( 1 ) THE petitioners challenged the action of the Government in not granting them either the grade of trained teachers or five advance increments recommended by Desai Pay Commission. The main challenge of the petitioners is that the action of the Government is violative of Articles 14 and 16 of the Constitution in as much as they have been discriminately treated with Primary teachers holding Primary Teaching Certificate though the petitioners are better qualified and competent to teach even in P. T. C. colleges.

( 2 ) PETITIONERS No. 1 2 3 and 5 are primary school teachers. All of them are holding the qualifications of Bachelor of Arts (B. A.) and Bachelor of Education (B. Ed. ). Petitioners No. 1 and 2 had passed B. Ed. examination before January 1976 and petitioners No. 3 and 5 had passed B. Ed. examination after January 1976 to be precise in March 1976 Petitioner No. 4 is the Gujarat Rajya Prathamik Shikshak Parishad which is a representative body of the Primary School Teachers having membership of more than 2000 teachers. According to the petitioners there are about 700 primary teachers who have passed B. Ed. examination prior to January 1976 and there are about 125 to 150 primary teachers who have passed B. Ed. examination after January 1976

( 3 ) THE qualification for trained primary teachers as prescribed by the Recruitment Rules of 1987 is Primary Teaching Certificate Examination (PTC ). The petitioners are not only graduates in Arts Science or Commerce as the case may be but they have passed B. Ed. examination which is considered very high in teaching profession. They are qualified not only to teach in Secondary and Higher Secondary schools but to teach in P. T. C. colleges also. The petitioners therefore say that those who can teach and train P. T. C. students are excluded from being qualified to be regarded as primary teachers. It is a well known principle of law that when one possesses a higher qualification he can not be denied the admission where a lower qualification is necessary. The petitioners say that if a teacher with B. Ed. qualification is capable of training and teaching P. T. C. students by no stretch of imagination it can be said that he is not capable of teaching primary students where Primary Teaching Certificate Examination is considered to be adequate qualification.

( 4 ) THE second limb of argument of the petitioners is that the Government has exempted teachers who have passed B. Ed. examination prior to January 1976 whereas those who have passed B. Ed. examination after January 1976 are not considered qualified for the higher grade of Rs. 290-560 meant for qualified teacher. The petitioners say that the fixation of the date of January 1976 has no rational basis and is arbitrary and creates patent discrimination between teachers who have passed the B. Ed. examination prior to January 1976 and subsequent thereto and therefore the said action of the Government is arbitrary and denies equal opportunity to the petitioners.

( 5 ) ONE Mr. M. G. Shah Section Officer Education Department has filed affidavit-in-reply on behalf of the respondent-State without producing any record. The affidavit is as vague as it can be. When there is a challenge of discrimination which is patent on the face of it it is incumbent on the State Government to give necessary documents and facts which can justify the discrimination on both the points viz. why higher education is not considered desirable for teaching primary school students and what is the rationale behind fixing 1976 and 1-1-1977 as the date for the aforesaid purpose. However para 4 of this affidavit-in-reply being relevant is reproduced below:4 With reference to para 4 of the petition I say that the Government has resolved to give exemption to those Primary Teachers who have passed B. Ed. Examination prior to January 1976 from passing Primary Teaching Certificate Examination but thereafter Government has revised its decision and has decided by its