JUDGMENT : P.S. Mishra, J. - These two applications involve a common question whether services of untrained teachers appointed by the sponsors of a High School should be approved by the Secondary Education Board and accordingly taken over by the State Government or not. C.W.J.C. No. 3634 of 1983 relates to a teacher in a High School recognised by the Secondary Education Board on 15.1.1979. C.W.J.C. No. 2426 of 1983 relates to a teacher of a High School established on 1.1.1979 and before it could be affiliated/recognised by the Board, Bihar Secondary School (Taking Over of Management and Control) Ordinance, succeeded by the' Bihar Secondary School (Taking Over of Management and Control) Act, 1981 came in force. 2. One is required to travel through a jungle of the executive Instructions, circulars and ORDER :s and the successive Acts, Ordinances, Rules and Regulations Lo know the methods of recruitment and service conditions of the teachers of the High Schools which were called non-government High Schools until taken over by the State Government, by the Ordinance published on 11.8.1980. Uncertainties about the services and service conditions of the teachers of such schools still continue. Before I actually deal with the facts of the cases of the two teachers, which are heard by' us, I. propose to venture into the laws that appear to be relevant. There were no statutory provisions .to control and regulate the administration of non-government High/Higher Secondary Schools in the State of Bihar until the Bihar High Schools (Control and Regulations) Act, 1960. Although there has been a Board of Secondary Education extending recognition to the non-government High Schools, there has been circulars and ORDER :prescribing minimum standard of teaching, conditions of service of the teachers and other category of employees etc. Although there has been a Board of Secondary Education extending recognition to the non-government High Schools, there has been circulars and ORDER :prescribing minimum standard of teaching, conditions of service of the teachers and other category of employees etc. first statutory recognition to the Board, its powers and functions and the rules concerning the service conditions of the teachers came under various ,provisions of this Act, Section 8 of this Act said that the State Government could, after previous publication and subject to the provisions of Articles 29.30 and 337 of the Constitution of India make rules not inconsistent with the Act for carrying out the purposes of the Act, sub-section (2) thereof provided that until the State Government made rules the provisions contained in the Bihar" Education Code, 7th Edition, as " amended from time to tithe, and all resolutions and ORDER :s of the State Government or of the Director" of the Public Instruction, Bihar, a collection of which ORDER :s was published in the extraordinary issue of the Bihar Gazette of the 23rd March, 1959 and which Were enforced on the date of commencement of the Act, would, in so far as they were not inconsistent with the provisions of the Act and the provisions of the Constitution of India relating to Schools established and administered by Anglo Indians and minorities based on religion and language, be deemed to be the rules made under the Act. The State Government, however, exercised its statutory power to frame service condition rules of the teachers of the schools only in October, "1972 and until its publication in the Bihar Gazette on the 25th of October, 1972, the rules contained in the Bihar Education Code, 7tb Edition and published in the Extraordinary issue of the Bihar Gazette of the 23rd March, 1959 held' the field. The Act, however, was repealed by an ordinance published on 21.5.1974 which introduced substantial changes in the powers and functions of the Board, created a service commission for the teachers and made substantial changes in the mode and procedure of recruitment. After a series of successive Ordinance came the Bihar Secondary Education Board Act, 1976. Before, however, matter could establise and take shape under its provisions its repeal also came by the Bihar Non - Government High Schools Taking Over of Management and Control) Ordinance, 1980. After a series of successive Ordinance came the Bihar Secondary Education Board Act, 1976. Before, however, matter could establise and take shape under its provisions its repeal also came by the Bihar Non - Government High Schools Taking Over of Management and Control) Ordinance, 1980. This Ordinance has been succeeded by the Bihar Secondary Education Board (Taking Over the Management and Control) Act, 1981. 3. A Government ORDER :bearing No. 5172 dated 7.9.1955 which had been published in the Bihar Gazette dated 23.3.59 contained the service condition rules including the rules regarding recruitment of the teachers. Rule 2 in the said notification provided that only graduates who were trained and who possessed 5 years teaching experience, or untrained graduates of approved merit with 10 years teaching experience could be considered for appointments as Headmaster and all appointments to the teaching staff would be on probation for a year. This rule also contained: "The Headmaster shall be confirmed only when he has passed the departmental examination as laid down in article 285(5) (ii) of the Bihar Education Code. If the Headmaster is untrained, he will have to undergo a short training course for atleast' 6 weeks before confirmation and Assistant teacher shall be confirmed only when be has passed Half Yearly examination or has attended short training course in teaching for at least weeks. Graduates qualifications who have passed an examination in English of B.A. standard, may also be considered for appointment as Headmasters provided what otherwise qualify as laid down in this paragraph. Under various other rules in this notification the power to appoint was given to the Managing Committee, which was required in all cases to give due weight to the qualifications, teaching experience and efficiency of the candidates and required approval of the appointments made by the Managing Committees by the District Education Officer in the case of appointments of Headmasters and by the Sub-divisional Education Officer in the case of appointments of Assistant teachers. This notification, however, allowed the Managing committee to appoint as teachers; persons possessing lesser qualifications than graduates and training (Teachers training) was not an essential qualification. Scheme envisaged under this circular held the field until rules framed under section 8 (1) of the Bihar High School Act, 1960 known as Bihar High School (Condition of Service) Rules, 1972 were notified on 18.9.1972 and published m the Bihar. Gazette extra ordinary dated 25.10.1972. Scheme envisaged under this circular held the field until rules framed under section 8 (1) of the Bihar High School Act, 1960 known as Bihar High School (Condition of Service) Rules, 1972 were notified on 18.9.1972 and published m the Bihar. Gazette extra ordinary dated 25.10.1972. Rule 4 of the 1972 -rules for the first time prescribed in some details, the procedure of recruitment of the teachers including the Headmaster and the Assistant Headmaster of a non-government High School. Sub-rules 11, 12 and 13 of rule 4 prescribed, inter alia, that the minimum qualification for the post of the Headmaster of a non-government High School would be a trained graduate with 10 years teaching experience, that of the Assistant Headmaster would be a trained graduate with 5 years teaching experience and that of the Assistant teachers would be trained graduate except teachers of the subjects like classics, music and like specialties. 4. The 1960 Act, however, was repealed by the Bihar Secondary Education Board Ordinance. 1974, published on. 21.5.74 and successive Ordinances and finally by the Bihar Secondary Education Board Act, 1976. Chapter VI of the Ordinances and the• 1976 Act made provisions for the service conditions of the teachers and the non-teaching staff of the Secondary Schools, It contemplated establishment of a teacher's service commission and stated that appointments would be made in accordance with the provisions contained therein but nowhere provided for the minimum qualifications of the teachers. Chapter IX of the Ordinances and the Act contained provisions empowering 'the State Government to issue direction", and the Board to frame rules and regulations. The rules framed under section 8(1) of the 1960 Act, to the extent they were not inconsistent with the provisions of the Ordinance and the Act, continued, to hold the field. I shall deal with this aspect of the law more while discussing the cases in hand, but it appears obvious to me that the recruitments made until the 1972 rules came in force, were required to confirm to the provisions contained in the notification dated 7.9.1955 and after the enforcement of the 1972 rules in accordance with the provisions contained therein. Untrained teachers including persons having lesser qualifications than graduates could be appointed in the High Schools/Secondary Schools/Higher Secondary Schools so long the rules contained in the notification dated 7.9.1955 were in force. Untrained teachers including persons having lesser qualifications than graduates could be appointed in the High Schools/Secondary Schools/Higher Secondary Schools so long the rules contained in the notification dated 7.9.1955 were in force. Since the 1972 rules prescribed a minimum qualification as that of a trained graduate after 25.10.1972, that is to say the date when the 1972 rules came in force, only trained graduates could be appointed as Assistant teachers except for teaching subjects like classics, music craft etc. 5. This scheme posed a problem as to the services of the untrained teachers because there were a number of untrained teachers appointed in the non-government High Schools in never expanding secondary education in the Stale and such teachers appointed until 1972 rules came in force, were duly approved by the competent authority as validly appointed teachers by the Managing Committees of the High/Secondary Schools. Until 1972 rules were enforced, untrained teachers could aspire for, appointment as Headmasters, but 1972 rules denied eligibility' for appointment as Headmasters to such' teachers. Before, however, 1972 rules were enforced a Govt. resolution bearing no. 2/R 1-01564 E, 891 dated 24.3.1967, stated that no scale of pay for untrained teachers was fixed because the State Govt. had already decided that no untrained teacher should be appointed in High/Secondary Schools. Accordingly the then Director of Public Instructions issued a letter no. 2831 dated 26.7.1967 stating that services of untrained teachers should not be approved. After 1972 rules were enforced a circular was issued bearing no. 2 B 9-319/73 E 5360 dated 28.9.73 which said that when trained teachers were available there was no justification for appointing untrained teachers and no untrained teachers should be appointed in High Schools. It. however, said that in some schools untrained teachers had worked for some years, their scale of pay should be determined on the condition that they would not be confirmed until they would obtain training. Circular issued on 26.7.1967 by the Director of Public Instructions and the circular issued on 28.9.1973 by the State Government were in consonance with the Government's decision not to appoint untrained teachers in High/Secondary schools. Deviation, however, started with a circular issued, by the State Govt. bearing letter No. 2/V 90513/74 E 756 dated 1.2.1975, It was purportedly issued intending to clarify the Government policy about the approval of the untrained graduate teachers in High/Higher Secondary Schools until 28.9.1973. Deviation, however, started with a circular issued, by the State Govt. bearing letter No. 2/V 90513/74 E 756 dated 1.2.1975, It was purportedly issued intending to clarify the Government policy about the approval of the untrained graduate teachers in High/Higher Secondary Schools until 28.9.1973. This circular said that the services of untrained teachers appointed in recognised High/Secondary Schools until 28.9.1973 should be approved if prescribed procedure was followed in appointing them. Such teachers, however if they were not within the prescribed number of the sanctioned posts of teachers in a school could be adjusted in the vacancies in other schools. This letter reiterated that services of untrained teachers should not be approved until they become trained. A lette., however, was sent to the Government, Department of Education by the Secretary of the Board of Secondary Education on 16.4.1975 which stated that the Government had issued ORDER :on 28.7.1973 not to appoint untrained teachers but teachers having qualifications less than that of a graduate, that is to say qualified up to intermediate standard, were appointed up to 28.9.1973 because there was no prohibition On such appointments. This statement in the letter dated 1.4.1975 was made ignoring the statutory rules which were in force with effect from 25.10.1972. The Government's reply to this letter came on 23.7.1975 stating that teachers appointed up to 28.9.1973 having qualifications less than graduate would also be governed by the Government letter dated 21.2.1975. Deviation from the 1972 rules as to the minimum qualification extended up to 28.9.1973 was reiterated in a letter bearing no. H/V 90513/74/E 5291 dated 24.11.1975. In this letter the procedural requirements which were insisted upon in the letter dated 21.9.1975 were waived. A further deviation came in yet another letter bearing no. H/V 905/74-3213 dated 22.7.1976. This letter advocated the cause of teachers appointed in the High/Secondary schools recognised by the Board after 28.9.1973 but established before 28.9.1973 and said that untrained teachers appointed in a school which was granted permission of establishment by 28.9.1973 and recognised by 20.5.1974 should be approved if they were appointed in sanctioned posts and possessed qualification of a graduate and should be confirmed when they obtain training. This was followed by another Government letter bearing no. H/V 9-513/74 E 1940 dated 18.6.1977. In this letter even the services of untrained teachers appointed after 28.9.73 but before 20.5.74 were recognised. This was followed by another Government letter bearing no. H/V 9-513/74 E 1940 dated 18.6.1977. In this letter even the services of untrained teachers appointed after 28.9.73 but before 20.5.74 were recognised. It said that although such teachers had no claim yet on humanitarian consideration, their services would be approved subject to the condition that they would become trained within three years of the regularisation of their services. Following the instructions Contained in this letter the Board issued a circular on 29.6.77 to the same effect. The dead line introduced by the circular dated 18.6.1977 was transgressed in the case of two teachers appointed in High Schools in Chotanagpur and Santhal Paraganas by a letter of the Special Secretary to the Government Department of Education dated 9.1.1978, but by this letter services of a teacher who possessed I. Sc. qualification was disapproved because the same was contrary to the 1972 rules. Although statutory rules were deviated from, but there was still some attempt to close recruitment of teachers who possessed qualifications less than that of a trained graduate. A circular issued by the State Government bearing letter No. Ex/HV 9-0512/74 E 808 dated 24.2.1974, however, communicated to all concerned that there were 585 teachers who were working in the schools which were recognised after 21.5.74 and the State Government was of the view that their services should be approved on the condition that they would become trained in the year 1978. This was reiterated in yet another letter No. H/V 9-0513/74 E 2314 dated 27.7.78. This letter further indicated that the' untrained teachers approved for regularisation of their services were appointed in the schools up to 18.6.1977. 6. The Government's readiness to accommodate untrained teachers and approve the services of such teachers not- possessing the qualification prescribed under the statutory rules, had already leaped into the field in which the statute operated but it received almost complete relaxation in letter no. H/V 90513177 E 944 dated 9.4.79 of the State Government. This letter stated that the schools which were granted recognition after 15.10.1977 were required to give undertaking in writing that they would not be appointing untrained teachers but such undertakings were not taken from some schools because publication of the said circular took some time. The State Government accordingly decided that services of untrained teachers appointed in such schools should be approved like the services of other untrained teachers. The State Government accordingly decided that services of untrained teachers appointed in such schools should be approved like the services of other untrained teachers. This was followed by yet another circular no. H/90513/742365 dated 24-25.9. 1979 and circular no. H/V 9-0513-74-757 dated 2.4.1980 stating, inter alia, that the undergraduates appointed in recognised High/Secondary schools up to 21.5.74 should also be approved if they had graduated by 15.10.77 and became trained in 1980-81 session. This was reiterated in the circular of the State Government No. H/V 9-0513/74 E 1081 dated 21.5.81. 7. These are only a few of several other circulars issued before the nationalisation of the Secondary Education in the State of Bihar. Some circulars have been issued even after the take over of the non-Government High Schools. Letter No. 25550-80 dated 19.9.81 and letter no. H/V 9-513/74 E 644 dated 9.9.1982 are two such letters which, inter alia, say that the services of the untrained teachers who were working in the schools which were taken over by the State Government on 2.10.80 would be approved. One is amazed by such flagrant violation of the law. The law on the subject required that a teacher appointed in a High School should possess the minimum qualification of graduation, but undergraduates were appointed and their services were regularised. The law said, only trained teachers should be appointed, but untrained teachers were appointed and the State Government and the Board recognised their services. Law was fallowed by such deliberate violation, that nothing but expediency mattered. The State and the Board were more than ready to ignore the violations of law by the managing committees of the schools. Manner in which the Department of Education functioned prompted large number of unqualified teachers to move this Court and some times because- the respondents conceded and same times because the law .on the subject was not placed before it this Court issued directions to regularise their services. Unending stream of cases caused same concern and although school-writs ate heard by a Single Judge, these cases have been placed before a Division Bench. 8. Petitioner in C. W. J. C. No. 3634 of 1983 is a graduate. As claimed by him he graduated in the year 1972 and joined as a founder graduate teacher in English in Shri Hanuman High School. Thikhan Bhawanipur (East Champaran) .on 2.3.74. 8. Petitioner in C. W. J. C. No. 3634 of 1983 is a graduate. As claimed by him he graduated in the year 1972 and joined as a founder graduate teacher in English in Shri Hanuman High School. Thikhan Bhawanipur (East Champaran) .on 2.3.74. He was appointed in the said post by the then Managing Committee of the School. Permission far establishment of the school was granted on 25.1.74 by the erstwhile Bihar Secondary Education Board. A special Board constituted for examining whether the school fulfilled required conditions or not visited the school and in its report, contained in the letter of the District Education Officer, dated 17.5.1978, included the name of the petitioner as an Assistant teacher of the school placing him at SI. No. 10. The school was recognised by the Secondary Education Board by Board's letter No. 1251-57 dated 15.1.79. This letter, however, included the-names of the trained teachers only numbering 4, as those approved by the Board as teachers appointed in the school. Petitioner and other three untrained teachers of the school filed Title Suit No. 24 of 19/9 on 29.1.1979 in the court of Munsif at Motihari seeking a declaration that they had a right to continue on their respective posts as Assistant teachers and also praying for injunction. A temporary injunction was granted in their favour by the learned Munsif but the learned Subordinate Judge at Motihari who heard the appeal vacated the ORDER :of injunction. The petitioner and other three plaintiffs filed Civil Revision No. 1778 of 1979 in this Court but the same was dismissed on 10.3.80. In the meantime, however, the three other untrained teachers who had filed the Title Suit, became trained and the Board approved their service and absorbed them as teachers. Petitioner, however, remained untrained and his service has not been recognised by the Board. 9. Petitioner in C. W. J. No. 2426 of 1983 was appointed as an Assistant Tea -;her on 3.1.1980 in Girls High School, Hilsa which as claimed, was established on 1.1.1979 and applied for recognition to the erstwhile Bihar Secondary Education Board on 2.8.1979. In the meanwhile the Ordinance taking over the the management and the control of the school was published in the Official Gazette on 11.8.1980. The petitioner was I.A. trained having specialised training in cutting and tailoring at Industrial Training Institute, Kanpur. In the meanwhile the Ordinance taking over the the management and the control of the school was published in the Official Gazette on 11.8.1980. The petitioner was I.A. trained having specialised training in cutting and tailoring at Industrial Training Institute, Kanpur. According to her the, Managing Committee of the School appointed her as a teacher in the said speciality and confirmed as a permanent teacher with effect from 11.1.81. She has claimed that she was appointed against a sanctioned post and worked in the said capacity until she was prevented by the then Secretary of the School from working in the School. The petitioner has also alleged that the respondent no. 9 having qualification of I. A. trained and not appointed against a sanctioned post, has been retained as a teacher but the petitioner has been denied the said appointment. 10. Petitioners in both the cases have prayed for a writ in the nature of mandamus to continue them as duly appointed teachers in their respective schools and pay to them emoluments in accordance with law. Learned counsel appearing on their behalf have contended that the petitioners have been denied their right to continue as teachers and to receive salary in the said capacity in violation of the specific instructions issued in this behalf and submitted that while other teachers similarly appointed, have been acknowledged as duly appointed. teachers and continued in their respective posts even after the taking over of the management of the non government schools, the respondents have excluded them from the list of the teachers of their respective schools and denied to them equality of opportunity of appointment. 11. I have noted the Circulars and ORDER :s issued from time to time and the Acts and the Rules introduced in the field for recruitment of the teachers in non-government schools before and after the taking over of the managements of such. schools by the State Govt. Waxing and waning attitude of the respondents in the matter of appointment of the teachers in the non-government High Schools is alone responsible for the petitioner's grievances and they have done' everything to avoid any definite course and adherence to law. schools by the State Govt. Waxing and waning attitude of the respondents in the matter of appointment of the teachers in the non-government High Schools is alone responsible for the petitioner's grievances and they have done' everything to avoid any definite course and adherence to law. True, there had been no minimum qualifications prescribed for an Assistant teacher in a High School under 1955 Rules, but in the ru1cs framed under section 8 (1) of the 1960 Act published in the Official Gazette (Extraordinary) on 25th October, 1972 a minimum qualification was prescribed stating in Rule 4 (3) thereof that except in cases of specialised disciplines like music, craft, classical literature etc. minimum qualification of a teacher would be trained graduate. Neither 1960 Act nor rules framed thereunder ever gave to any person power to deviate from the rules as to the minimum qualification of the teachers. The minimum qualification prescribed under 1972 rules, therefore, could not be relaxed either by the State Government or the Board of Secondary Education. Since, however, there have been provisions made as to the appointment of Assistant Headmasters and Headmasters having minimum qualification of trained graduates in the 1972 Rules whereas such appointments could be given even to those who were not trained but simply graduates before enforcement of the 1972 Rules some provisions were required to be made for teachers working in the schools so that they could obtain requisite training and qualify themselves for prospective appointments as Assistant Headmasters and Headmasters. When such instruction came to provide to teachers working in the High schools facilities for training etc. perhaps, intentions were obvious and genuine. Attempts not to interfere with the services of the teachers already appointed before 1972 Rules came in force, were/are understandable, but in the schools formally came to exist after the enforcement of 1972 Rules, when the question of regularising services of the teachers appointed by the sponsors C'1me up before the Board of Secondary Education and State Government, they issued instructions as if only to accommodate those who were recruited by persons not legally empowered to .appoint and of those who were not qualified for such appointments. Once they started doing it those who could not obtain their favour came to the courts in a large number. Once they started doing it those who could not obtain their favour came to the courts in a large number. Some times noticing that persons similarly situ-ate were given regular appointments and invariably because the respondent-State in such cases conceded that the petitioners also were entitled to get their services regularised, this Court in a number of cases issued necessary directions. To mention only a few of such cases which were decided by this Court I may refer to JUDGMENT :s in C. W. J. C. Nos. 413 0f 1978 disposed of on 6.9.1979 by L. M. Sharma, J, 3430 of 1978 disposed of on 7.8.1979 by S. Ali Ahmad, J, 2613 of 1983 disposed of on 6.5.1983 by R. P. Sinha, J, 159 of 1981 and of 1981 disposed of by B. P. Sinha, J, on 3.9.1983 and 10.9.1983 respectively and the cases of Chandra Kumar Chakravarty Vs. The Deputy Director of School Education, Krishna Prasad Vs. the State of Bihar Yogendra Khan and others Vs. The State of Bihar and others (1979 B B C J 378, 1981 B B C J 387 : 1982 P L J R 214, 1983 B B C J 139 : 1983 P L J R 214 respectively). In all these cases the facts noticed are that the petitioners were appointed by the Management of the Schools on the post of teacher before its recognition by the Board, Circulars prevailing at the relevant time provided that their services were to be recognised if they satisfied the condition that they were appointed as teachers before the recognition and; were willing to get themselves trained and the respondents gave to other teachers similarly situate opportunity to continue as teachers subject to their obtaining necessary training/training or improving their qualifications. Unfortunately, for this Court at no time relevant rules were brought to its notice and since the respondents extended their favour to some, this Court always thought it proper to give to other complaining of discrimination at the hands of the respondents same benefits. Unfortunately, for this Court at no time relevant rules were brought to its notice and since the respondents extended their favour to some, this Court always thought it proper to give to other complaining of discrimination at the hands of the respondents same benefits. By extending helping hands to those who were recruited in violation of the rules the respondents not only perpetuated and encouraged recourse to appointments in violation of the rules but provided opportunity to those having right links to sponsor such schools, appoint their unqualified favourites and get their services regularised, leaving a number of qualified persons on the streets running from department to department and from one employment exchange to another employment exchange for getting their names registered in the list of the unemployed person. A mere glance to the contents of the Circulars and instructions would convince that a Constitutionally responsible Govt. of the State and the Board created under a legislative sanction give no thought to the rule of law and acted as if their authority accepted no discipline of law. A censor of their conduct, however, is of no help to this Court and the question raised on behalf of the petitioners have to be decided in accordance with law. I have already noted that the cases decided on the point and brought to our notice provide no guidance and perhaps now abstract ligalisim also shall give no help to this Court. It is plain and clear that the petitioners who are not trained graduates, do not possess minimum qualifications for appointment as teachers. Learned counsel appearing for the petitioner in C. W. J. C. No. 3634 of 1983 has, however, submitted that with the repeal of the 1960 Act by the Ordinance published on 21.5.1974, the rules published in the Bihar Gazette on 25.10.1972 were also repealed. No rules were framed either under the Ordinance repealing the. 1960 Act and/or its successive Ordinance and the successor Act, namely, the Bihar Secondary Education Board Act, 1976. No such law, therefore, existed which could inhibit the powers of the sponsors /managements of the schools seeking recognition from the Board of Secondary Education to make appointments of persons who were not trained graduates as teachers in the Schoos. This argument, however, in my opinion, is not acceptable. No such law, therefore, existed which could inhibit the powers of the sponsors /managements of the schools seeking recognition from the Board of Secondary Education to make appointments of persons who were not trained graduates as teachers in the Schoos. This argument, however, in my opinion, is not acceptable. A perusal of the provisions of the 1974 Ordinance repealing the 1960 Act and its successor Ordinances as also the 1976 Act will show that in regard to such matters including the service conditions of the teachers of the non-government High Schools which were/are not specifically provided under such provisions, rule making power was/is vested in the Board of Secondary Education and/or the State Government. It is well settled that a rule validly made, becomes a part of the parent Act, and survives the repeal of the Act under which it is framed, if it is not inconsistent with the provisions of the repealing Act and if such a, rule can be framed under it. Section 27 of the Bihar and Orissa General Clauses Act provides : where any enactment is repealed and re-enacted by a Bihar Act with or without modification then, unless it is otherwise expressly provided, any appointment, notification, ORDER :, scheme, rule, by law or form made or issued under the repealed enactment shall so far as it is not inconsistent with the provisions reenacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification ORDER :, scheme, rule, by-law or form made or issued under the provisions so re-enacted 1972 Rules which were framed under section 8 (1) of the 1960 Act to the extent they provided for the minimum qualification of the teachers, evidently survived the repeal by the Ordinance in the year 1974 and by the Act in the year 1976, because no rules and/or statutory provisions otherwise created, ever existed causing or creating repugnancy of any kind. Such statutory provision as to the minimum qualification of the teachers could not be altered by the executive Acts of the State. The respondents acted in gross violation of the statutory provisions as contained in the 1972 rules by issuing instructions to regularize recruitments of unqualified teachers. Such statutory provision as to the minimum qualification of the teachers could not be altered by the executive Acts of the State. The respondents acted in gross violation of the statutory provisions as contained in the 1972 rules by issuing instructions to regularize recruitments of unqualified teachers. The manner in which the respondents have issued instructions, creates an impression that for them there was no law, managements of non-government High School functioned as Jagirdars and distributed appointments in such school like alms. 12. In quite a few Circulars referred to above the reckoning date is mentioned as 28.9.1973. Although the rules laying down the minimum qualifications had come in force w.e.f. 25.10.1972, yet the respondent-State introduced 28.9.1973 as the date until which appointments of untrained graduates or persons possessing lesser qualifications were acknowledged as valid. However, even this date (28.9.1973) could not be retained for long and appointments made up to 18.6.1977 and even thereafter were/have been regularised. It has been contended on behalf of the petitioners that as the respondents have regularised appointments of other teachers who were similarly appointed and possessed lesser qualifications than prescribed, they cannot deny to the petitioners recognition and regularisation of their appointments as well. Force of this argument is acknowledged almost in every case decided until now, as noticed above by me. It shall in no way lie in the mouth of the respondents to say that they cannot give to the petitioners the same treatment which they have given to others similarly situate. Perhaps, on this a mandamus should issue. But can a mandamus be issued? In my view, no. 13. A mandamus is issued to enforce performance of a legal duty. In my opinion, the only duty which the respondents were/are• required to discharge is to strictly adhere to the provisions of the rules. A Govt. constitutionally created to exercise executive powers is obliged to act only in accordance with law. It has no authority of its own beyond what is given to it by law. The respondents have failed to perform their duty to act in accordance with law and they have done so by regularising appointments of unqualified teachers and by not insisting to enforce the law. If a mandamus has to be issued, it has to be issued only to ask them to refrain from acting in violation of the law. The respondents have failed to perform their duty to act in accordance with law and they have done so by regularising appointments of unqualified teachers and by not insisting to enforce the law. If a mandamus has to be issued, it has to be issued only to ask them to refrain from acting in violation of the law. No mandamus can issue to grant judicial sanction to such administrative drafts as shown by the respondents in the Circulars referred to above and in regularising appointments of unqualified teachers in the schools of the State, Petitioner in C.W.J.C. No. 3634 of 1983 is not qualified "for appointment as a teacher. No mandamus, therefore, in my opinion, can issue at his instance. Petitioner in C.W.J.C. No. 2426 of 1983 is also not qualified for appointment as a teacher. There has been some controversy before us, whether on account of her training in cutting and tailoring she qualified for appointment even• under the 1972 rules or not. There is some confusion whether a post of a teacher in Crafts (cutting and tailoring) was in existence in the school in question when the petitioner was appointed or not. If such a post had existed at that time, a question undoubtedly would arise whether the petitioners service was required to be regularised by the respondents or not. On the facts stated before us, the petitioner's appointment in• the school is covered by sub-section (3) of section 3 of the Bihar non-government High Schools (take over of the management) Act. The petitioner qualify as a Craft teacher as under 1972 Rules also there has been a provision of such a teacher. Such provisions have been made even under the new rules recently introduced under the Take Over Act of 1981. It is difficult, however, on the facts scantly stated to hold that she was/is qualified for such appointment. In her case, therefore, it is necessary that the respondents should examine whether she is qualified or not and if she is found qualified, her appointment should be regularised in accordance with law. 14. Although no case for issuing a direction to the respondents not to regularise appointments made in violation of rules has• been brought before us, I propose to say some words in regard to the legal duty, the respondents are required to perform. 14. Although no case for issuing a direction to the respondents not to regularise appointments made in violation of rules has• been brought before us, I propose to say some words in regard to the legal duty, the respondents are required to perform. Rules relating to the establishment of the High Schools do require conditions to• be fulfilled before the schools are recognised and now taken over by the State Government. These rules do prescribe conditions of eligibility, procedure• for selection and appointment of teachers in the High Schools. Whatever the variations and changes in the law, conditions of eligibility have been more or less unchanged after the enforcement of the 1972 rules. Should the respondents allow founders or organisers of the institutions to impart secondary education without insisting upon their adhering to the minimum conditions of eligibility of the teachers for their appointment to teach different subjects in the schools? To answer this question in the affirmative will mean sanctioning a course which shall give to the management of the schools freedom to ignore the law and show in their records appointments of their favourites even though not qualified. Existence of caprice always destroys the rule of law. Merit and standard always suffer when extraneons considerations intervene- It will not be possible for this court to close its eyes to many violations that the respondents are committing by regularising illegal appointments. It will be sensible for them to refrain from regularising such illegitimate acts which are likely to destroy the very purpose for which the rule of law is established. 14. In the result both the applications that is to say C.W.J.C. No. 3634 of 1983 and C.W.J.C. No. 2426 of 1983 are dismissed but without costs.