JUDGMENT S. J. Mukhopadhaya, J 1. The petitioners filed the writ petition for declaration that the Rules framed by the Respondent-State or Bihar under proviso to Article 309 of the Constitution of India, promulgamated vide Notification dated 5th May, 1993, as ultra vires and without jurisdiction. It was also prayed for declaration that the procedure relating to recruitment of teachers in Primary schools, as provided by Bihar & Orissa Local Self Government Act, 1885, Bihar & Orissa Primary Education Act, 1919 and rules framed there-under, specially Bihar Primary and Middle Education Rules, 1961, will prevail over all other rules in the matter of appointment to the posts of teachers in Primary schools. In effect, the petitioners also challenged the advertisement dated 8th October, 1991, published in the Newspaper 'AAJ', by which applications were called for appointment against 25,000 posts of Primary teachers in different schools, in different districts of the State of Bihar. 2. At the time of hearing of the case, the counsel for the petitioners did not press the argument relating to the validity of the rules aforesaid, but advanced his argument with respect u) the last prayer i.e. challenge to the advertisement dated 8th October, 1991 and procedure followed for such appointment in pursuance of the said advertisement and the selection that has been made. It is for the said reason this Court has taken into note only such relevant facts, which has been placed to assail the advertisement. 3. Before dealing the factual aspect, certain admitted facts have been taken into note. In the State of Bihar, there are different Primary/Elementary schools run by the State Government. The cadre of teachers of such Primary/Elementary schools are district wise cadre. The appointment to the post of teachers are made by the order of the District Superintendent of Education, on the recommendation of a Committee. Previously, there was no rule framed under the provisions of Article 309 of the Constitution of India for appointment to the post of teachers in Primary/Elementary schools. Such appointments used to be made taking into note the Acts, namely, Bihar & Orissa Local Self Government Act, 1885 followed by Bihar & Orissa Primary Education Act, 1919, both pre-independence Acts. However, the rules in terms with the aforesaid Act, 1919 was framed in the year 1961, known as Bihar Primary/Middle Education Rules, 1961. Such appointments used to be made taking into note the Acts, namely, Bihar & Orissa Local Self Government Act, 1885 followed by Bihar & Orissa Primary Education Act, 1919, both pre-independence Acts. However, the rules in terms with the aforesaid Act, 1919 was framed in the year 1961, known as Bihar Primary/Middle Education Rules, 1961. The District-wise panel used to be prepared from amongst the trained teachers, year wise, out of which the posts of Assistant Teachers of primary schools of a district used to be filled up. The State of Bihar, for the first time, promulgamated rule under the proviso to Article 309 of the Constitution of India for appointment to the post of Teachers in the Primary/ Elementary schools which was published vide notification dated 30th September, 1991. By the said Rule of 1991, the mode of selection for appointment to the post of Teachers was laid down. It stipulated advertisement and a selection through written test to be held with respect to three subjects. While marks obtained by a person in the written test was the main criteria laid down in the matter of preparation of merit list/panel, certain additional points were also provided with respect to trained teachers. For example; two additional points were to be included to the general trained teachers, while such three points were to be further included to the trained teachers having obtained more than 60% marks in the Teachers Training. On the basis of such panel the appointment order was to be issued by District Superintendent of Education of a particular district. While the aforesaid 1991 Rule was invogue, the Respondents came out with impugned advertisement dated 8th October, 1991 in different newspapers, including 'AAJ' Patna for filling up about 25,000 posts of Assistant Teachers which were lying vacant in different Primary/Elementary schools in the State of Bihar. Some of the petitioners, a number of other persons, including private Respondents and intervenor Respondents, applied in pursuance of said advertisement of 1991. However, the written test was not conducted immediately and the matter remained pending for about 1½ years. It was in the year 1993 the Respondent State of Bihar again came out with another Notification dated 5th May 1993 under proviso to Article 309 of Constitution of India some of the provisions of 1991 Rules were amended vide this 1993 Rules. However, the written test was not conducted immediately and the matter remained pending for about 1½ years. It was in the year 1993 the Respondent State of Bihar again came out with another Notification dated 5th May 1993 under proviso to Article 309 of Constitution of India some of the provisions of 1991 Rules were amended vide this 1993 Rules. The substantive amendments which were made by 1993 Rules were to the following effects:- (a) The selection test was entrusted to Bihar Public Service Commission; (b) The preliminary test was introduced to screen the candidates to appear in the main exam; and (c) It was stipulated that the merit list to be prepared on the basis of the main examination and the additional marks by way of preference to the trained teachers to be added in the marks obtained in the main examination. Subsequently, in pursuance of direction of the Court in CWJC Nos. 5490/82 and 3882/ 88, it was decided by the State Government vide letter dated 7th August, 1993 to give opportunity to such candidates whose names were appearing in the earlier panel, but could not apply in pursuance of 1991 advertisement, being overage, by relaxing their age. However, in the meantime, the B.P.S.C. who took up the matter of selection for appointment came out with a notice on 20th September, 1993 published in different newspapers, including 'AAJ'. In the said notice, while the quota of reservation was shown with respect to one or other reserved category, it was mentioned that the persons who have applied from a particular district, he will be treated to be applicant and aspirant for appointment to that particular district from where he has applied. The date of preliminary examination was notified, which was scheduled to be held on 9th October, 1993. The petitioners, private Respondents, intervenor Respondents and a number of persons appeared in the said preliminary examination held on 9th October, 1993. However, prior to publication of result of the said preliminary examination, the B.P.S.C. came out another notice on 1st November, 1993, published in the newspaper, stating to be "Primary Teachers (Preliminary) Competitive Examination, 1991-Advertisement". By the said advertisement, applications were called for, in pursuance of the decision of the State Government dated 7th August, 1993, which was issued be virtue of the order of this Court. By the said advertisement, applications were called for, in pursuance of the decision of the State Government dated 7th August, 1993, which was issued be virtue of the order of this Court. The persons whose names were appearing in the earlier panel (which was cancelled in the year 1989), but could not apply in pursuance of 1991 advertisement, having become overage they were given opportunity to apply and to appear in the Supplementary Preliminary Competitive Examination, held. The result of both the preliminary examinations were published in the newspapers, in different phases, district wise, in between 15th March, 1994 and 16th April, 1994. The persons who came out successful in the said preliminary examinations were asked to appear in the main examination held on 29th May, 1994. After the said main examination, the final result of successful candidates were published district wise for appointment in their respective district cadre, from where such persons applied. The results of main examination were published since 28th June, 1994. 4. It was at this stage, the present writ petition was filed by the petitioners. No individual persons were impleaded as party Respondents in the writ petition, but as a number of persons were appointed in the meantime, the petitioners sought permission to implead some of the successful candidates already appointed, as party-Respondents in the present writ petition, to implead them in the representative capacity of successful candidates. The intervenors, who are also successful candidates and have been appointed, they also intervened. 5. When the case was taken up, on query from this Court, the counsel for the petitioners stated that about 18000 appointments have already been made by the time of filing of the writ petition and about 6000 to 7000 appointments have been made during the writ petition. 6. Dr. Sadanand Jha Senior Counsel for the petitioners mainly stressed the following points and advanced the following arguments to assail the selection and appointments:- (a) The process of selection having started in the year 1991, on the basis of 1991 Rules. the Respondents should have completed such selection and should have made appointments on the basis of old Rules (1991 Rules) and not on the basis of new Rules (1993 Rules). In this Connection, he relied on the decisions of the Supreme Court in the case of A. A. Calton Vs. The Director of Education (AIR 1983 S. C. 1143); V. V. Ramgaiah Vs. In this Connection, he relied on the decisions of the Supreme Court in the case of A. A. Calton Vs. The Director of Education (AIR 1983 S. C. 1143); V. V. Ramgaiah Vs. J. Sreenivasa Rao (AIR 1983 S. C. 852); followed by the case of P. Mahendra and others Vs. State of Karnataka and others (AIR 1990 S. C. 405) (b) By confining the candidature of applicants to a particular district from where applications were tendered and thereby preparing separate district-wise merit list from amongst candidates of a district alone, though the advertisement was published for combined competitive examination with respect to all the posts of Assistant Teachers of the State of Bihar, Respondents violated the Articles 14 and 16 of the Constitution of India. In this connection, he relied on the decision of this Court in the case of Sri Chakradhari Sharan Singh and others Vs. Union of India and others, reported in 1991 (2) PLJR 767; P. Rajendra and others Vs. State of Madras and others and analogous cases, reported in A.I.R. 1968 S. C. 1012. It was suggested that the legislative power to create residential qualification for employment is exclusively conferred on Parliament, and not on the State. The counsel relied on the decision of the Supreme Court in the case of A.V.S. Narsimha Rao and others vs. State of Andhra Pradesh and another, reported in A.I.R. 1970 S. C. 422. He also relied on the decision of this Court reported in 1986 PLJR 34 (Bihar School Exam. Board & another Vs. Nand Kishore Tamakhuwala). (c) The reservation made in pursuance of the impugned selection is bad, as the percentage fixed for particular cadre cannot be varied or changed on the basis of the reservation policy and roster, on the ground that some of the reserved candidates have been appointed against general seats. At this stage, it is to be taken into note that the petitioners have stated that there are certain districts like Santhal Parganas and other districts where all the posts of the district cadre of Assistant Teachers have been tilled up by the Respondent-State of Bihar from amongst reserved category persons, on the basis of roster prepared for such reservation and the vacancies. This fact has not been disputed by the Respondent State of Bihar. This fact has not been disputed by the Respondent State of Bihar. In the aforesaid context, the counsel for the petitioners relied on the decision of the Supreme Court in the case of R. K. Sabharwal and others Vs. State of Punjab and others, reported in A.I.R. 1995 S. C. 1371. Ajit Singh Januja and others Vs. State of Punjab and others, reported in 1996 (1) P.L.J.R. 81 (S C) and Union of India and others Vs. V. S. Virpal Singh Chauhan and others, reported in 1995 (6) S.C.C. 684 (d) Even if it is held that the amendment vide 1993 Rules was applicable with respect to 1991 advertisement then in that case, though the procedure should have been followed by the B.P.S.C. to make selection, but the substantive Rules of 1991 was to be followed in the matter of preparation of merit list/the panel; even at the preliminary examination stage. It was stated that in the preliminary examination, the list was prepared on the basis of marks obtained in the test, without adding the additional points in favour of trained teachers, in terms with 1991 Rules, which in effect has affected a number of trained teachers to compete in the preliminary examination. 7. The argument on behalf of the Respondents was mainly advanced by the learned Advocate General which was adopted by the other Respondents: including the intervenor Respondents. According to the counsel for the State, the selection procedure having already been completed, about 25,000 appointments of Assistant Teachers have already been made. In absence of all the teachers already appointed, this Court should not interfere with the selection, at this stage. It was contended that even if it is presumed that one or other mode of procedure was not strictly followed, this Court should not set aside the selection and appointment. The learned Advocate General pointed out that since 1991 i.e. for about five years the massive task of selection was taken up by the Respondents. Altogether, more than 9 (nine) lacs applications were received for appointment against 25,000 posts in different districts of the State of Bihar. There was no possibility to prepare such huge merit list of more than 9 (nine) lacs applicants and so a preliminary screening test was conducted. Altogether, more than 9 (nine) lacs applications were received for appointment against 25,000 posts in different districts of the State of Bihar. There was no possibility to prepare such huge merit list of more than 9 (nine) lacs applicants and so a preliminary screening test was conducted. According to him, the preliminary test was so conducted not for the purpose of adjudging the merit vis-a-vis of other candidates, but to screen out the candidates for allowing them to take part in the main competive examination. It was submitted that the preliminary test being a screening test and not being a test to decide the merit vis-a-vis candidates, there was no question of providing additional marks/points in such examination, in favour of trained teachers, in accordance with 1991 Rules. He relied on the decision of Full Bench of Allahabad High Court, reported in 1994 L.I.C. 2058 to substantiate his argument that the preliminary lest to screen the candidates was permissible. The learned Advocate General also relied on the decision of Supreme Court in the case of Ashok Kumar Yadav and others Vs. the State of Haryana and others, reported in A.I.R. 1987 S. C. 454 and submitted that even the Supreme Court, while holding the procedure of selection as arbitrary did not set aside the appointments that had already been made. So it was suggested that this Court should not interfere with the policy decision which is the administrative matter, though suggestion can be mader its writ Jurisdiction so far as the procedure of selection is concerned. He relied on the decision of the Supreme Court in the case of Asif Hamid and others Vs. State of Jammu & Kashmir and analogous cases, reported in A.I.R. 1989 S. C. 1899. 8. So far as reservation is concerned, the learned Advocate General submitted that the posts have been filled up taking into note the total vacancy and the reservation policy of the State Government. However, he was not in a position to make any specific averment as to whether total vacancy of a particular year of a particular district have been reserved or not. 9. The main stress was made by the learned Advocate General on the principle of acquiescence. However, he was not in a position to make any specific averment as to whether total vacancy of a particular year of a particular district have been reserved or not. 9. The main stress was made by the learned Advocate General on the principle of acquiescence. In this connection, he relied on Supreme Court decision in the case of Jai Singh Dalal and others vs. State of Haryana and another reported in 1993 LIC 844 and decision of Supreme Court in the case of Om Prakash Shukla Vs. Akhiles Kumar Shukla and others reported in AIR 1986 Supreme Court 1043. It was contended that once the petitioners took part in the preliminary test and/or main test thereafter they having failed and/or having not been recommended, cannot challenge the procedure of selection and appointment. 10. So far as appointment in a particular district is concerned, the learned Advocate General submitted that the cadre of Assistant Teachers of Primary Schools being district cadre, the cases of applicants of a particular district was confined to that particular district for consideration of their cases for appointment against the post available in the particular district. The learned Advocate General further pointed out from the notice published in the newspaper on 20.9.93 and submitted that candidature of individual applicants were restricted to the district cadre, where they had applied. The same was issued on 20.9.93. So, after taking chance in the examination, the petitioners cannot challenge the same indirectly in the present writ petition. 11. With respect to the case laws referred by the counsel for the petitioners, according to the learned Advocate General, they are not applicable in the present case as in those cases applications for appointment of candidates were confined amongst candidates belonging to a particular district, without giving opportunity to the candidates of other districts, which is not the position in the present case. 12. From the pleading made by the parties and the submissions made by their counsels, it appears that certain irregularities were committed in the matter of selection. The initial advertisement was published by the respondent-State on 8.10.91. By the said advertisement, applications were called for from different candidates for consideration of their cases against different teaching posts of Assistant Teachers, which were lying vacant in different Primary/Elementary schools in whole State of Bihar. The initial advertisement was published by the respondent-State on 8.10.91. By the said advertisement, applications were called for from different candidates for consideration of their cases against different teaching posts of Assistant Teachers, which were lying vacant in different Primary/Elementary schools in whole State of Bihar. The said advertisement of the year 1991 never confined the applicants to apply for a particular district for the purpose of consideration of their cases. The advertisement gave an idea that the examination was a combined competitive examination for appointment against different posts of Assistant Teachers, available in different district cadres. It is for the said reason each and every applicants submitted their application forms with an idea that their cases will be considered for appointment in each and every cadre. 13. It is to be taken into note that the eligible candidates haw a right of consideration for their appointment in anyone or other district cadre of Assistant Teachers in the elementary/primary schools. The respondent-State cannot force a parson to confine their application for a particular district cadre at the time of application. Otherwise the same will amount to restricting a candidate from consideration of case for appointment against the other cadre posts of other districts, and will be arbitrary, against the provisions of Articles 14 and 16 of the Constitution of India. However, it was open to the each and every district cadre authority to come out with separate advertisements for filling up of the posts of Assistant Teachers in their respective district cadres, fixing the date of examination on a common date. In such a situation, it was the candidate, who could have decided as to in which examination he wilt appear for consideration of case for such appointment. But such was not the position in the present case. The restriction was imposed by the State Government, for the first time by notice dated 20.9.93 after the applicants submitted their applications for consideration of their cases. This restriction was itself arbitrary, and was violative of Articles 14 and 16 of the Constitution of India. The respondents are well advised not to restrict the candidates to apply for a particular district cadre in future, if they come out with a common advertisement for appointment to the post of Assistant Teachers for all the district cadre and/or more than one district cadre. 14. The respondents are well advised not to restrict the candidates to apply for a particular district cadre in future, if they come out with a common advertisement for appointment to the post of Assistant Teachers for all the district cadre and/or more than one district cadre. 14. So far as the reservation matter is concerned the stand of the State Government is also not clear. They have not denied the averment of the petitioners that is one or other districts like district of Dumka, all the posts of Assistant Teachers have been filed up from amongst the reserved category candidates, in pursuance of the impugned advertisement. In the case of Indra Sawhney etc. V. The Union of India and others, reported in AIR 1993 Supreme Court 477, the Supreme Court held that more than 50 of reservation of posts is violative of Articles 14 and 16 of the Constitution of India. Further, in the case of R. K. Sabharmal and others Vs. State of Punjab and others reported in AIR. 1995 Supreme Court 1371, the Supreme Court held that the percentage for reservation is to be worked out in relation to a number of posts forming strength of the cadre, and the concept of vacancy has no relevance in operating percentage. In the case of Ajit Singh Januja and others Vs. State of Punjab and others, reported in 1996 (1) PLJR 81 (S C), the Supreme Court held that once the prescribed percentage of posts is filled up, thereafter the roster does not survive. Thereby it held that if the quota is full then in that case, rota (roster) is not applicable. Further, in the case of Inderswani (supra) the Supreme Court held that in a particular given year, even if there are carry forward vacancies, all the vacancies cannot be filled up from amongst the reserved category candidates. Such being the position, the respondent-State has failed up satisfy as to how all the vacant posts of one or other particular district cadre were filled up only from amongst the reserved category candidates, out of the advertisement issued in the year 1991-93. This, in effect has affected such candidates, who applied for the unreserved seats, from such particular district, wherein all the posts have been filled up from reserved category persons. 15. This, in effect has affected such candidates, who applied for the unreserved seats, from such particular district, wherein all the posts have been filled up from reserved category persons. 15. Now the question arises as to what will happen to the present selection and large scale appointed that has already been made, in view of the aforesaid irregularities/illegalities committed by the respondents. The learned Advocate General pointed out that massive steps were taken to conduct the aforesaid competitive examination. Altogether more than nine lacs applications were scrutinised. All of them were given opportunity in the screening test. Thereafter about 25% people came out successful. With respect to them the main test was conducted. By the time, the case was taken up about all 25,000 posts have been filled up. In fact, by the time, the writ petition was filed as stated by the counsel for the petitioner, about 18,000 persons had already been appointed. All those persons, including those 18,000, who were appointed prior to the filing of the writ petition, they are not party in the present writ petition. 16. The fact that the respondent will conduct one screening test, known as preliminary test, and another test as main test, came to the notice of the applicant, including the petitioners as back as on 20.9.93, when notice was published by B.P.S.C. in the newspaper. On the said date, all the candidates, inducting the petitioners, they came to know that their candidatures have been restricted for or other district. In spite of such knowledge, none of the candidates, including these petitioners, choose to move before the court of law challenging such criteria laid down by the respondents. It is only when a large number of persons have been appointed, including those 18,000 persons who were appointed prior to the filing of the writ petition, the petitioners moved before this court, without impleading them as respondents. Further, it will be evident that the petitioners and others, in spite of their knowledge of the said notice dated 20.9.93, appeared in the preliminary examination held on 9.10.93 or 1.12.93. It is only when they either failed in the preliminary examination, or when they were not declared successful after the main test, the petitioners choose to move before this court. It is only when they either failed in the preliminary examination, or when they were not declared successful after the main test, the petitioners choose to move before this court. In this background, it is not only the writ petition suffers from delay and laches, the petitioners are also not entitled to challenge the same at this stage, the principle of acquiescence being applicable in their cases. The Supreme Court in the case of Om Prakash Shukla (supra) refused to grant relief, taking into note that the said petitioner appeared in the examination without protest and filed a petition only after realising that he would not succeed in the examination. Such is the position, in the case of these petitioners. 17. In the aforesaid background, in spite of the fact that certain irregularities/illegalities were committed by the respondents in the matter of selection and appointment in pursuance of 1991-93 advertisement, the petitioners having taken part in such examination, with their open eyes that their candidatures will be considered for a particular district cadre through a preliminary test followed by main test, this Court will not exercise its discretion under its writ jurisdiction to set aside the selection and appointments in question. 18. Accordingly, the writ petition is dismissed. There will be no order as to costs. I agree. Petition dismissed.