Judgment B. P. Singh, J. 1. In all these writ applications substantially the same reliefs have been claimed, and hence these writ application were heard together and are being disposed of by this judgment. 2. The petitioners herein, who claim to be trained teachers, and whose names were borne on the various district panels prepared for appointment of teachers in Primary Schools, challange the Government Resolution dated 5th march 1991, whereby the Government decided that for the purpose of appointment of teachers in Primary Schools, training shall not be considered as a compulsory qualification. It further decided that after appointment, the persons selected shall be given training in Government Teachers training collegs, and that the selection for appointment shall be only on the basis of merit. The Resolution discloses the reasons which compelled the Government to take such a decision. Thereafter, rules have been framed by the Government under proviso to Article 309 of the Constitution which were notified on 30th September.1991. These rules have been challenged by the petitioners. They have also challenged the advertisement issued for the purpose of appointment of Primary School teachers, which have been issued subsequent to the promulgation of the rules. The grievance of the petitioners is that having acquired training, they were qualified for appointment as the Primary schools, and consequently in accordance with the practice earlier followed, their names were borne on the waiting lists prepared by the different district administrations on the basis of the recommendation of the Selection committees. Since the Government Resolution Hated 5-3-1991 and the rules framed thereafter, ignored the existence of those panels, and provide for selection and appointment of teachers on different considerations, their rights have been adversely affected by the arbitary and unreasonable action of the State. It may be noticed thatbefore the issuance of the Government resolution dated 5-3-1991, by order dated 2nd July, 1989, following the judgment of Full Bench of this Court quashing the district panels, the authorities were directed to prepare fresh panels after deleting condition in the advertisement. It may be noticed thatbefore the issuance of the Government resolution dated 5-3-1991, by order dated 2nd July, 1989, following the judgment of Full Bench of this Court quashing the district panels, the authorities were directed to prepare fresh panels after deleting condition in the advertisement. A full Bench of this Court held that a disqualification based upon resident in the matter of appointment to the post of Primary teacher was hit by Article 16 of the Constitution of India, and since the panels had been prepared on the basis of illegal advertiesments issued by the authorities, were by resident of other districts where excluded from applying for the posts in a particular district, the panels prepared by the authorities were illegal. 3. The respondents on the orher hand, have sought to justify the action of the State on the ground that the panels earlier prepared having been declared to be illegal the State was found to ignore those panels and issue direction for preparation of fresh panels in accordance with law. The government Resolution dated 5-3-1991 providing that training shall not be a compulsory qualification, was issued in the pecular circumstances enumerated in the Resolution itself. Thereafter, the Governer framed Rule under the proviso to Article 309 of the Constitution of India, which was entirely within his competence. Those rules cannot be assailed. It was contended that the petition claim any right on the basis that their name were included in the waiting lists prepared earlier, which were declared to be illegal by the high Court. This in a nutshell, is the scope of the controversy in this batch of writ applications. 4. The relevant facts may now be noticed. The representative facts c. W. J. C. No.2292 of 1991, which was filed before the rules under proviso to Article 309 of the Constitution of India were promulgated by the Governer. Subsequently, by an amendment of the writ application the petitioners prayed for quashing the rules as also the advertisement issued pursuant thereto. 5. The petitioners claim that after passing the matriculation or the i. A. examination, the petitioners were selected for admission to teachers training Colleges. They thereafter pursued the course of studies in such government Teachers Training Colleges run by the State of Bihar and were ultimately declared successful at the examination. 5. The petitioners claim that after passing the matriculation or the i. A. examination, the petitioners were selected for admission to teachers training Colleges. They thereafter pursued the course of studies in such government Teachers Training Colleges run by the State of Bihar and were ultimately declared successful at the examination. They refer to Annexures 1 to 7, which according to them, lay down the proceedure earlier followed for appointment of teachers in the Primary Schools. Candidates were selected for training in Government Teachers Training Colleges and after passing the requisite examination they selected for appointment as teachers on the basil of the marks obtained them. They were so selected by the District Planning committee or by the District Establishment Committee as the case may be, at the district level. The panels were prepared after in giving applications, the selected candidates were sent for training to Government Teachers training Colleges. After completion of training appointments were made from the panels so prepared, and those not appointmented were placed on the waiting list, as that future appointments could be made from the waiting lists maintained by the District, Unfortunately, no consistent policy was followed at the district level, with the result that where as in some district appointments were made from the panels and the panels stood exhausted, in other districts where appointments were not made, or very few appointments were made, the waiting lists continued for years togeher. Some of the persons whose names are borne on the waiting list have been waiting for their appointments since the year 1975. The policy of the Government was to give preference to trained teachers. In this connection they have referred to annexure-1 which is a letter from the Special Officer, Education Department to all District Superintendents of Education. By the said letter he instructed the District Superintendent of Education to give preference to trained teachers over untrained teachers in the matter of appointment in elementary Schools. Even if there were names of untrained candidates available in the existing panel, fresh applications were to be called for immediately after publication of the reault of Junior and Senior Training Schools so that the candidates coming out successful may be considered for appointment. Even if there were names of untrained candidates available in the existing panel, fresh applications were to be called for immediately after publication of the reault of Junior and Senior Training Schools so that the candidates coming out successful may be considered for appointment. The untrained candidates of the previous panel, if any were not to be appointed and the fresh panel prepared after publication of training school results were to be followed till all the trained candidates were absorbed. From Annexure-1 one can readilly gather that the policy of the Government was to give preference to trained candidates in the matter of appointment of teachers in elementary schools. Annexure- 2 is another letter of the Joint Secretary euro-Additional Director of Public Instructions directing preparation of panels yearwise, but giving preference to trained candidate. Annexure-3 is a letter addressed by the Director, Primary Education-cum-Joint Secretary to all District Superintendents of Education instructing them to prepare panels to avoid delay in the matter of appointment. Referring to earlier letters on the subject it is stated in Annexure-3 that a list of candidates must be kept ready, because if such lists are not prepared in advance, there There may be considerable delay in the making of appointments. Accordingly, instructions were issued to prepare separate list of trained candidates and list of untrained candidates. Annexure-4 is not very relevant. Annexure-5 is a notification issued in the name of Governor dated 28th November, 1980/2nd December, 1980, providing for the constitution of a Committee for appointment of teachers, preparation of waiting list, promotions and transfers etc. The Committee so constituted consisted of seven members with the District Magistrate as its chairman. Annexure-6 provides that in the matter of preparation of watting list the students belonging to the earlier academic sessions should be placed higher than those belonging to the later academic session, even if the results of both academic sessions were announced at the same time. 6. Annexure-7 is a letter of the State Government addressed to all the District Magistrates and the Deputy Commissioners and is dated 2nd july, 1989. 6. Annexure-7 is a letter of the State Government addressed to all the District Magistrates and the Deputy Commissioners and is dated 2nd july, 1989. The latter refers to the judgment of the High Court in C. W. J. C. Nos.5490 of 1986 and 3882/88, and further states that in consultation with the Advocate General, the following decisions have been talcen : (a) The panels prepared in the districts on the basis of Advertisement providing for disqualification on the ground of residence should be cancelled ; (b) Those candidates who had already been appointed from such panels shall continue in service ; (c) Advertisements shall be issued for preparation of panels without a condition that the candidates should belong to that particular district. The appointment; however, shall be made by the Establishment committee under the Chairmanship of the District Magistrate. Though applications may be invited by notice issued by the directorate of Primary Education, those persons whose names were in the panels but who would not be appointed in view of the directions contained in the latter, may also apply and shall be considered for inclusion in the panels on the basis of merit. The competent authority, however, shall grant them appropriate relaxation in the matter of age. Annexure 7 has been challenged by the petitioners on the ground that it frustrates the claim of the petitioners to be appointed as teachers on the basis of their names being included in the watting list of the district panels. 7. Annexure-8 is a communication dated 4th July, 1989, which only emphasises the fact that the judgment of the High court does not in any manner affect the continuance of the District Establishment Committee which was vested with the power of making selection for appointment of teachers. Then comes Annexure-9, the validity of which has been sariously challenged by the petitioners Annexure-9 is a Government Resolution issued in the name of Governor of Bihar. The Resolution states that in the state of Bihar Government and non-Government Teachers Training Institutions are being run, since Primary as well as Secondary Teachers are appointed on the basis of such training obtained by the candidates in such institutions. These is consequently a great demand for registration of candidates in such training Colleges. The Resolution states that in the state of Bihar Government and non-Government Teachers Training Institutions are being run, since Primary as well as Secondary Teachers are appointed on the basis of such training obtained by the candidates in such institutions. These is consequently a great demand for registration of candidates in such training Colleges. In the Government Teachers Training colleges candidates are registered on the basis of merit, but in the Non-Government Teachers Training Colleges such a principle is not followed giving rise to malpractices and providing to such institutions a source of earning. Keeping in view these circumstances the State Government promulgated an Ordinance prohibiting the establishment of Non-Government Teachers training Colleges without the prior permission of the State Government. Certain conditions had been imposed by the State Government in regard to recognition/affiliation of such Colleges, but these measures have not yielded the desired result. In these cirumstances, with a view to do away with the malpractices prevalent in such Non-government Teachers Training Colleges, and to raise the standard of training, the Government has taken the following decisions : (a) In the matter of appointment of teachers, training shall not be a compulsory qualifications ; (b) After appointment, the selected candidates shall be given training in the Government Teachers Training Colleges : (p) The selection for appointment to the posts of teacher shall be solely on the basis of merit; (d) Necessary amendments may be made to the rules relating to the appointment of Teachers. 7. It will, therefore, appears from Annexure-9 that the Government was compelled by circumstances to do away with the compulsory qualification of traing for appointment as Teacher in its schools. We can take Judicial notice of the fact that there was a mushroom growth of teachers Training colleges in the State of Bihar, and in large number of cases it was found that such Colleges were ill-equipped to give any sort of training to its students. In fact, a large number of such institutions were found to be fake institutions, and the sole purpose of their establishment was commercial in. nature. Training certificates were virtually brought from such institutions. In fact, a large number of such institutions were found to be fake institutions, and the sole purpose of their establishment was commercial in. nature. Training certificates were virtually brought from such institutions. The candidates, who had passed out from Non-Government Teachers training Colleges also claimed to have the same qualification as those who had passed out from genuine Government Teachers Training Colleges, no distinction could be made in the matter of appointment The result was that many persons, who on paper had the requisites qualification, managed to get appointment as teachers, though in reality they could not claim to be trained candidates. Large number of writ applications were disposed of by this Court relating to grant of recognition such institutions. It appears that the Government, despite measures introduced by it, could not control the situation and hence decided to select candidates on merit and thereafter to send them for training in Government Teachers Training Colleges. 8. To their supplementary affidavit the petitioners have annexed several other communications and directions issued prior to March 1991 which refer to the procedures to be adopted for appointment of teachers, preference being given to trained candidates It was not even disputed before as that earlier, in the matter of appointment of teachers, preference was being given to trained candidates. Even now, the Government attaches great importance to training being imparted to teachers, but with a view to aviod appointment of teachers on fake certificates granted by fake institutions the Government has decided to get selected candidates trained in its own teachers Training Colleges. 9. On 30th September, 1991 a notification was issued by the Government of Bihar (Annexure-24) promulgating the Bihar Elementary School appointment Rules. The Rules have been promulgated under proviso to article 309 of the Consititution of India by the Government of Bihar. The Rules came into effect from the date of issuance of notification. Rule 4 provides for the constituiion of a committee to be known as District education Establishment Committee entrusted with the duty to select and appoint teachers. Rule 5 provides that applications shall be invited from candidates having the requisite qualification who should be citizens of India and should have passed the matriculation or equivalent examination having secured at least 45 per cent marks. For the subjtct to Urdu separate qualifications have been laid down. Rule 5 provides that applications shall be invited from candidates having the requisite qualification who should be citizens of India and should have passed the matriculation or equivalent examination having secured at least 45 per cent marks. For the subjtct to Urdu separate qualifications have been laid down. The minimum and maximum age shall be as determined by the Government from time to time. The candidates are required to pay a sum of Rs 45/- by way of examination fee. In the case of candidates belonging to Scheduled Caste and- Scheduled Tribe such fee shall be Rs.15/- Rule 9 provides that a written examination shall be conducted in which a maximum of 100 marks may be awarded, 30 marks are to be awarded for language, 40 marks for General Knowledge and 30 marks in the subject of Arithmetic. Rule 10 provides that merit lists shall be prepared on the basis of the marks obtained in the examination, subject to rules regarding reservation. In the case of trained candidates three mark shall be granted to those trained candidates who have secured more than 60 percent marks in the training course, whereas the other trained candidates shall be awarded only two marks. The panel shall included the names of candidates one and a half times the number of vacancies available, rule 12 provides that the life of the waiting list shall be one year aqd after expiry of one year it shall be deemed to have lapsed The rules further prescribed that trained candidates shall be appointed in the matric trained scale. Untrained candidates shall be appointed in the matric untrained scale, subject to the following conditions, namely : (a) On being deputed for training, if they refuse to take part in the training without reasonable cause, the appointment shall be terminated. (b) After training an examination shall be held, and if a candidate fails at such examination, be shall be given one more opportunity to pass the examination. If he again fails, his appointment shall be terminated. (c) During the period of training, they shall be paid stipend at the rates prescribed from time to time, and shall not be entitled to the pay scale. (d) After passing the training examination they shall be entitled to the matric trained scale. It is not necessary to refer to other provisions of the rules. (c) During the period of training, they shall be paid stipend at the rates prescribed from time to time, and shall not be entitled to the pay scale. (d) After passing the training examination they shall be entitled to the matric trained scale. It is not necessary to refer to other provisions of the rules. What is indisputable is that prior training is not a compulsory qualification for appointment as teacher even under the rules, but the trained candidates are entitled to two extra marks, and three extra marks if they have secured more than 60 percent marks in the training examination. 10. Sri Ganesh Prasad Singh, Senior Advocate, appearing on behalf of the petitioners in C. W. J. C. Nos.6628/91 and 6840/91 submitted that the petitioners do not challenge the prospective operation of the rules. He, however, submitted that the vacancies, which existed prior to the date of the notification of the Rules, must be filled up on the basis of the earlier instructions, and not in accordance with the impugned rules. He further submitted that though Annexure-3 discloses the reasons for the change in governments policy of not insisting on training as a compulsory qualification, those reasons do not apply to the cases of the petitioners, as all of them had Obtained their training from Government institutions and possess vaild displomas/degrees. The petitioners belong to the district of Nswadah, where appointments did not take place for several years, despite the fact that their names were borne on the waiting list. If the rules are to be applied, they will now be overage for appointment. He further submitted that the rules now prescribe that the candidates must secure at least 45 percent marks in the matriculation or equivalent qualifying examination. Earlier in the case of Special categories, such as Scheduled caste and Scheduled Tribe, candidates who obtained less than- 45 percent marks were also eligible for appointment. That is not the case under the impugned rules. He further submitted that though penels were prepared in the different districts, no uniform Policy was followed with regerd to the maintenance of such panels. That is not the case under the impugned rules. He further submitted that though penels were prepared in the different districts, no uniform Policy was followed with regerd to the maintenance of such panels. In some cases large number of appointments were made and, therefore, large number of candidates on the waiting list were appoined as teachers In other districts very few appointments were wade with the result that the waiting list because longer and longer, and the persons who remained in the waiting list for several years could not be appointed. Lastly, he submitted that if the purpose behind the rules was to avoid the appointment of persons who had obtained degrees/ diplomas from fake institutions, only such candidates should have been releted for theif eligibility. There was no justification for doing away with training as a compulsory qualification for appointment as teacher. It was faintly submitted that even the contemplated examination under the rules provides for examination in the subjects, which were not tought in the teachers Training Colleges. He further submitted that the rules should be applied Only prospectively, meaning thereby, only to the vacancies which have occured after the promulgation of the rules and consequently application of the rules to vacancies which exised before the promulgation of the rules, most be held to be arbitrary and unreasonable. In C. W. JC. No.6840 of 1991 the petitioners belong the districts of east Champaran and Sitamarhi. It is not disputed that some of the petitioners had passed out from Non-Government Teachers Training Colleges, but such colleges were recognised institutions. 11. Dr. Sadanand Jba, counsel appearing on behalf of the petitioners in C. W J. C. Nos.6639/91 and 9645/91 submitted that the Government lawyers represented that the Government always reperesented that appointments will be given to trained candidates. In view of the representation made, the petitioners spent their time and money in obtaining such training Now, they are told that the training is not an essential qualification. According to him, by application of the principle of promissory estoppel the State cannot be permitted to change its stand, as trained candidates were available for appointment It was further submitted that the rules profess to be prospective and, therefore, the vaencies that may have occured after the promulgation of rules may be filled according to the impugned rules. According to him, by application of the principle of promissory estoppel the State cannot be permitted to change its stand, as trained candidates were available for appointment It was further submitted that the rules profess to be prospective and, therefore, the vaencies that may have occured after the promulgation of rules may be filled according to the impugned rules. As a principle of law he submitted that the vacancies sought to be filled up must be filled up in accordance with the rules, as they were in force when the vacancies occured. The State cannot be permitted to apply tie impugned rules to vacancies which existed in the past, because by doing so it was doing indirectly what could not be done directly. Without changing the law making it retorspective, it cannot achieve the same objective by applying the rules in such a manner. It was also submitted that the entire basis of the rules are arbitrary. There no rationale to justify the policy that persons without training are better equipped than those trained in private institutions. The impugned rules do not achieve the purpose, in fact they do not touch the problems at all. Sines trained candidates were available, their inclusion will not help prevent the mushroom growth of bogus institutions. Morever, the future of tiny-tots could not be left to the case of untrained persons. Indeed, if the statistics are taken, it will be found that there are already enough institutions to train persons who may be appointed under the rules. The number is so large that would be impossible for the Government to train the appointees in Government Teachers Training Colleges. He also submitted that the rules framed under the Bihar and Orissa Local Self Government Act, and the Bihar Primary and Middle Education Rules, 1961 cannot be superseded by the rules under the provisio to Article 309 of the Constitution of india, unless the earlier rules are repealed. It is, therefore, follows that preference must be invariably given to trained candidates who form a separate class. 12. Mr. It is, therefore, follows that preference must be invariably given to trained candidates who form a separate class. 12. Mr. Sunil, Kumar, Advocate appearing for the petitioners in c. W. J. C No.7814 of 1991 submitted that according to the earlier practice, the evaluation of merit was done at two stages, firstly at the point of entry into training Colleges, and thereafter on conclusion of the training The marks obtained by the candidates at both the examinations were taken into account. He submitted that once a person was selected for admission to a government Teachers Training College, and after the training passed the requisite examination, his name had to be put on the panel. Consequently, a vested right of appointment accrued to him which could not. be taken away by a rule made under the proviso to Article 309 of the Constitution of India. The petitioners where put on the waking list in different years, and since there was no provision restricting the life of the panel, they continued to be on the panel till such time as they were appointed. That rightoceuld not. be defeated by application of the impugned rules. In C. W J. C. No, 7756 counsel for the petitioners submitted that the rules should be applied prospectively. and the vacancies that existed prior to the coming into force of the impugned rules should be filled up according to the practice prevalent before coming into force of the rules framed under the proviso to Article 309 of Consitution of India. 13. Learned Advocate General appearing on behalf of the respbndents submitted that the rules, which have been challenged in the writ application are the rules which have been framed by the Governor under the proviso to Article 309 of the Constitution of India. There is no challenge to the legislative competence of the Governof to frame such rules. Neither is there any challenge to the rules on the ground that they infringe any part of the constitution or offend any of the Articles in Part III of the Constitution. The rules have been framed to regulate recruitment of teachers in Government schools. There is no challenge to the legislative competence of the Governof to frame such rules. Neither is there any challenge to the rules on the ground that they infringe any part of the constitution or offend any of the Articles in Part III of the Constitution. The rules have been framed to regulate recruitment of teachers in Government schools. He submitted that the Government Resolution (Annexure-9)gives the background in which the Governor was compelled to decide that in future in the appointment of Assistant Teachers, Training shall not be considered as essential requirement, and that after appointment the selected candidates shall be given training in Government Teachers Training Colleges. He, therefore, submitted that there was no real challenge to the validity of the rules, and such a rule framed by the Governor has the force of law. He submitted that the rules laid down a minimum qualification for appointment as teacher in a Government institution. The rules insisted upon the candidates securing at least 45 percent marks in the matric or equivalent examination. This was done with the object of achieving efficiency and could not be said to be unreasonable. He submitted that the earlier panels and waiting lists were not properly prepared and in fact this Court has declared such panals to be illegal as offending Article 16 of the Constitution of India. He relied upon the judgement of this court, reported in 1987 P. LJ. R.846 (Anil Kumar V/s. State of Bihar) wherein it was held that a lest prepared on the basis of an advertisement restricting persons of other districts from being considered for admission to the posts of teachers of that district alone, was par as violative of Articles 14 and 16 of the Constitution, because it discriminated the residents of other districts without and rational basis. He submitted that all the petitioners in these applications were included in the waiting lists prepared in the different districts on the basis of similar advertisements. In view of the judgment of this court which has achieved finality, the Government was bound to cancel those panels and to make frash panels in accordance with law. He submitted that all the petitioners in these applications were included in the waiting lists prepared in the different districts on the basis of similar advertisements. In view of the judgment of this court which has achieved finality, the Government was bound to cancel those panels and to make frash panels in accordance with law. He, therefore, submitted that Annexure-7 was issued by the State Government in pursuance of the said decision which directed the District Officers to cancel all panels prepared in the district on the basis of advertisements providing for qualification on the ground of residence Since those panels were cancelled in accordance with law, the petitioners had no substantive right to claim appointment on the basis that their names were borne on such panels which were ultimately cancelled in any event, he submitted, that even if it is assumed lists prepared in the different districts, that by itself did not confer on them an indefessible rights of being appointed This is not a case where the process of selection had begun and the rules came into force later. According to him, appointments were made from time to time A waiting list was prepared not under any law, or rules framed under a law, but executive instructions only to facilitate appointments to be made in future without further delay. In the facts and circumstances, he submitted that such a waiting list maintained for the sake of convenience cannot be equated with select list In any event, he submitted that even if the names of the petitioners were borne on the select list, that also would not confer on them an ineffesible right of appointment. In the past there were no rules framed for tecruitmept of teachers. On the basis of executive instructions appointments were being made from time to time. After the rules framed under the proviso to Article 309 of the Constitution have come into force, all appointments must be made only in accordance with such rules He also submitted that the submission that training of teachers was dispensed with under the rules, is misconvaived. Government regarded training of teachers as essential and it was for the purpose of imparting them genuine training that a change of policy became imperative. Government regarded training of teachers as essential and it was for the purpose of imparting them genuine training that a change of policy became imperative. With a view to avoid appointment of candidates who had managed to obtain some sort of a training from an institution which could not be regarded as genuine or having the requisite standard, the Government decided to appointed candidates on the basis of their merit regardless on the fact whether they were trained or untrained candidates. After selection for appointment, the candidates were to be sent for training in Government institutions, They were given two chances to pass the requisite training examination, and on their failure to pass the said examination their servies were to be terminated. The only difference is that in the past a preference was given to trained candidates in the matter of appointment. Under the impugned rules training is not a mandatory qualification for selection, but the selected candidates must passed the training examination after selection. It is also not correct to contend that the rules do not provide for any benefit to trained candidates and that it treated trained and untrained candidates on the same footing. He referred to the rules and submitted trained candidates were entitled to two extra marks on account of their being trained candidates, and if they had secured more than 60% marks in the training examination, they were entitled to three extra marks He, therefore, submitted that the rules did not ignore the qualification of the candidates who had obtained training and possessed the necessary training certificates. He further submitted that the Governor was not oblivious to the facts that in any district appointments had not been made in sufficient numbers and large number of trained candidates were available for appointment. Under Rule 3, therefore, the Government was authorised to fix the minimum and maximum age for appointment as Assistant Teacher. Earlier the maximum age for appointment as Assistant Teacher was 28, but under the advertisement (Annexure-26) issued by the Government the maximum age had been fixed at 35. 14. I have only indicated very broadly the points urged by counsel for the parties. Some other submissions have also been advanced before us which I shall deal later. 15. Before considering the legal submissions, it is necessary to clear the factual background in which the controversy arises. The facts are not in dispute. 14. I have only indicated very broadly the points urged by counsel for the parties. Some other submissions have also been advanced before us which I shall deal later. 15. Before considering the legal submissions, it is necessary to clear the factual background in which the controversy arises. The facts are not in dispute. Admittedly no rules had been framed in the past providing for the manner of recruitment of Assistant Teachers in Primary Schools. The procedure for appointment of teachers in Primary Schools was governed by instructions issued from time to time. I have referred to some of those instructions earlier, namely, Annexnres 1 to 6. From a perusal of the relevant annexures it is apparent that the district authorities issued advertisement from to time, inviting applications from qualified candidates for appointment as Assistant Teacher in the Primary Schools. On the basis of the applications received, selection was made by the Committee constituted for the purposs. The names of those who would not be appointed in a particular year were kept on the waiting lists. , It is also not disputed that waiting lists were prepared as a matter of convenience under executive instructions, because it was felt that if such awaiting list was kept ready, that may avoid delay in the making of appointments in future. The instructions also provide that panels were to be prepared other-wise, and the trained candidates were to be empanelled first followed by untrained candidates, As between traine and untrained canndidates trained candidates had to be given preference. It is also obvious that as between trained candidates of different years, those were borne on the parcel of the earlier year were to be appointed first and only after that list was exhausted, the trained candidates of the subsequent year could be appointed. In the event sufficient number of trained candidates were not available, untrained, candidates could also be appointed in certain circumstances. The petitioners are the persons whose names were borne on the waiting lists of different districts in different years. It is not in dispute that the advertisements issued in the different districts inviting applications from qualified candidates prescribed a qualification based on residence, and excluded candidates, who aid not belong to that particular district. 16. The state of affairs as it existed before the impugned rules were promulgated by the Governer, do certainly depict a sorry state of affairs. It is not in dispute that the advertisements issued in the different districts inviting applications from qualified candidates prescribed a qualification based on residence, and excluded candidates, who aid not belong to that particular district. 16. The state of affairs as it existed before the impugned rules were promulgated by the Governer, do certainly depict a sorry state of affairs. It is not understandable why the Government did not consider it expedient to frame rules earlier having regard to the fact that the cadre of Assistant teachers is a very large cadre. Howeyer, strictly speaking, it was open to the Government to regulare matters relating to the recruitment of teachers in accordance with the instructions issued from time to time in the absence of rules. It is well-settted that the absence of rule does not preyant the government from issuing executive instructions in regard to the matters within the competence of the State legislature. What is, however, surprising is the fact that the appointments were to be made from the panels prepared in different years, and a trained candidate of the earlier year had a right of prior appointment as against as trained candidate of a subsequent year. The determinative factor was the year in wbich the candidate had passed the training examination. This was regardless of the relative merit of the candidate. A trained candidate whose name was borne on the waiting list of an earlier year had to be appointed, even if such better trained candidate available whose names were borne on the waiting list of a subsequent year. It is difficult to comprehend on what rational basis such instructions could be justified, because if large number of trained candidates were available for appointment, their relative merit ought to hove been considered by the selection Committee. Instead of doing that, the sole basis now which candidates were given preferential treatment was the year in which they passed the training examination. In my view, such a classification based solely on the year in which a candidate acquired the qualification, is neither reasonable differentia is having a nexus to the objectives sought to be achieved. The result was that the candidates who had qualified earlier, even if they had poor marks than the candidates who bad passed out subsequently, we preferred in the matter of appointment. The result was that the candidates who had qualified earlier, even if they had poor marks than the candidates who bad passed out subsequently, we preferred in the matter of appointment. My view finds support from the principles laid down by the Supreme Court in State of U. P. V/s. Ram Gopal a. I R.1981 S. C.1041, and by this Court in Deota Nath Tiwari V/s. State of bihar (1981) PLJR.580. It is not necessary for me to dilate on this question further, because the panels having been cancelled, the objection has only academic significance. 17. The more important aspect of the matter is that the panels so prepared by the District authorities were ultimately, cancelled by the government by issuance of the order (Annexure-7) dated 2nd July, 1989. Annexure-7 in terms refers to the Judgment of the High Court, rendering in c. W. J. C. No.5490 of 1986 and C. W J. C. No.3882 of 1988. The state Government directed all District Magistrate and Deputy commissioners to cancel the panels prepared in the districts on the basis of advertisements providing for disqualification on the ground of residence. The direction did not affect the cases of persons already appointed from such panels. It futher direct the district authorities to issue advertisements for preparation of panels without prescribing a qualification based on residence. The petitioners have challenged the validity of Annexure-7 and I shall, therefore, consider this submission first of all. 18. The judgment of this court in C. W. J. C. No.5493 of 1986 is reported, in 1987 P. L. J. R.846. The petitioners in the aforesaid writ application had questioned the validity of an advertisement dated 7-5-1985 issued by the District Superintendent of Education, Hazaribagh inviting applications for preparation of a panel of candidates for appointment to the posts of Assistant Teacher in the Primary Schools of the district, and the order dated 31-1-1986 issued by the Special Secretary, department of Education, Government of Bihar, laying down the requisite qualification/condition for being considered for appointment to the aforesaid posts. One of the conditions of eligibility prescribed in the advertisement was that the applicant must be trained teacher from the district of hazaribagh or he must have passed the inatric or higher education from the district of Hazaribagh or his parents must be living in the same district for the last ten years. One of the conditions of eligibility prescribed in the advertisement was that the applicant must be trained teacher from the district of hazaribagh or he must have passed the inatric or higher education from the district of Hazaribagh or his parents must be living in the same district for the last ten years. Later, by order dated 31-1-1986 the Special Secretary, department of Education defined residents of the district to mean (i) the original or permanent residents of the district; (ii) persons whose parents living in the district of in question for were then ten years. In the case of female candidates it was mentioned that they shall be deemed, to be the permanet residents of the district if theis husband or father were the resident of the district. The aforesaid advertisement was challenged before this court, and this court after careful appraisal of various decisions of the Supreme Court held as follows : "10. In the instant case, the Special Secretary, Department of education, Government of Bihar, by the impugned order dated 31-1-1986, has purported to restrict the perrons residents of other district of the State of Bihar from being considered for appointment to the posts of teachers in the Primary. Schools and has made the posts available only the residents of the district of Hazaribagh. The order per se is violative of articles 15 and 16 of the Constitution because it discriminates the residents of other districts without any rational basis. It need not be pointed out that the residents of Hazaribagh neither from a class separate from the residents of other districts of the state nor there is any reasonable object which is sought to be achieved by the order which is under challenge. It has been repeatedly pointed out by the Courts that the framers of the constitution under Article 16 desired that persons on merit should be selected for appointment in public services irespective of their caste, creed, religion or residence. This object is frustrated when anv reservation is made on the basis of the district because persons who have better merit but not being residents of the district in question are deprived of the opportunity of being considered for appointment to the posts in question.11. This object is frustrated when anv reservation is made on the basis of the district because persons who have better merit but not being residents of the district in question are deprived of the opportunity of being considered for appointment to the posts in question.11. In such a situation I am left with no option but to hold that in the advertisement dated 7-5-1985 and the order dated 31-1-1986 putting any condition rsgarding being resident of the district of Hazaribagh or having received training in the district of Hazaribagh is violative of Articles 14 and 16 of the Constitution and as such liable to be quashed This writ application is, accordingly allowed But, as the persons who have already been appointed are not party to this application, their appointment cannot be held to be invalid in their absence. However, the respondents are restrained from making any appointment from the panel prepared on the basis of the advertisement and the order aforesaid In the circumstances of the case, there will be no order as to costs. " 19. It was not disputed before us that the advertisement issued by the district authorities in all the districts of Bihar followed the order of the special Secretary, Department of Education dated 31-1-1986 laying down the qualification based on residente The learntd Advocate General, therefore, rightly contended the they having regard to the law declared by this court, and having regard to the fact that the panels prepared in the different districts of Bihar suffered from the same illegality and offended Articles 14 and 16 of constitution of India, the State Government was left with no option but to issued Annexure-7 dated 2nd July; 1986, cancelling all the panels prepared on the basis of advertisements providing for difficult to assail Annexure-7. The view that I have takeo also finds support from the Principle laid down by the Suprense Court in State of Ahdhra Pradesh V. T. Rama Krishna Rao air 1972 SC 2175 . In Rama Krhhna Raos case the State Public Service commission of Andhara Pradesh had invited applications in the year 1968 for the posts of District Munsif. The Public Service Commission was empowered by Rule 5 of the recruitment rules to prepare a list of persons considered for appointment to the posts of District Munsif after holding such examination as the Government considered necessary. The Public Service Commission was empowered by Rule 5 of the recruitment rules to prepare a list of persons considered for appointment to the posts of District Munsif after holding such examination as the Government considered necessary. Rule 5 was challenged before the High Court on the ground that it emdowered the Government, contrary to Article 234 of the Constitution, to determine whether an examination was necessary or not, and also the pattern of such an examination. The High Court upheld the contention, and further held that the government order pursuant to the said Rule for holding of examination by the Commission was also void having been issued invalid rules. Thereafter the Governor amended Rule 5 in the light of the judgment of the High court, after consultation with the High Court in the Commission, as enjoined by Article 234 of the Constitution Theraafter the Commission issued a fresh advertisement inviting fresh applications to hold examination for the purpose of filing up vacancies in the posts of District Munsif. Some of the candidates, who had applied pursuant to the advertisement issued in the year 1968, challenged the validity of the holding of fresh examination on the ground that since they had applied in respons to the advertisement in the year 1968, they could not be subject to written examination under the amended rule as it was prospective in nature. They acquired a right to be considered in accordance with rule 5 before its amendment and, therefore, they could not be subjected to written examination and oral test as required by amended rules. The High Court partly allowed the writ petition directing the Commission to hold a separate examination for those who had applied in the year 1968. On appeal the Supreme Court set aside the order and held that since Rule, 5, as it stood in 1968, had been declared void, the advertisement issued by the commission inviting applications, and all proceedings taken by the Commission including the examination held there under, was rendered void. It was observed that those candidates, who had made applications in 1968 had not acquired any right as their applications bad been made under a Rule which had been declared invalid. The question, therefore, as to whether the amended Rule 5 was retrospective or prospective did not arise for consideration. It was observed that those candidates, who had made applications in 1968 had not acquired any right as their applications bad been made under a Rule which had been declared invalid. The question, therefore, as to whether the amended Rule 5 was retrospective or prospective did not arise for consideration. The Court observed : "secondly the respondents had not acquired any right by merely applying for the posts either under that rule or otherwise, to be selected for the posts The Commission, therefore, was perfectly justified in treating the earlier applications for the respondents as invalid on the ground that they had been invited under an illegal rule and calling for fresh applications and holding a fresh examination in respect of all the 200 hundred vacancies There was thus no question of any breach of Art.16, nor of any violation of any right of the respondents as none was acquired by them. Equally, there was no question of the amended Rule 5, being prospective or retrospective as the Commission had to act afresh under the amended Rule, the unamended rule having been struck down and there being therefore no basis on which the applications of the respondents made in 1968 would be treated as valid applications. " 20. In my view, the principle laid down by the Supreme Court applies with equal force to the facts of these cases and the learned Advocate General has rightly asserted that the panels based on residential qualification by the district authorities having been declared to be valid as offending Articles 14 and 16 of the Constitution of India, the Government was bound to cancel all panels prepared in such manner. Therefore, Annexure-7 was justified. Since all the panels suffered an illegality, being in breach of the Principles enshrined in Articles 14 and 16th of Constitution of India, the petitioners whose names were borne on such panels acquired no right of appointment against the post advertised on the basis of inclusion of their names in such panels, since those panels were cancelled, as they were in breach of Article 16 of the Constitution of India no question arose of violation of any right of the petitioners, as none was acquired by them. In the facts and circumstances the Government was bound to issue a fresh direction with regard to the preparation of fresh panels in accordance with law. In the facts and circumstances the Government was bound to issue a fresh direction with regard to the preparation of fresh panels in accordance with law. This is precisely what the Government did by issuance of Annexure-7. He, therefore, rightly submitted that after issuance of Annexure-7 validly cancelling the panels, the petitioners cannot claim any right on the basis that their names were borne on such panels. I, therefore, hold tbat the names of the petitioners were borne on panels which were clearly illegal having been prepared on the basis of advertisements which offended articles 14 and 16 of the Constitution of India, as declared by this Court in the Case, reported in 1987 P L. J R.845 (Anil Kumar V/s. State of Bihar ). Such panels/waiting lists having been cancelled by the State Government under annexure-7, the petitioners cannot claim any right on the basis thereof. Indeed, they bad acquired no right by reason of their names being borne on such illegal panels. It is well-settled that breach of any of the provisions contained in Part 111 of the Constitution of India renders the action/legislation void and non est It must logically be held that no such panels existed in the eye of law. AH these writ application can be disposed of on this ground alone, but having regard to the fact that arguments have been advanced at length before us, out of deference for counsel appearing on behalf of the parties, I shall proceed to consider other submissions urged on their behalf. 21 The main point urged before us was that by reason of the fact that panels were being prepared at the district level year after year, and the names of the petitioners were borne on the waiting lists of different years, it must be held that the selection process had begun and, therefore, notwithstanding the impugned rules, the vacancies, which existed prior to the promulgation of the impugned rules must be filed up in accordance with the rules/executive instructions as they existed when the vacancies accured. Counsel for the petitioners cited several decisions before us in support of the proposition that it is well-settled rule of construction that every statute or statutory rule is prospective unless it is specially or by necessary implication made to have retrospective effect. Counsel for the petitioners cited several decisions before us in support of the proposition that it is well-settled rule of construction that every statute or statutory rule is prospective unless it is specially or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to effect the existing rights, the rule must be held to be prospective. If a rule is expressed in a language which is fairly capable of either interpretation, it ought to be considered as prospective only. In the absence of any express provision or necessary intendment. the rule cannot be give retrospective effect except in the matter of procedure (See AIR 1990 SC 405 , P Mahendran V/s. State of Karnataka) It is not necessary to refer to the large number of authorities cited at the Bar in support of the proposition which is well settled. To avoid proximity I am not referring to all those decisions cited at the Bar in support of the proposition The submission proceeds on the assumption that the petitioners by reason of their names being borne on the waiting lists acquired a right to be appointed, and that right could not be defeated by promulgation of the rules framed under the proviso to Article 309 of the Constitution of India. In the instant cases, as I have observed earlier, there were no rules which provides for preparation of waiting lists. The waiting lists were prepared only for the sake of convenience. Advertisements were issued from time to time and year-wise lists were prepared. Those who could not secure appointment in a particular year were kept in the waiting lists. On these facts I am firmly of the view that the petitioners did not acquire any right of appointment to the posts advertised. The selection had been made in different years and the persons found more meritorious were selected for appointment. The petitioners were those who could not compete and were consequently left out. Their name were kept on waiting lists only with a view to keep a ready list for future appointment as and when made. Such waiting lists need not have a prescribed life span. According to the petitioners, the lists continued indefinitely for even as long as 15 years. In Jatlnder Kumar and Ors. V/s. State of Punjab and On. Their name were kept on waiting lists only with a view to keep a ready list for future appointment as and when made. Such waiting lists need not have a prescribed life span. According to the petitioners, the lists continued indefinitely for even as long as 15 years. In Jatlnder Kumar and Ors. V/s. State of Punjab and On. (AIR 1984 sc 1650) the contention of the petitioners that they had a right to be appointed to the posts of Assistant. Sub-Inspector of Police on the basis of selection made by the Board was repelled by the Supreme Court with the following observations ; ". . . . . . Wherever the Government is required to make an appointment to a high public office it is required to consult the Public Service commission. The selection has to be made by the Commission and the Government has to fill up the post by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service commission The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government, The Government may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation of the commission the constitution enjoins the Government to place on the table of the legislative Assembly its reasons and report for doing so. Thus, the Government is made answerable to the House for any departure vide Article 323 of the Constitution. This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, the vacancy is to be filed up, the Government has to make appointment strictly adbearing to the order of merit as recommended by the Public service Commission. It can not disturb the order of merit according to its own sweet will except far other good reasons viz, bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how any appointments will be made. It can not disturb the order of merit according to its own sweet will except far other good reasons viz, bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how any appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A N. D. Silva V/s. Union of India 1962 Supp (1) SCR 968: AIR 1962 SC 1130 and State of haryana v, Subash Chander Marwaha (1974) 1 SCR 165 : AIR 1973 SC 2216 . The contention of Mr. Anthony to the contrary cannot be accepted. " 22. In Shankaram Das V/s. Union of India 1991 (3) S. C. C. page 57 the supreme Court was called upon to consider the same question, namely, whether a candidate whose name appears in the merit list on the basis of a competitive examination acquired indefeasible right to of appointment As a government servant if a vacancy existed. The Court after considering the earlier authoritative pronouncements of the Supreme Court answered the question in the following words : "7. It is not correct to say that if a number of vacancies are notified for appointment and adquate number of candidates are found fit, the successful candidates acquire an indefasible right to be appointed which cannot be legimately denied. Ordnarly the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimation can be permitted. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimation can be permitted. This correct position has been consistently followed by this court, and we do not find any discordant note in the decision in Slate of Haryana v Subhash shanker Marwaha; Neelima Shangia V/s. State of Haryana and jatendra Kumar V/s. State of Punjab. In the same decision the court considered the contention urged on behalf of the appellant that the authorities in keeping the vacancies arising later unfilled, acted arbitrarily. After considering the facts of the rase the Court observed that from the materials produced before the Court it, was fully established that there bad been no arbitrariness whatsoever on the part of the respondents in filing up the vacancies in question or the other vacancies referred to by the learned counsel for the appellants. Ihe process of final selection had to be closed at some stage as was actually done. A decision in this regard was, accordingly, taken, and the process for further appointment to any vacancy arising later was closed The Court held that what was relevant was to see as to when the process of final selection was closed. In the facts of the instant cases, can it be said that the process of selection continued even after the persons found eligible were appointed against some of the vacancies in a particular year It is not disputed before us that the petitioners could not compute since three persons who were found better qualified for appointment Those persons having been appointed, the names of the petitioners were kept on the waiting lists. In these circumstances, in my view, the waiting lists have no legal sanctity and in any event did not confer any right on the persons whose names were borne on the waiting lists. The fact that those who were not appointed were kept on the waiting list did not mean that the selection process had not come to an end It only amounted to this that when vacancies were to be filled up in subsequent years by intiation of a fresh selection process, they may be considered for appointment. The fact that those who were not appointed were kept on the waiting list did not mean that the selection process had not come to an end It only amounted to this that when vacancies were to be filled up in subsequent years by intiation of a fresh selection process, they may be considered for appointment. If the submission urged on behalf of the petitioners is to be accepted, it has to be held that the selection process which begun in the year 1975 is a oerpetual process which continues till today, and shall continue indefinitly till such time all the vacancies are filled up. It would be difficult to accept the contention because it would result in on reasonable consequences. I have, therefrom no hesitation in holding that in the absence of rules, the preparation of a waiting list for the sake of convenience did not confer any right on the petitioners. I further hold that after appointments were made in a particular year and the candidates found most suitable having been appointed, the selection process came to an end the waiting list did not have the effect of continuing the selection process There was no rule which prescribed a life span for such waiting list, but for that reason it would be unreasonable to hold that the waiting list continued indefinitely and consequently the selection process never came to an end The decisions cited at the Bar in support of the claim of the petitioners that they had acquired a vested right of appointment arose in different set of circumstances and are cleariy distinguishable. However, it is necessary to notice decisons and their distinguishing features. 23. However, it is necessary to notice decisons and their distinguishing features. 23. In P. B Agrawal V/s. State of U. P. , AIR 1987 SC 1676 , the semoprotu ost on tje adre of Assistant Engineers was quashed by the Allahabad high Court The respondents in the writ application before the High Court appealed to the supreme Court by special leave Relying upon Rule 23 of the Uttar Pradesh Service Engineers Class II (Buildings and Roads Branch)Rules 1936, as amended in 1971, the appellants before the Supreme Court claimed that the Assistant Engineers who had been appointed substantivelv against temporary posts of the cadre, who had become members of service under the unamended rule of 1936 could not have their service reckoned from the date of their substantive appointment to the temporary posts for the determination of seniority. From the facts of the case it appears that the respondents before the Supreme Court were directly recruited as Assistant Civil Engineers in the temporary posts of the cadre upto 1961 after consultation with the Public Service Commission They had been working continuously since the date of their appointment. They contended that their seniority should be reckoned from the date of their initial appointment since (bey had continuously worked against the posts to which they were appointed Rule 23 of the Rules as it existed before the amendment was made in the year 1971 provided that such Assistant Engineers were entitled to have their seniority reckoned from the date of their being members of the service, no matter that they were hoding the posts which were temporary for year together. They had been appointed in accordance with the rules after consultation with the Public Service Commission and had been rendering services for long years. Rule 23, as amended in 1971, deprived such Assistant engineers, who had been appointed substaintively in the temporary posts of the cadre and who had become members of the service, of having their service reckoned from the date of their substantive appointment to temporary posts for the purpose of determination of seniority Rule 23 was struck down by the High Court and the decision was upheld bv the supreme Court. It was held that the rules of 19 6. before the amendment of the year 1971, conferred on such Junior Engineers a right of being treated as member of the service. It was held that the rules of 19 6. before the amendment of the year 1971, conferred on such Junior Engineers a right of being treated as member of the service. The appointment made substantiveiy on probation against a clear vacancy in a permanent posts was treated as substantive appointment. Those Assistant engineers, therefore, who had already become members of the service on being appointed substantiveiy against temporary posts had acquired the benefits of 1936 Rule for having their seniority computed from the date of their becoming members of the service. The appointment made substantiveiy on probation against a clear vacancy in a permanent post was treated as substantive appointment. These Assistant Engineers, therefore, who had already become members of the service on being appointed substantiveiy against temporary posts had acquired the benefit of 1936 Rules for having their seniority computed from the date of their becomeing members of the service. That right could not be taken away by amending the rules retrospectively. The Court held that undoubtedly the Government had the power under proviso to Article 309 of the Constitution to make rules and amend the rules giving retrospective effect. Nevertheless, such retrospective amendment cannot take away the vested rights, and the amendment must be reasonable, arbitrary or discriminatory violating Articles 14 and 16 of the Constitution. It is, therefore, quite clear that by giving retrospective effect to the amendment exercising power under the proviso-to Article 309 of the Constitution, the vested rights of the respondents were sought to be taken away, in those circumstances it was held that the amendment of 1971 to Rule 33 was bad in so far as it applied to Assistant Engineers appointed substantiveiy though against temporary posts, who became members of the service under 1936 rules. In the instant cases, as I have held earlier the petitioners acquired no vested right of appointment against the posts of Assistant Teacher. They could only be considered, if at all, when appointments were made in future, and that too on the basis of waiting lists prepared only for the sake of convenience. 24. In the instant cases, as I have held earlier the petitioners acquired no vested right of appointment against the posts of Assistant Teacher. They could only be considered, if at all, when appointments were made in future, and that too on the basis of waiting lists prepared only for the sake of convenience. 24. Similarly, in Shankarason Das V/s. Union of India (1991 (3) S C. C.47)to which I have referred earlier it was held that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire indefessible right to be appointed which cannot be legimately denied. In Surya Narain Yadav V/s. B. S. E, Board, air 1985 SC 941 the Supreme Court applied the equitable doctrine of promissory estoppel. I fail to understand how the equitable doctrine of promissory estoppel can apply to the facts of the instant cases. No material has been shown to us to persuade us to hold that any promise was ever made to the petitioners that they shall be appointed. Pursuant to the advertisement the petitioners had offered themselves for appointment, but no consideration of their relative merits, those of superior merit were appointed and the petitioners were not appointed. Their names were, therefore, kept on waiting lists so that ready lists of qualified candidates may be available if appointments were to be made in future. This can hardly be construed as a promise made to the petitioners attracting the equitable doctrine of promissory estopped. If the petitioners waited, some of them for 15 years it was not on account of any representation or promise made to them, but because they wanted to taken a chance when appointments were made in future. 25. Equally futile is the reliance placed upon the decision of the supreme Court in N T. Bevin Ketti etc. v Karnataka Public Service Commission, air 1990 SC 1233 . In that case the petitioners had been duly selected for appointment to the posts of Tehsildar after advertisement was issued by the Public Service Commission. In preparing the select list and making reservation to the various categories, the Commission followed the direction and procedure as contained in the Government order dated 6th September, 1960. In that case the petitioners had been duly selected for appointment to the posts of Tehsildar after advertisement was issued by the Public Service Commission. In preparing the select list and making reservation to the various categories, the Commission followed the direction and procedure as contained in the Government order dated 6th September, 1960. The State Government refused to apporove the list prepared by the Commission on the ground that the reservation for the Scheduled caste and Scheduled Tribe and other backward classes should have been made in accordance with the direction and procedure contained in the government order dated 9th July, it, accordingly, directed the Commission to prepare a list of successful candidates by making reservation in accordance with the provisions contained in the Government order dated 9th July, 1975. In the revised list so prepared, the name of the petitioner did not appear. They therefore challenged the validity of the revised list before the High court of Karnataka, but falied. On appeal, the Supreme Court allowed the appeal and quashed the revised list. The Court held that the directions contained in paragraph No.11 of the order dated 9th July.1975, in clear terms provided that the reservation already made for any category of posts of service and advertised before the issue of the Government Border shall remain unchanged and shall be deemed to have validly made. The Court, therefore held that in terms the Government order dated 9th July, 1975, did not effect the selection made pursuant to the issuance of notification On 23-5-1975 inviting applications. In these circumstances, it was held that the government was not justified in requiring the Commission to prepare a revised list in the light of the order dated 9th July, 1975. The question that arise for consideration before the Supreme Court in the aforesaid case does not arise fpr consideration in the instant cases. In Bevin Kents case select list had been properly prepared by the Commission. The Government refused to accept the list since it was not prepared in accordance with the Government order dated 9th July, 1975 The Court held that since the Government order dated 9th July, 1975 in terms did not apply to reservation already made for any category of posts of service, and advertised before 9th July, 1975, the Government was wrong in insisting that the list should be revised in the light of the aforeasid order. No question of vested right being defeated by promulgation of a rule or law subsequently was involved in that case. 26. It was then urged by Dr. Jha that the rules known as the Bihar primary and Middle Education Rules, 1961. were framed by the Governor in exercise of powers vested in him under Sections 54-A, 54-B, 62 and other sections of the Bihar and Orissa Local Self Government Act, 1985. It was submitted that rules 72 (6) provided for preparation of lists of suitable , candidates for appointment as teachers, Rule 72 (6) provided that minimum qualification of the cand dates shall be laid down by the Director from time to time, and preference shall invariably be given to a trained candidate over over untrained candidate. His submission was that the aforesaid rule cannot be overridden or superesded by the rules framed under the proviso to article 309 of the Constitution of India unless they are repealed. Relying upon rule 12 (6) he submitted that preference must be given to trained candidates invariably and. therefore, law must treat trained candidates as a separate class, separate from untrained candidates, and they must invariably be considered to have a preferential claim over untrained candidates. He contended that these rules were partially repealed only in respect of non-Government Schools and, therefore, applied with full force to Government schools. He also relied upon the judgment of the Supreme Court, reported in AIR 1989 SC 183 Andhra Kesari Edu. Society V/s. Director of School Edu. and submitted that having regard to the responsibilities of a teacher there was imperative need for rigorous training because the fate of tiny-tosts could not be entrusted in the hands of untrained teachers. On the other hand, the learned Advocate General submitted that the impugned rules have been framed by the Governor in exercise of power derived under the Constitution He referred to Articles 245 and 256 of the constitution of India as also entry 41, list III and submitted that in respect of State Public Services the Governor was fully empowered to frame rules under the proviso to Article 309 of the Constitution. The power exercised under Article 309 of the Constitution is legislative in character. The power exercised under Article 309 of the Constitution is legislative in character. He submitted that the rules framed under the Bihar and Orissa Looal Self Government Act operate in a different field altogether, and do not provide for the terms and conditions and method of recruitment to the public services. He submitted that there was no inconsistency between the two, 27. Section 54-A, 54-B and 62 of the Bihar and Orissa Local Self government Act provide for the constitution of District Education Fund and manner in which such fund was to be applied Rule 62 in particular provides that every District Board shall be charged with and be responsible for the maintenance and management of all primary and Middle Schools under public management within the District, the construction and repair of buildings connected therewith, the appointment (subject to the provisions of section 33), of all Masters and Assistant Masters thereof and payment of salaries of such Master and Assistant Masters. These responsibilties were conferred, subject to any rules made by the State Government under the act. The legislature passed the Bihar Non- Government Elementary Schools (Taking Over Control) Act, 1976 (Bihar Act 30 of 1976) whereunder a provision was made for the taking over of the Non-Government Elementary school under the State control. Sec.5 provided for the creation of district Education Fund and Muncipal Education Fund in the rural and urban areas of the district respectively whereunder all Government grant allotment to elementary education was to be created, and necessary expenditure incurred out of the said fund. Sec.9 which provided for repeal and savings repealed all provisions relating to non-Government Elementary schools under the Bihar and Orissa Local Self Government Act.1885. obviously, therefore, after coming into force of this Act, the rules-earlier framed to not apply to the schools taken over under the Act. The substance of the argument advanced by Dr Jha is that preference given to trained candidates cannot be taken away by enactment of rules under to proviso to article 309 of the Constitution The argument is not tenable, for more than one reason The impugned rules do not in any manner do away with the requirement of training of teachers in the schools governed by the rules. The rules do not provide for untrained teachers It provides for a method of selection, whereby even untrained candidates may be selected for aopointment, but it shall be obligatory for them to undergo the training course in the Government training Colleges. They are required to pass the said examination, and failure to do s6 will result in termination of the appointment. The principle, therefore, that the schools must have trained teachers has not been sacrified. The rules emphasised the need for training, but with a view to avoid candidates getting appointment on the basis of certificates granted by spurisous Training Colleges, the Rules prescribed a method of recruitment which makes training obligatory after selection Failure to successfully compete the training course entails termination of employment. Under the earlier rules even untrained candidates could be appointed, and it was not compulsory for them to obtain training at the latter stage The rules provide for much more, and though for the purpose of initial selection training is not a pre-condition, after selection the selected candidates are obliged to undergo and successfully complete the training, and failure to do so will result in termination of the appointment The learned advocate General is, therefore, correct in submitting that there is no inconsistency between the earlier rules and the impugued rules. 28. The learned Advocate General also rightly emphasised the fact that the Bihar and Orissa Local Self Government Act, 1885, operated in a different field altoghther. No doubt it provided for the management of schools by local bodies, and in that regard also provided for the guidelines to be followed by the appointing authority. The rules framed under the act could not go beyond the scope of the Aqt itself On the other hand, the impugned rules framed by the Govenor under the proviso to Article 309 of the Constitution of India is in exercise of legislative power refereble to entrv 41 of list II of the Constitution of India. The impugned rules provide for the manner of recruitment of teachers, which clearly falls within the legislative competence of the State legislature, and of the Governor under the proviso to Article 309 of the Constitution of India, if the State Legislature has not made laws in regard to recruitment of teachers in Government schools, the Governor is fully empowered to frame rules under the proviso to Article 309 of the Constitution. The rulrs framed under the Bihar add orissa Local Self Government Act cannot be considered to be rules regulating recruitment to cadre of teachers. Those rules have now been framed by the Governor in exercise of power vested in him under proviso to Article 309 of the Constitution which is legislative in character. I have already held that there is no inconsistency in the two rules, but even if it would be urged that there was inconsistency. I have no doubt that the rules framed by the Governor in exercise of legislative power under the proviso to Article 309 of the Constitution must prevail over the Rules framed under the Bihar and Orissa Local Self Government Act in so far as it relates to recruitment to public Services. It may be useful to remember, as was held in b S. Ysdav V/s. State of Haryana AIR 1981 SC 561 , that the State Legislature has power to pass laws regulating recuitment and conditions of service of the officers of the State. The proviso to Article 309, however, provides that until the State Legislature passes a law on a particular subject, it shall be competent to the Governor of the State to make rules regulating the recruitment and the conditions of service The Governor thus steps in when the legislature does not act. The power exercised by the Governor under the proviso is thus a power which the legislature it competent to exercise, but has. in fact, not yet exercised. It partakes of the character of the legislative, not executive, power, this is legislative power. Referring to the provision of Article 213 of the Constitution which vests in the Governor the legislative power to promulgate Ordinance, the court observed that the power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power, under Article 213 he substitutes the legislature, because the Legislature is not in Session. Under the proviso to Article 309 of the Constitution he substitutes for the legislature, because the legislature has not yet exercised its power to pass an appropriate law on the subject. 29. It is legislative power, under Article 213 he substitutes the legislature, because the Legislature is not in Session. Under the proviso to Article 309 of the Constitution he substitutes for the legislature, because the legislature has not yet exercised its power to pass an appropriate law on the subject. 29. It is no doubt true that the validity of the rules framed by the governor in exercise of power vested in him under the provision the proviso to Article 309 of the Constitution is subject to the same limitations as a law passed by the legislature. Rules so framed should not be arbitrary or unreasonable, and should not offend the provision of the Constitution. The governor must have the competence to promulgate rules have regard to the subject matter of the rules. In the instant cases, it cannot be denied that the rules regulate recruitment to the cadre of teachers in the State of Bihar. Since the Rules relate to State Public Services, the legislature, and consequently the Governor, has the competence to legislate The second question is whether the rules can be impugned on the ground of illegality or arbitrariness. It is well-settled that if a law or rule gives effect to a policy of the government, it cannot avoid scrutiny merely because it involves a matter of departmental policy which is beyond ths pile of judicial scrutiny. Such a policy, if it is contrary to any of the provisions of the Constitution or the rules giving effect to the policy offend any provisions of the Constitution, they must be struck down as being ultra vires. 30. In this connection it was submitted on behalf of the petitioners that the minimum percentage of marks which a candidate is required to obtain in the qualifying examination is fixed at 43 per cent. No relaxation is allowed as was allowed earlier to the candidates belonging to the Scheduled caste and Scheduled Tribe. It was, therefore submitted that the prescription of minimum qualifying marks applicable universally to all was arbitrary. It is difficult to uphold this contention. The Advocate general streneously argued that if a rule regulating recruitment provide for minimum qualification for selection to the post, the same cannot be struck down as being in breach of the provisions enshrined in Articles 14 and 16 of the Constitution. It is difficult to uphold this contention. The Advocate general streneously argued that if a rule regulating recruitment provide for minimum qualification for selection to the post, the same cannot be struck down as being in breach of the provisions enshrined in Articles 14 and 16 of the Constitution. The Government appreciating the need for good teachers with good academic qualification have prescribed a minimum of 45 percent marks at the qualifying test and, therefore, the rule seeks to Achieve the objective of efficiency in public services. In my view, the rule by prescribing a minimum of 45 percent marks to be obtained by candidates at the qualifying test does not unreasonably. In fact, having regard to the responsibilities and obligations of a teacher in whose hands, are entrusted the destiny of our future generations, to rules should have prescribed for even a higher percentage of marks for eligibility. Though this is a matter of policy for the Government to evolve, having regard to the situation as it prevails in this State, the Government may in fact consider whether it is not desirable to prescribe higher marks at the qualifying examination in stated to teachers appointed under the various universities, generally the rule followed is that the candidates must have obtained at least a high second class in the qualifying examination It would be beneficial to the standard of education if the rule is also suitably manded to provide for candidates securing at least 54% per sent marks in the qualifying examination to be eligible for selection. 31. It was submitted that the rules provide for written test in three subjects, namely, Hindi, General Knowledge and Arithmetic. Till the year 1978 Arithmetic was only optional. By insisting that they must also the examination in Arithmetic, the rules provide for exclusion of these who have passed their qualifying examination before the year 1978. The submission must be rejected. In my view, the rule is reasonable and a teacher is expected to know some Arithmetic, at least upto the matriculation standard, before he can be called upon to teach the students, these are matters which do not call for any interference unless they are shown to be grossly arbitrary or unreasonable. 32. Mr. Ganesh Prasad Singh, Sr. In my view, the rule is reasonable and a teacher is expected to know some Arithmetic, at least upto the matriculation standard, before he can be called upon to teach the students, these are matters which do not call for any interference unless they are shown to be grossly arbitrary or unreasonable. 32. Mr. Ganesh Prasad Singh, Sr. Advocate, submitted that the panels prepared in the different districts were not properly maintained, In some of the districts more appointments took place, with the result that more candidates from the waiting list were appointed. Situation in some of the districts were otherwise. The rules cannot be struck down on such grounds. It is for the authorities concerned to decide how may posts must be filled up in a particular year, and even if all vacancies were not filled up in a particular year, that did not confer any right on the petitioners to seek mandamus all those vacancies must be filled up. The mere fact that there were persons on the waiting list, did not, in the absence of rules to the contrary, vest in the persons on the waiting list a right to be appointed. He also submitted that if the rule was framed only with a view to avoid candidates, who had obtained training certificates from sprious institutions, the rule should have provided for a test only for such candidates, who had secured certificates from non-Government Training Colleges. The submission is mis conceived. As rightly contended by the learned advocate General, if a teachers training certificate was an essential qualification, it would not have been open to the State to make a distinction between those who had obtained such certificates from Government institutions and those who had obtained such certificates from other recognised institutions. The rules treat all trained candidates are entitled to additional marks since they possess the additional qualification of being trained candidates. 33. It was submitted that many candidates had been waiting for several years. Some of them are not now eligible for selection under the rules, being overage. The rules do not provide for relaxation of age in the case of such candidates. The rule was, therefore, unreasonable. This submission cannot be upheld The rules do not prescribe the minimum or maximum age for selection and, therefore, the question of providing for relaxation under the rules does not arise. The rules do not provide for relaxation of age in the case of such candidates. The rule was, therefore, unreasonable. This submission cannot be upheld The rules do not prescribe the minimum or maximum age for selection and, therefore, the question of providing for relaxation under the rules does not arise. The power has to be exercised by the Government and it is, therefore, that in the advertisement issued there is a provision with regard to the minimum age of the candidates. The learned Advocate General submitted that the Government had acted reasonably in fixing the outer age limit at 35 years in the general category. The earlier advertisements provided 28 years as the miximum age for selection. The government was, therefore, aware of the situation and in exercise of its executive power had made reasonable provision for such candidates. In any event; the rules cannot be held to he unreasonable on this ground It will be noticed from rule 3 of the impugned rules that the Government has been vested with the power to fix maximum and minimum age for selection and appointment. The rules cannot be said to be unreasonable If the power is exercised by the Government unreasonably or arbitrarily the executive action may be challenged. In the instant case, I do not find any justification for holding that the power under rule 3 has been exercised arbitrarily by the State Government. 34. In this connection I may notice the submission urged by Dr. Jha that the legislature cannot ignore the march of events. He relied upon the judgment of the Supreme Court, reported in A I. R.1984 S. C.161 (State of Gujarat V/s. Raman Lal Keshav Lal ). In that case the Court held that no distinction could be drawn in the matter of pay and allowences between the employees, of the Gram Pancbayat on the ground that 20 years ago some of them worked under a Municipallity, white others bad worked under the government. The Supreme Court only emphasised the reality, that whatever may have been the position in the district past, that could not jusitify ignorance of the reality that all the employees had worked for several years as employees of the Gram Panchayat and, therefore, formed one class and could not, therefore, be differentiated in the matter of grant benefits under the recommendation of the Pay Commission. Such considerations do not arise in the instant cases. 35. Dr. Jha then submitted that the rules were arbitrary. It could not be reasonably held that persons without training are better than those trained in private institutions. The rules, did not achieve the purpose. In fact, it did not even touch the problem. The inclusion of candidates already trained could not help prevent mushroom growth of bogus institutions. The submission overlooks the facts that the rules do not ignore the existence of trained candidates. In fact, additional marks are awarded to those candidates who may have obtained teachers training certificate. The Policy under the rules to make selection on the basis of marks obtained by the candidates at the qualifying examination, and then to train the untrained candidates in Government teachers Training Colleges. The rules, therefore, positively discourage the intending candidates from obtaining training certificates from bogus institutions as in the past. The mushroom growth of bogus institutions in the post was primarily on account of the fact that after obtaining a training certificate the candidates had only to get their names included in the waiting list, so that appointments may come to them automatically on the basis of the year in which they passed the training test without reference to their merit. Under the Rules they have just to complete the written test. It cannot, therefrom be said that the rules do not achieve its objective, at in past. 36. He further contended that there are hardly enough institutions in the State to train the selected candidates. He submitted that several thousand vacancies exist and it will take several years for the Government to train the teachers. The argument is hypothetical. One cannot ignore the fact that even under the rules large number of trained candidates may be selected, who may not require further training. The rules do not exclude the trained candidates and, therefore, it is not possible to predict as to how many of the selected candidates may require training in future. It is for the government to decide, having regard to the number of untrained candidates selected, as to how they should be trained. For that reason the rules cannot be held to be arbitrary. 37. It is for the government to decide, having regard to the number of untrained candidates selected, as to how they should be trained. For that reason the rules cannot be held to be arbitrary. 37. I, therefore, hold that the panels prepared in the past on the basis of illegal advertisements which infrigned Articles 14 and 16 of the constiiution of India, cannot be acted upon, particularly when this Court bad declared such panels to be illegal. Consequently, the mere fact that the names of the petitioners were included in such panels, does not vest in them a right of being appointed In fact, they acquired no right whatsoever. In any event the petitioners did not acquire a right of being appointed by reason of their names being placed in the waiting lists, because such waiting lists were only prepared for the sake of convenience and not as a mandatory requirement of any rule or law In any event, candidates from the waiting lists cannot contend indefinitely. The very fact that the appointments were made from the panels in different years, and those found to be of superior merit appointed, the selection process came to an end The waitting lists were merely lists prepared for the sake of convenience, so that in case appointments were to be made in future a ready list of qualified candidates was available. It would be unreasonable to hold that persons whose names were placed on the waiting lists are early as in the year 1975, can claim a right of appointment on the ground the selection process which had begun in 1973 had not been closed. The impugned rules do not suffer from any vice. They have been framed by the Governor in exercise of legislative power vested in him under proviso to Articles 309 of the Constitution of india In the absence of the rules being arbitrary or unreasonable or in breach of any provision of the Constitution, their validity cannot be assailed. 38. I, therefore, find do merit in any of the submissions urged on behalf of the petitioners. The writ application are, therefore, without merit and the same are, accordingly, dismissed, but with as order as to costs. Writ Application Dismissed.