ORDER :

Sanjay K. Agrawal, J.

1. By way of this petition, the petitioner seeks to challenge the constitutional validity of Schedule-III enacted under Rule 8 of the Chhattisgarh School Education Services (Educational and Administrative Cadre) Recruitment and Promotion Rules, 2019 (for short, ‘the Rules of 2019’), whereby qualification for the post of Assistant Teacher (Science/Laboratory) has been prescribed as Higher Secondary with Biology/Mathematics Subject, however, Diploma Holders have been left out to be qualified for the post of Assistant Teacher (Science/Laboratory).

2. It is the case of the writ petitioner that earlier, as per the Chhattisgarh Teacher (Panchayat) Cadre (Recruitment and Conditions of Service) Rules, 2012 (for short, ‘the Rules of 2012’) (Annexure P-3), the candidates having equivalent qualification of diploma are entitled for the post of Assistant Teacher (Science/Laboratory) and while enacting the Rules of 2019, in place of the Rules of 2012, which came into force with effect from 5-3-2019, such qualification has been omitted which violates Articles 14 & 16 of the Constitution of India and therefore the petitioner is deprived of opportunity to appear in the examination of Assistant Teacher (Science/Laboratory), as such, it is unconstitutional and invalid and it be declared ultra vires to Articles 14 & 16 of the Constitution.

3. Return has been filed on behalf of the State stating inter alia that fixing or determining the eligibility criteria for selection like subject, minimum qualification and percentage of marks and omission of post are always the prerogative of the employer and merely because any criteria does not suit any candidate, the same cannot be held to be ultra vires for the reason that it exclude some of the candidates, as such the writ petition deserves to be dismissed and also for the reason that the petitioner having participated in the selection process pursuant to the advertisement issued and his candidature having been declared rejected has later-on taking a calculative chance, chosen to challenge the constitutional validity of the rule. As such, the writ petition deserves to be dismissed.

4. Mr. Vaibhav P. Shukla, learned counsel appearing for the petitioner, would submit that omission in the present rule in Schedule-III, S.No.2 that diploma holders have been excluded from participating in the recruitment for the post of Assistant Teacher (Science/Laboratory) is per se violative of Articles 14 & 16 of the Constitution and contrary to law, and totally unconstitutional and thus, deserves to be declared ultra vires. 5. Mr. Ashish Tiwari, learned Govt. Advocate appearing for the State/respondents No.1 & 2, would support the impugned rule and submit that prescription of qualification is the prerogative of the State Government or the employer, the petitioner has no say in that and the Rule under challenge is in accordance with law, it is neither said to be violative of the constitutional provisions nor it is contrary to law and therefore it is being not convenient to the petitioner and he could not appear in the examination, the Rule is not liable to be declared ultra vires.

6. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

7. It is apparent from record that prior to coming into force of the Rules of 2019, the Rules of 2012 relating to appointment of Teacher (Panchayat) were in force. Similarly, for municipalities and Municipal Corporations, the Chhattisgarh Shikshak (Nagariya Nikay) Samvarg (Recruitment and Conditions of Service) Rules, 2013 were in force. The competent authority in its wisdom decided to repeal both the Rules and thus, framed and enacted the Rules of 2019 in exercise of powers conferred by the proviso to Article 309 of the Constitution of India with effect fro