C.L. Soni, J.

1. Common question posed for consideration of this Court in this group of petitions is whether after coming in to force the Right of Children to Free and Compulsory Education Act, 2009 ("the Act" for short), the Certificate in Physical Education (C.P.Ed.) could be said to have been prescribed or recognised as one of the qualifications for appointment of primary teachers? In Special Civil Application No. 7769 of 2012, Civil Application No. 13703 of 2013 is preferred for interim order to restrain the respondent authorities from making recruitment of Vidya Sahayak-Primary Teacher for Classes 1 to 5 as per news paper report dated 25-12-2013 without first holding Teachers' Eligibility Test ("T.E.T.") for C.P.Ed. candidates. In the said application, vide order dated 27-12-2013, the Court granted ad-interim order restraining the respondents from making any recruitment of Vidya Sahayak-Primary Teacher for Classes 1 to 5.

2. The State, has therefore, moved Civil Application No. 502 of 2014 praying to vacate the above said ad-interim relief granted by the Court.

3. Since, the Court finds that substantial time might be consumed in hearing and deciding the Civil Applications, the Court took up the main petitions for final disposal.

4. The petitioners claimed to have passed H.S.C. And C.P.Ed. Examination from the institutions duly recognized by the National Council for Teacher Education ("N.C.T.E."). It is their say that the State Authorities have consistently followed the policy of appointing candidates with C.P.Ed. qualification as primary teacher for the last more than 20 years along with P.T.C. candidates. It is their further say that the Government have made provision to fill 5% of the vacancies of primary teachers by C.P.Ed. candidates. It is further case of the petitioners that even after the Act, there was no change in such policy of the Government. But suddenly, the Government issued Resolution dated 3-5-2012 whereby the qualification of C.P.Ed. is deleted for appointment of primary teachers as a result of which the candidates possessing C.P.Ed. qualification are excluded from being considered for appointment to the post of primary teachers.

5. In the background of the aforesaid brief facts, the petitioners have challenged Resolution dated 3-5-2012 of the State Government whereby it deleted the qualification of C.P.Ed. which was prescribed as qualification for primary teaches along with qualification of P.T.C. in its earlier Resolution dated 27-4-2011. While challenging the above resolution, the petitioners have prayed to declare them eligible and qualified to be appointed as primary teacher and entitled to clear the T.E.T. and prayed to direct the respondents to fill up at least 5 % of the posts of primary teachers by the candidates possessing C.P.Ed. qualification at the time of making recruitment of primary teachers.

6. I have heard the learned Advocates for the parties.

7. Learned Advocate Mr. K.B. Pujara appearing for the petitioners in Special Civil Application No. 7769 of 2012 submitted that the qualification of C.P.Ed. has long been recognized for appointment of primary teachers. Mr. Pujara submitted that after the N.C.T.E. issued Notification in the year 2001 providing for qualifications for recruitment of primary teachers which included C.P.Ed. qualification, the State not only has followed the notification of N.C.T.E. for the last many years but also made provisions to fill 5% of vacancies of primary teachers with the candidates possessing C.P.Ed. qualification. Mr. Pujara submitted that even after the Act came into force, qualification of C.P.Ed. has continued to be recognised by the N.C.T.E. for primary teachers. Mr. Pujara submitted that the Schedule attached to the Act also provides for appointment of Physical Instructor which could be only from the candidates having qualification of C.P.Ed. Mr. P