcoming generation. An another aspect of the matter is that as per the Rules of 1971 no person without having requisite training in teaching can be appointed as teacher in any grade and this includes the cadre of Physical Training Instructors. The general teachers are trained to teach class room subjects but not for physical education. If such untrained teachers be permitted to teach physical education then the same shall amount to recruitment of Physical Training Instructors without having requisite training and that shall be in contravention of the eligibility prescribed for such recruitment under the Rules of 1971. On this count too no general teacher without having requisite training in physical education can be permitted to work as Physical Training Instructors. For the reasons stated above, this petition for writ deserves acceptance and, therefore, the same is allowed. The respondents are directed to notify the available vacancies and initiate the process of recruitment relating to the post of Physical Training Instructors as per the Rules of 1971. The services of general teachers for imparting physical education be 15 utilised till making recruitment to the post of Physical Training Instructors. It shall also be open for the respondents to make appointments on post of Physical Training Instructors on urgent temporary basis as per the Rules of 1971 to cater the immediate need of the Physical Training Instructors. ( GOVIND MATHUR ),J. kkm/ps.