THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE C. V. RAMULU WP Nos. 12799 of 2007, 12800 of 2007, 12898 of 2007, 12899 of 2007, 12900 of 2007 and 23176 of 2007 Common Order: ( Per Sri GM, J ) The St at e has ﬁled Writ Pet it ion Nos.12799 of 2007, 12800 of 2007, 12898 of 2007, 12899 of 2007 and 12900 of 2007 challenging t he common order dat ed 22-12-2006 passed in O.A.Nos.3560 of 2006, 254 of 2006, 3951 of 2006, 5271 of 2006 and 5616 of 2007 respect ively, by t he Andhra Pradesh Administ rat ive Tribunal, Hyderabad ( for short “ t he Tribunal”). Writ Pet it ion No.23176 of 2007 has been ﬁled by B.Ed., qualiﬁed st udent s challenging t he order passed by t he Tribunal in O.A.No.3560 of 2006 dat ed 22-12-2006. Since t he issues involved in t hese writ pet it ions are int erconnect ed, at t he request made by t he learned counsel for bot h t he part ies, t he Writ Pet it ions were clubbed, heard t oget her and are being disposed of by t his common order. For t he sake of convenience, t he fact s in Writ Pet it ion No.12799 of 2007 are advert ed t o. The Schools are normally being run by bot h t he Government as well as local bodies t o impart educat ion t o t he School going children. Vide Act 27/2005, t he t eacher post s in t he Government and local bodies were abolished by reconst it ut ing/rest ruct uring a new service called “A.P. School Educat ion Subordinat e Service.” Under t he said Act , various rules were framed and t he relevant rules, insofar as present case is concerned, were issued under G.O.Ms.No.96, dat ed 25- 7-2005, A.P. School Educat ion Subordinat e Service Rules. The post of Secondary Grade Teacher falls under Cat egory-I of Clause-III under t he said Rules. Rule 5 of t he Rules deal wit h qualiﬁcat ions required by t he incumbent s t o hold various t eacher post s referred in t he Rules. Insofar as Secondary Grade Teacher post is concerned, qualificat ions for direct recruit ment are as follows : “ Must possess Intermediate Certiﬁcate issued by the Board of Intermediate Education, Andhra Pradesh and D.Ed., Certiﬁcate issued by the Director of Government Examinations, Andhra Pradesh OR Must possess a Bachelor Degree and B.Ed., Degree/D.Ed. ” The 2nd pet it ioner-t he Commissioner and Direct or of School Educat ion, Hyderabad issued not iﬁcat ion dat ed 29-5-2006 calling for applicat ions t o ﬁll up various t eacher post s including t he Secondary Grade Teacher. The persons who are qualiﬁed t o hold t he post as enumerat ed in t he Rules and Not iﬁcat ion, have applied for t he post of Secondary Grade Teacher and t hat bot h B. Ed., and D.Ed., cert ificat e holders have applied for t he said post s. In t he meanwhile, t he unoﬃcial respondent s herein, (hereinaft er referred t o as t he Original Applicant s) ﬁled O.A.No.3560 of 2006 and bat ch wit h t he following prayer. “ It is therefore prayed that this Hon’ble Tribunal may be pleased to struck down to the extent and insofar as prescribing Bachelor of Education (B.Ed.,) is also eligible to hold the post of SGT (Category 1 of III) in G.O.Ms.No.96, Education ( Ser.II) Department, dated 25-7- 2005 by declaring the same as illegal contrary to the item. III of First Schedule for National Council for Teacher Education (Determination of minimum qualiﬁcation for recruitment of teachers in schools) Regulation, 201 and amended in 2003 and 2005 (framed in exercise of power under the NCTE Act, 1993) and repugnant to the Central Legislation, apart from contrary to the judgment of the Supreme Court of India in Civil Appeal No.7119/2003 and consequently direct the respondents to make the recruitment/selections if any strictly in accordance with the NCTE Act and Regulations made there-under and pass such other or further orders as the Tribunal may deems ﬁt and proper.” The case of t he Original Applicant s is t hat prescribing B.Ed., qualiﬁcat ion for t he post of Secondary Grade Teacher and allowing B.Ed., Cert iﬁcat e holders t o part icipat e in t he select ion process for t he post of Secondary Grade Teacher is illegal, cont rary t o t he qualiﬁcat ion prescribed by t he Nat ional Council for Teacher Educat ion (NCTE) t hrough NCTE (Det erminat ion of minimum qualiﬁcat ion for recruit ment of t eachers in Schools ) Regulat ions 2000. It is cont ended by t he Original Applicant s t hat ﬁxing B.Ed., qualiﬁcat ion for t he post of Secondary Grade Teacher is cont rary t o t he various judgment s of t he Supreme Court . The Tribunal considering t he scope of NCTE Act and t he rules framed by t he Government under G.O.Ms.No.96, dat ed 25-7-2005 held t hat t he St at e lacks t he legislat ive compet ence t o frame a recruit ment policy or t o frame cert ain rule governing t he recruit ment which cont ravenes a validly made Cent ral Regulat ion and t herefore t he St at e has no power t o prescribe an alt ernat ive qualiﬁcat ion as suﬃcient qualiﬁcat ion, t o t eachers expect ed t o t each classes I t o V. It was also held by t he Tribunal t hat t he St at e cannot deviat e from t he st ipulat ions of t he Cent ral Regulat ions while conduct ing recruit ment of t eachers. Furt her, it was also held by t he Tribunal, t hat prescribing qualiﬁcat ion of B.Ed., for t he t eachers for classes VI t o X is permissible, however, found fault wit h recruit ing B.Ed., degree holders for t eaching Classes I t o V on t he ground t hat D.Ed., cert iﬁcat e holders alone are eligible t o t each classes I t o V. On t he above aspect of t he mat t er, t he Tribunal however, gave t he following direct ions in t he above bat ch of O.As. “ I) the respondent authorities shall work out the number of vacancies which are apportionable to the Primary School sections ( Class I to Class V ) based on the standards of norms and yardstick of teacher – pupil ratio. ii) Only those individuals who possess D.Ed., qualiﬁcation should be appointed against the posts to be identiﬁed in terms of the direction ( 1) above. iii) the State Government would be at liberty to utilize the services of the B.Ed., holders or D.Ed., holders against such of those vacancies/ posts as are apportionable to Upper Primary section in High Schools and Upper Primary Schools, namely, Classes VI and VII, based on merit ranking in selections, as well as Rules of Reservation. iv) For the purpose of determining the strength of teachers required in Upper Primary Schools, the number of teachers required for teaching Classes 1 to V and Classes VI and VII shall be reckoned separately. It would mean that if (12 ) teachers are required for teaching children in Classes I to VII in Upper Primary Schools, then it should be further demarcated based on the standard of teacher pupil ratio and apportioned between the requirement of Classes I to V on the one hand Classes VI and VII on the other. For instance, it may be that ( 8 ) teachers would be required for teaching classes I to V and ( 4) teachers for teaching Classes VI and VII, in such cases the recruitment of teachers with D.Ed., qualiﬁcation alone should be done in respect of ( 8) posts of the Primary section while individuals with other D.Ed., or B.Ed., can be recruited against the posts demarcated for Classes VI and VII.” By virtue of the judgment of the Tribunal, according to the petitioner- authorities, they were directed to bifurcate the posts of SGT into two types, one meant for classes I to V and other one for Classes VI to X. After the said exercise the B.Ed., certiﬁcate holders have to be accommodated only for the posts to teach Classes VI and VII and D.Ed., qualiﬁed candidates can be accommodated both for the posts mean to teach classes I to V or Classes VI and VII, which would amount to creating two cadres when the rules contemplate only one cadre i.e. SGT meant to teach Classes 1 to VII. Hence, the above batch of Writ Petitions were filed by the State. Sri J. Sudheer, learned Special Government Pleader appearing for t he St at e cont ends t hat t he syllabus of B.Ed., and D. Ed., are almost ident ical and t hat B.Ed., cert iﬁcat e holders are also equally eligible and compet ent t o t each t he st udent s for Class I t o V. It is furt her cont ended by t he learned Special Government Pleader t hat t he discret ion is left wit h t he employer t o ﬁx t he qualiﬁcat ion for Secondary Grade Teacher post , and t hat t he Tribunal erred in holding t hat t he Nat ional Council for Teacher Educat ion (Det erminat ion of Minimum Qualiﬁcat ions for Recruit ment of Teachers in Schools ) Regulat ions, 2001, ( herein aft er called “Cent ral Regulat ion”), having binding nat ure on t he St at e Government in t he mat t er of ﬁxat ion of qualiﬁcat ions for t eachers in formal schools and t hat t he rules, made in G.O.Ms.No.96, dat ed 25-7-2005 were issued vide Act 27 of 2005, ( hereinaft er referred t o as “t he St at e Act ” ) have t o give way as being repugnant t o t he Cent ral Act and t he regulat ions made t herein. Assuming t hat NCTE Regulat ions are applicable t o t he formal schools also, it is cont ended, t he said Regulat ions t hough prescribed only D.Ed., prescribing B.Ed., qualiﬁcat ion which is higher t han D.Ed., qualiﬁcat ion cannot be found fault wit h. It is furt her cont ended by t he learned Special Government Pleader t hat t he Nat ional Council for Teacher Educat ion Act , 1993 ( herein aft er referred t o as NCTE Act ), was enact ed by t he Parliament dealing wit h schools/inst it ut ions of t eacher educat ion but not formal schools. Placing reliance on t he judgment of t he Supreme Court report ed in BASIC EDUCATION BOARD. U.P. v. UPENDRA RAI ( (1) 2008 (3) Supreme Court Cases 432), it was cont ended by t he learned Special Government Pleader t hat t he Tribunal erred in reject ing t he cont ent ion of t he Government t hat t he Cent ral Regulat ions framed by NCTE purport edly made under clause (d) (i) of Sub-sect ion 2 of Sect ion 32 read wit h sect ion 12(d) of t he NCTE Act , 1993 are not applicable or ext ended t o formal school. On t he ot her hand, Sri D. Prakash Reddy, learned Senior Counsel appearing on behalf of t he Original Applicant s ( D.Ed., cert iﬁcat e holders ) would cont end t hat when t here is conﬂict bet ween t he Cent ral Act and t he St at e Act , t he Cent ral Act will prevail. It is furt her cont ended by t he learned Senior Counsel t hat NCTE Act is referable t o Ent ry 25 of List II ( Concurrent List ) of Schedule VII of t he Const it ut ion of India, and t hat t he word “School” was omit t ed by t he Supreme Court while considering t he scope of NCTE Act in it s judgment report ed in UPENDRA RAI ‘s case ( 1 supra ) and t herefore t he said judgment is not binding on t he present fact s and circumst ances of t he case. Placing reliance on sect ion 12(d) of t he NCTE Act , learned senior counsel cont ends t hat t he law made by t he Cent ral Government should prevail as no consent of t he President was obt ained t o t he St at e Act , and t herefore, any illegalit y cannot be perpet uat ed st at ing t hat B.Ed., candidat es are also eligible t o writ e Secondary Grade Teachers Examinat ion as t he syllabus for B.Ed., candidat es and D.Ed., candidat es is not t he same. Sri M. Surender Rao, learned counsel appearing for t he writ pet it ioners cont end t hat since ent ire Act 27 of 2005 has been st ruck down in it s ent iret y by t he Division Bench of t his Court in GOVERNMENT OF ANDHRA PRADESH v. P. VEMA REDDY ( (2) 2007(3) ALT 287 (DB) ), t he rules issued in G.O.Ms.No.96, dat ed 25-7- 2005 by virt ue of Act 27 of 2005 do not survive, and consequent ly, t he Writ Pet it ions and t he O.As., ﬁled by t he Original Applicant s becomes infruct uous as t he St at e cannot be allowed t o perpet uat e t he illegalit y. Learned counsel for t he respondent s, in support of t heir cont ent ions, have relied on t he decisions report ed in P.M. LATHA V. STATE OF KERALA (3) 2003 (3) SCC 541), YOGESH KUMAR AND OTHERS v. GOVERNMENT OF NTC, NEW DELHI ( (4) 2003 (3) SCC 548), DILIP KUMAR GHOSH AND OTHERS v. CHAIRMAN AND OTHERS ( (5) 2005 (1) Decisions Today (SC) 1027), R. SAI BABU AND OTHERS v. BSNL, NEW DELHI (6) 2007 (1) ALD 744 ), M. KESHAVULU V. STATE OF A.P., ( (7) 2003 (6) ALD 522). In P.M. LATHA’s case ( 3 supra) qualiﬁcat ion prescribed for t he post in t he advert isement published in gazet t e not iﬁcat ion was “pass in Training Teachers’ Cert iﬁcat e (TTC), but inst ead of select ing TTC candidat es, t hose holding B.Ed., degree were select ed on t he basis t hat B.Ed., is a higher qualiﬁcat ion t han TTC. In t hose circumst ances, it was held by t he Apex Court t hat ﬁxat ion of qualiﬁcat ion for a part icular post is a mat t er of recruit ment policy and t hat in t erms of t he advert isement , B.Ed. cert iﬁcat e holders are not eligible for select ion t o t he post s lower primary/upper primary t eachers. In YOGESH KUMAR’s case also ( 4 supra), it was held by t he Apex Court t hat as TTC was prescribed in t he advert isement as essent ial qualiﬁcat ion for t he post of Assist ant Teachers in primary schools, candidat es holding B.Ed., degree cannot be considered for t he said post s. It was also held by t he Apex Court t hat while B.Ed., qualiﬁcat ion is required for t eaching st udent s of higher classes, TTC qualiﬁcat ion is required for t eaching small children at primary level. The same view was also reit erat ed in DILIP KUMAR’s case ( 5 supra ) by t he Apex Court . Having heard t he learned counsel on eit her sides, t he issue t hat arises for considerat ion in t hese bat ch of writ pet it ions is as t o whet her D.Ed., cert iﬁcat e holders alone are eligible t o be appoint ed as Secondary Grade Teachers t o t each primary classes and whet her t he B.Ed., cert iﬁcat e holders are also eligible t o be appoint ed as Secondary Grade Teachers t o t each primary classes, apart from classes VI t o X ? As st at ed above, t he post of Secondary Grade Teachers falls under Cat egory I of Clause II of A.P. School Educat ion Subordinat e Service Rules, t he qualiﬁcat ions required for appoint ment of Secondary Grade Teacher post , while t he rules were in force, are t hat t he candidat e must possess int ermediat e cert iﬁcat e issued by t he Board of Int ermediat e Educat ion, Andhra Pradesh and D.Ed cert iﬁcat e issued by t he Direct or of Government Examinat ions, Andhra Pradesh, or he must possess a Bachelor Degree and a B.Ed Degree/D.Ed. Fixat ion of qualiﬁcat ion for a part icular post is a mat er recruit ment policy of t he Government . In ot her words t he issue as t o whet her for a part icular post , t he source of recruit ment should be from t he candidat es wit h D.Ed., qualiﬁcat ion or B.Ed., qualiﬁcat ion, is a mat t er of recruit ment policy and t he same is at t he discret ion of t he recruit ing aut horit y concerned, t he Court s should exercise judicial rest rain not t o int erfere wit h it . Obviously, while t he Act 27 of 2005 was surviving at t he relevant point of t ime when not iﬁcat ion dat ed 29-5-2006 was issued by t he aut horit ies for ﬁling up t he post s of Secondary Grade Teachers; and t he Rules and t he consequent ial not iﬁcat ion cont emplat e t hat B.Ed., cert iﬁcat e holders and D.Ed., cert iﬁcat e holders are eligible t o hold t he post of Secondary Grade Teacher, and t hat bot h t ypes of candidat es have applied for t he said post . The main cont ent ion of t he original applicant s is t hat as per t he qualiﬁcat ion prescribed by t he NCTE Act , which is t he Cent ral Act , t he St at e lacks legislat ive compet ence t o prescribe t he requisit e qualiﬁcat ion which cont ravenes t he Cent ral regulat ion, more so sect ion 12(d) of t he NCTE Act t o permit t he B.Ed., qualiﬁed persons also t o writ e SGT examinat ion. This aspect of t he mat t er is no more res intergra in view of t he aut horit at ive pronouncement of t he Supreme Court in UPENDRA RAI’s case ( 1 supra). The Supreme Court considering t he ent ire provisions of t he NCTE Act , including sect ion 12(d), cat egorically held t hat NCTE Act was made t o regulat e t he t eachers’ t raining syst em and t he t eachers’ t raining inst it ut e in t he count ry and it has not hing t o do wit h t he ordinary educat ional inst it ut ions and t hat qualiﬁcat ion for appoint ment as t eacher in t he ordinary educat ional inst it ut ions like t he primary school, cannot be prescribed under t he NCTE Act , and t he essent ial qualiﬁcat ions are prescribed by t he local Act s and Rules in each St at e. The relevant port ion of t he judgment in UPENDRA RAI’s case ( 1 supra), reads as follows : “ The National Council for Teacher Education Act, 1993 was made to regulate teachers’ training system and the teachers’ training institutes in the country. It may be mentioned that there are two types of educational institutions – ( 1 ) ordinary educational institutions like primary schools, high schools, intermediate colleges and universities, and ( 2) teachers’ training institutes. The NCTE Act only deals with the second category of institutions viz., teachers’ training institutes. It has nothing to do with the ordinary educational institutions. Hence, the qualification for appointment as teacher in the ordinary educational institutions like the primary school, cannot be prescribed under the NCTE Act, and the essential qualiﬁcations are prescribed by the local Act and the Rules in each State. In U.P. the essential qualiﬁcation for appointment as a primary school teacher in a junior basic school is prescribed by Rule 8 of the U.P. Basic Education ( Teachers ) Service Rules, 1981 which have been framed under the U.P. Basic Educational Act, 1972. A person who does not have the qualiﬁcation mentioned in Rule 8 of the aforesaid Rules cannot validly be appointed as an Assistant Master or Assistant Mistress in a junior basic school. The Apex Court further categorically held as follows : “ It may be mentioned that the word “institution” is deﬁned in Section 2(e) of the NCTE Act to mean an institution which oﬀers courses or training in teachers’ education. Thus, the NCTE Act does not deal with the ordinary educational institutions like primary schools, high schools, intermediate college or university. The word “ institution” as deﬁned in Section 2(e) only means teachers’ training institutes and not the ordinary educational institutions. Hence, it is only the teachers’ training institutions which have to seek grant of recognition or continuation of recognition from the Regional Committee. The ordinary educational institutions do not have to seek any such recognition or continuation under the NCTE Act. In fact, the NCTE Act does not relate to the ordinary educational institutions at all. We, therefore, fail to understand how it can be said that the NCTE Act overrides the U.P. Basic Education Act and the Rules made thereunder. In fact, the two Acts operate in altogether two diﬀerent ﬁelds. The NCTE Act deals with the teachers’ training institutions while the U.P. Basic Education Act deals with the ordinary primary schools in U.P. and not any teachers’ training institute. The argument of the learned counsel for the respondent is thus wholly misconceived.” The Supreme Court in t he above decision cat egorically held t hat NCTE Act does not relat e t o t he ordinary educat ional inst it ut ions at all. Following said t he judgment of t he Apex Court in UPENDRA RAI’s case ( 1 supra ), we are of t he view t hat t he judgment of t he Tribunal is un-sust ainable and is liable t o be set aside insofar as holding t hat NCTE Act has binding nat ure on t he St at e Government in t he mat t er of ﬁxat ion of qualiﬁcat ions for t eachers in formal schools. In t he circumst ances, we ﬁnd force in t he cont ent ions of t he Government t hat t he Cent ral Regulat ions framed by NCTE purport edly made under clause (d) (i) of Sub-sect ion 2 of Sect ion 32 read wit h sect ion 12(d) of t he NCTE Act , 1993 are not applicable or ext ended t o formal school, and t hat it is t he discret ion of recruit ing agency t o prescribe t he necessary qualificat ion for t he SGT post s. Accordingly, t he impugned judgment s challenged in Writ Pet it ion No.12799 of 2007 and bat ch are liable t o