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2001 DIGILAW 142 (PAT)

Vijay Kumar v. State Of Bihar

2001-02-15

S.N.JHA

body2001
Judgment S.N.Jha, J. 1. The dispute in these four writ petitions, which have been heard together, relates to appointment of Biology Teachers in the Secondary Schools in the State of Bihar. The facts giving rise to the dispute are as follows. 2. Advt. No. 1/88 was issued by the Vidyalaya Sewa Board, Bihar (in short the Board), inviting applications for appointment of Assistant Teachers in as many as 12 subjects including Biology pursuant to the requisition by the Director, Secondary Education dated 9.3.88. The number of vacancies in the Biological subject, with which (sicwe ?) are concerned in these cases, was mentioned as 400. On 15.2.90 a panel of 395 successful candidates was sent by the Board after interview etc. On 20.2.91 the Director informed the Board that the panel had been cancelled on the ground of irregularities. The Board was directed to send fresh panel. Those who had already applied pursuant to the earlier advertisement were not required to apply again. Further, those who had become age barred were to be treated as eligible. It is relevant to state here that the panels for other subjects prepared pursuant to several advertisements, mentioned in the said communication dated 20.2.91, were also cancelled; so far as Advt. No. 1/88 is concerned, the pane! for Biology subject alone was cancelled. On 29.4.95 fresh advertisement was issued in continuation of Advt. No. 1/88. Two deviations however were made from the directives contained in the communication dated 20.2.91the intending candidates were asked to apply afresh without paying any examination fee in the form of postal order, and secondly, untrained candidates were also permitted to apply contrary to the earlier advertisement as per which only trained candidates were eligible to apply. It is relevant to mention here that while petitioners of CWJC No. 9259/2000 applied pursuant to the earlier advertisement i.e. Advt. No. 1/88, the petitioners of other three writ petitions applied pursuant to the fresh advertisement dated 29.4.95. After interview etc. which took place between 19.12.97 and June 1998, the Board sent panel of successful candidates on 7.10.98. The grievance of the petitioners is that despite passage of two years time no appointment has been made from the panel. 3. No. 1/88, the petitioners of other three writ petitions applied pursuant to the fresh advertisement dated 29.4.95. After interview etc. which took place between 19.12.97 and June 1998, the Board sent panel of successful candidates on 7.10.98. The grievance of the petitioners is that despite passage of two years time no appointment has been made from the panel. 3. The case of the State of Bihar is that on 4.11.93 the Board had been asked not to send panel as vacancies had to be identified as per the new reservation policy and roster clearance had to be obtained. In defiance of the Government order, the Board sent panel of 1056 candidates on 7.10.98. On 2.11.98 the panel was returned to the Board with a direction to make suitable modifications. The Board however re-sent the same panel without doing anything of the kind. The further case of the State is that the backlog of 564 vacancies for the candidates of reserved category as per the new reservation policy have been identified as against which only 534 vacancies have been reported by the field officers. Out of the reported 534 vacancies 30% are to be kept apart for the teachers of primary/middle schools and clerks of the nationalised Secondary Schools. There being thus no vacancy, the Court should refrain from issuing direction for the appointment of the petitioners. The further case of the State is that the matter relating to appointment of Biology teachers from the impugned panel was examined by a high level committee consisting of Secretary, Law Department, Secretary, Personnel & Administrative Reforms Department and Secretary, Secondary, Primary & Adult Education Department, and thereafter the file has been sent to the Chief Minister. No final decision having been taken in the matter the writ petitions are premature, 4. The Board has challenged the stand of the State to the effect that the panel was sent by it in defiance of the Government order. It has been stated that the Government order contained in letter dated 4.11.93 (supra) related to subjects Physics, Chemistry, Mathematics, Biology, Economics, Physical Education, Bengali, Maithili, Domestic Science and Civics. The fact of the matter however is that from the similar panels sent by the Board appointments were made in other subjects except Biology. The ground on which the Government asked the Board not to send panel therefore was apparently not well founded. The fact of the matter however is that from the similar panels sent by the Board appointments were made in other subjects except Biology. The ground on which the Government asked the Board not to send panel therefore was apparently not well founded. As regards the number of recommended candidates being more than number of reported vacancies and roster clearance, it has been stated that these are matters to be sorted out at the Government level because it is open to the Government to make appointments only against the available vacancies keeping in view the roster points. Till date, the Government has not informed the Board regarding the backlog vacancies in different categories of reservation in Biology subject as per the new reservation policy. Regarding return of the panel dated 7.10.98 on 2.11.98 it has been pointed out that the same was done in view of complaints making omnibus allegations against the selection, without making any verification; in fact, even without opening the envelopes, which is apparent from bare perusal of letter dated 2.11.98 (supra) bearing no. 3075. 5. On behalf of the petitioners it has been contended that statistics regarding vacancy position are not supported by evidence. In fact, the figures mentioned in the counter affidavit regarding the total number of posts, appointments made during the different periods etc. suggest otherwise, and do not bear out the stand of the Government regarding non-availability of vacancies. In any view, the facts and figures mentioned in the affidavit refer to only nationalised Secondary Schools whereas applications were invited by the impugned advertisement for appointment in both nationalised schools as well as Project Schools. Secondly, though the petitioners may not have any idefeasible right to appointment, as contended by the State, some reason has to be shown by it for not making appointment from the panel. The State cannot be allowed to invite applications at will, conduct selection tests and after completing the process refuse to make appointment without any reason. Thirdly, the State cannot implement its new reservation policy so far as Other Backward Classes (OBCs) are concerned without identifying the creamy layer and excluding them from the zone of reservation. In any case, lastly it was contended, the appointments against backlog vacancies cannot exceed 50% for the reserved category candidates. 6. Thirdly, the State cannot implement its new reservation policy so far as Other Backward Classes (OBCs) are concerned without identifying the creamy layer and excluding them from the zone of reservation. In any case, lastly it was contended, the appointments against backlog vacancies cannot exceed 50% for the reserved category candidates. 6. In CWJC No. 9225/2000 it was further contended that in terms of eligibility clause contained in Rule 4 (Ga) of Bihar Nationalised Secondary Schools (Service Conditions) Rules, 1983 only trained candidates can be appointed as Assistant Teachers in Secondary Schools, and therefore the Board could not have permitted untrained candidates also to apply vide Advt. dated 29.4.95. The significance of this contention is that if the same is accepted, those who applied pursuant to the fresh advertisement in 1995 and were untrained like the petitioners of the remaining three writ petitions, can not be considered for appointment, thus, narrowing the zone of competition or claim for the petitioners of CWJC No. 9259/2000. Counsel for the petitioners in the other three writ petitions naturally struck a discordant note on this point. They submitted that the qualification of training had been dispensed with by resolution no. 116 dated 5.3.91. I shall deal with this aspect later. 7. Before I take up the main issue regarding existence of vacancies, I would like to deal with the contention of the Government Pleader that empanelment does not create any indefeasible right in favour of the candidates, and they therefore cannot seek any direction for their appointment. The legal position is, I believe, unexceptionable but the principle has to be applied on the facts of the case. It is well settled that anything which is arbitrary, that is to say, which cannot be explained with reasons, is violative of mandate of Article 14 of the Constitution. The State cannot be allowed to say arbitrarily thus far and no furtherin the matter of recruitment like any State action, and whenever it takes such plea it has to justify its decision or action. It is another matter that the Courtwhenever justification is shownwill not sit in appeal and examine the adequacy of the justification. The State cannot be allowed to say arbitrarily thus far and no furtherin the matter of recruitment like any State action, and whenever it takes such plea it has to justify its decision or action. It is another matter that the Courtwhenever justification is shownwill not sit in appeal and examine the adequacy of the justification. In Shankarsan Dash V/s. Union of India, AIR 1991 SC 1612 , on which heavy reliance was placed by the Government Pleader, the facts were that the appellant was selected for appointment on the basis of combined Civil Services Examination held by the Union Public Service Commission in October 1977, the name of the appellant figured in the merit list for the Indian Police Service (IPS) and the Police Services Group B. On account of his lower rank, he was offered appointment to the Delhi, Andaman & Nicobar Police Service in Group B which he accepted. As several candidates allotted to Police Service Group B did not join the position of the appellant improved and ultimately he was on top of the list. In June 1979, 14 vacancies arose in the IPS on account of non-joining by the selected candidates. The appellant by representation prayed that the said vacancies be filled. Had it been done so, being at serial no. 1 he would have been appointed to the IPS. After the request was turned down he moved the High Court and, later, the Supreme Court. In this factual back ground the Supreme Court observed, "It cannot be said that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily 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. Ordinarily 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. The process of final selection has to be closed at some stage and when a decision in this regard is accordingly taken and the process for further allotment to any vacancy arising later is closed, it is not material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments are concluded later." It is well settled that a judgment has to be understood keeping in view the facts of the case in which it has been rendered, and it would follow therefore that when applying the ratio of the judgment in another case it is only proper to see whether the facts of that case are similar or not. Though, as a preposition of law, as I have already observed above, there cannot be any dispute on the point that no selected candidate can claim any absolute or indefeasible right to be appointed; nonetheless, whenever grievance is made in this regard, the State is required to explain to the Court the reason for the non-appointment. In the case of Shankarshan Dash itself, it was clarified: "However, it does not mean that the State has licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons." 8. Two more decisions were pressed into service by the Government Pleader in this regard in the cases of State of Bihar & ors. V/s. Md. Kalimuddin & ors. (1996) 2 SCC 7 and U.P. Bhumi Sudhar Nigam Ltd. V/s. Shiv Narain Gupta, 1995 (1) All India Services Law Journal 9. In the first case an embargo had been placed by the State Government on the appointment from the panel in view of changes in the reservation policy with the stipulation to make appointment in accordance with the new policy. The Supreme Court held that the embargo was not arbitrary and the non-appointment from the panel could not be said to be arbitrary, relying on the principle laid down in Shankarshan Dash. The Supreme Court held that the embargo was not arbitrary and the non-appointment from the panel could not be said to be arbitrary, relying on the principle laid down in Shankarshan Dash. In the latter case, the panel of two candidates had been prepared. The candidate placed at serial no. 1 did not join. Later, appointment was denied to the second candidate on the ground that the project under which appointment was to be made had not commenced. The court held that this was valid ground for not making appointment and negatived the petitioners claim observing that he had no indefeasible right, relying on Shankarshan Dash. 9. Learned Government Pleader also referred to Surinder Singh & ors. V/s. State of Punjab & anr., AIR 1998 SC 18 and Haridas Parsedia V/s. Urtnila Shakya & ors., (2000) 1 SCC 81 . In the former case, as against the notified 2000 plus vacancies 7000 plus appointments had been made. In this background the court rejected the claim of the concerned persons. The latter case related to relaxation of qualification for appointment of the SC/ST candidates. Though there was provision for such relaxation for the SC/ST candidates the argument of the appellants was that as the recruitment was made only for the SC/ST candidates the rule relating to relaxation was not applicable. The contention was rejected. I fail to find any relevance of these two decisions in the facts of the present case. 10. Adverting to the present case, no reason has been assigned by the State for not making appointment from the impugned panel except that there is backlog of vacancies for reserved category candidates, though it is also stated that the final decision in the matter has not been taken by the Government. The above reason could be said to be relevant provided the petitioners belonged to general category alone and such an issue had been raised by them. Some of the petitioners, it appears, belong to the reserved categories as well. If State had appointed SC/ST/OBC candidates against the vacancies, this could have been a relevant plea and in such a situation the question of nature of the rights of the petitioners arising out of empanelment being indefeasible or not might have arisen. The instant case is however a case of total inaction on the part of the concerned respondents. 11. If State had appointed SC/ST/OBC candidates against the vacancies, this could have been a relevant plea and in such a situation the question of nature of the rights of the petitioners arising out of empanelment being indefeasible or not might have arisen. The instant case is however a case of total inaction on the part of the concerned respondents. 11. This should have taken me to the core question regarding the vacancies but I think it would be apt to dispose of a small submissionthough argued at some lengthby Dr. Sadanand Jha, learned counsel for the petitionersin CWJC 9259/2000, that unless the creamy layer amongst the OBCs is identified and excluded the reservation policy with respect to the OBC candidates cannot be implemented. Reliance in this regard was placed on Ashoka Kumar Thakur V/s. State of Bihar & ors., (1995) 5 SCC 403 : 1996(1) PLJR (SC)55, Bihar Police Mens Association through Alakh Narain Singh & anr. V/s. State of Bihar & ors., 1999 (3) PLJR 687 and Pravin Kumar Thakur & ors. V/s. State of Bihar & ors., 1999 (3) PLJR 929. In my view, the extent of permissible reservation for different reserved categories having been held to be 50% the question of identifying the creamy layer can be relevant inter se between the reserved category candidates and the creamy layer amongst the OBCs. The general category candidates or, for that matter, SC/ST candidates have nothing to do with that. Such a plea can be taken only by the candidates of any reserved category after appointment is made in the reserve categories on the ground that candidate(s) so appointed do not qualify for the benefits of reservation has he/they constitute creamy layer as per the law laid down by the Supreme Court in Indra Sawhney V/s. Union of India & ors., AIR 1993 SC 477 , though I must share the concern shown by the counsel for not taking steps to identify the creamy layer by the State of Bihar despite direction of the Apex Court as well as by this Court making the recruitment in the OBCs category vulnerable to challenge in appropriate case. 12. 12. Now coming to the core issue regarding the vacancies, the case of the State of Bihar is that there were 3876 sanctioned posts in Biology subject in the nationalised Secondary Schools in the undivided State of Bihar, against which 2060 appointments were made during different periods up to 2.10.80 (which is the date of take over of the Secondary Schools), and further, after 2.10.80 the services of 268 teachers working from before were approved and 1548 teachers were appointed up to 1987. These appointments went up to serial no. 2111 of the roster and included 563 posts which were meant for the different reserved categories on account of non-availability of suitable candidates. As against this, till date, only 534 vacancies in the Biology subject have been reported by the field officers. But as 563 vacancies are to be kept reserved to fill up the backlog in different categories there does not exist any vacancy for the petitioners. In course of hearing of the case a chart showing the vacancy position as indicated above was produced. Later, the relevant facts and figures were mentioned in the supplementary counter affidavit. It may be apposite to mention the figures at one place as under : (a) Total number of sanctioned posts (in undivided Bihar) 3876 (b) Total number of teachers appointed and/or whose services were appointed before 2.10.80 2060 (c) Total number of teachers whose services have been approved after 2.10.80 268 (d) Total number of teachers appointed between 2.10.80 and 1987 1548 (e) Total number of back-log vacancies 563 (f) Uptodate vacancies as reported 543 13. Going by the figures of appointments etc. made during the different periods as mentioned in the above chart, it would appear that the appointments against all 3876 posts stood completed by 1987 because if we add the figures mentioned at serial nos. (b), (c) and (d), the total comes to 3876. 534 reported vacancies referred to in the affidavit, perhaps,. arose after 1987. In fact in para 9 of the supplementary affidavit it has been stated : "That the last appointment in Biology subject was made in 1987 and thereafter till date only 534 vacancies in Biology subject have been reported by the field officers." 14. 534 reported vacancies referred to in the affidavit, perhaps,. arose after 1987. In fact in para 9 of the supplementary affidavit it has been stated : "That the last appointment in Biology subject was made in 1987 and thereafter till date only 534 vacancies in Biology subject have been reported by the field officers." 14. In the rejoinder affidavit filed by the petitioners in CWJC No. 8926/2000 it has been stated that even according to the case pleaded by the State in its main counter affidavit, there are 602 vacancies available. It may be mentioned here that the figure 602 has been worked out by deducting 30% of the posts/vacancies i.e. 1163 (reserved for primary/middle school teachers and clerks in the secondary schools) and, further, deducting 2111 posts shown in the chart in para 15 of the counter affidavit, from the total sanctioned posts i.e. 3876. Considering that the extent of discrepancy in the stand of the Stateaccording to which number of existing vacancies is 534and the stand of the concerned petitionersaccording to whom the number of vacancies is 602, is not very large, I do not wish to detain myself on the point and decide the dispute. The method applied by the concerned petitioners in coming to the conclusion that 602 posts are available, does not appear to be correct, for the figure 2111 shown in the column Total number of posts in para 15 of the counter affidavit, perhaps, refers to the serial number of the roster, and all that the chart in para 15 seeks to convey is that out of 2111 posts (meant for different categories) 1548 appointments had been made (which figure corresponds to the number of appointments made between 2.10.80 and 1987 as mentioned in the chart extracted above), leaving backlog of 563 vacancies. I am inclined to proceed on the assumption that the vacancy figure shown by the State is correct. 15. it is relevant to mention here that though the counter affidavits filed by the State do not adequately explain as to how the backlog of 563 vacancies has been worked out, Shri Rajendra Prasad Singh, learned counsel for the petitioners in CWJC No. 2994/2000 fairly gave details in this regard. He pointed out that appointments have been made in Biology subject at different times pursuant to different advertisements leaving the backlog for reserved category on account of non-availability of suitable candidates. He pointed out that appointments have been made in Biology subject at different times pursuant to different advertisements leaving the backlog for reserved category on account of non-availability of suitable candidates. From his submissions the position regarding the backlog seems to be as follows : No. of Advt. Posts Advertised Appointments Made Backlog 1/81 (1st Advt.) 1500 1008 492 1/83 (2nd Advt.) 323 235 91 1/84 (3rd Advt.) 285 214 71 654 3/83 & 2/85 (Spl. Recruitment for SC/ST) 91 (-) 91 563 The above chart shows how backlog vacancies for SC/ST got accumulated over the years and finally by 1987 it was 563. Though it has not been admitted by the petitioners in so many words that the above backlog of vacancies is meant only for the reserve category candidates, having regard to the fact that the figures of posts advertised and appointments made etc. leaving the backlog of 654 or 563 vacancies tally with the figure (of backlog) mentioned by the State, I proceed on the assumption that number of backlog vacancies is 563 and the number of reported vacancies is 534 as mentioned above. 16. The question which thus arises for consideration is two foldwhether the State should at all be directed to fill the reported vacancies from the impugned panel, and secondly, whether the reserve category candidates alone should be appointed against those vacancies. I have observed above that even though the petitioners as empanelled candidates do not have any vested indefeasible right to be appointed from the panel, they certainly have a right to be considered for such appointment, and in the absence of any cogent reason or ground the State cannot legitimately deny them that right. The only plea of the State, as noted above, being the existence of backlog, the moot point for consideration, in my opinion, is whether the State should be allowed to fill the vacancies from amongst the reserve category candidates. The point is not res integra. It stands answered by decision in the well known case of the Indra Sawhney V/s. Union of India, AIR 1993 SC 477 . The point is not res integra. It stands answered by decision in the well known case of the Indra Sawhney V/s. Union of India, AIR 1993 SC 477 . The majority stated the law as under (page 567 of the Report) : "True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go i.e., in a year or two. The position can be better explained by taking an illustration. Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and other Backward Classes is 50% which means that out of the 1000 posts, 500 must he held by the members of these classes i.e. 270 by other backward classes, 150 by scheduled castes and 80 by scheduled tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50 of a short fall of 220. Similarly the number of members of the Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, short fail of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of year until the number of members of all backward classes reaches 500 i.e. till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to be each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed the eclipse the other. It must be remembered that the equality of opportunity guaranteed by clause (1) is to be each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed the eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be." In view of the above statement of the legal position I have no difficulty in rejecting the plea of the State that the existing vacancies can be filled from the reserve category candidates alone. Their recruitment cannot exceed 50% of the vacancies. 17. In this connection submission was made regarding the carry forward of the vacancies. The provisions contained in Section 4(b)(d) of the Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 came in under reference. It was submitted that with the passage of time after expiry of three years the vacancies in the reserved categories could not be carried forward. This submission is totally misconceived. It is not in dispute that even prior to coming into force of the Reservation Act there was provision relating to carry forward of the unfilled vacancies under executive circulars of the State Government. Only in the event of non-availability of the suitable candidates upto three recruitments, the vacancies could be treated as general with the approval of the Personnel and Administrative Reforms Department, then called Appointment Department, Section 4(b)(d) refers to three "recruitment years" and not three calendar years. No recruitment having been made after coming into force of the Reservation Act, I do not think the vacancies in existence at the time of commencement of the Act can be treated as released. We can take judicial notice of the fact that the recruitment to posts and services in the State of Bihar is not regularly made, muchless every year, in many cases appointments are not made for years together. In such a case holding that the posts in the reserved category got released after three calendar years would make the provision nugatory and in fact defeat the very purpose of reservation. 18. In such a case holding that the posts in the reserved category got released after three calendar years would make the provision nugatory and in fact defeat the very purpose of reservation. 18. Nonetheless all 534 vacancies cannot be treated as carried forward vacancies in view of the law laid down in Indira Sawhneys case. The following passage from the decision (at page 569 of the Report) should suffice : "We are in respectful agreement with the above statement of law. Accordingly, we overrule the decision in Devadasan ( AIR 1964 SC 179 ). We have already discussed and explained the 50% rule in paras 93 to 96. The same position would apply in the case of carry forward rule as well. We, however agree that a year should be taken as a unit or basis as the case may be, for applying the rule 50% and not the entire cadre strength. We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies should not be filled by unreserved category candidates but shall be carried forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry forward rule, in whatever manner it is operated, should not result in breach of 50% rule." 19. From the above discussion it follows that the State is obliged to consider the cases of the petitioners who include, as mentioned above, candidates in both unreserved and reserved categories following 50% rule for their appointment against the existing vacancies. I do not wish to go into the arithmetic of the vacancies though as stated above, I have accepted the figures given by the State to be correct for the purpose of deciding these cases. Some more vacancies presumably might have occurred in the meantime. More importantly, as the number of vacancies has been worked out in the undivided State of Bihar and now a portion thereof has to be allocated to the State of Jharkhand, it is clear that the vacancies have to be re-worked out. Further, 30% of the available vacancies have to be left apart for the Assistant Teachers of Primary/Middle Schools and Clerks of the Secondary Schools. Further, 30% of the available vacancies have to be left apart for the Assistant Teachers of Primary/Middle Schools and Clerks of the Secondary Schools. At the same time nothing whatsoever has been stated by the State about vacancies in the Project Schools. The advertisement was for both the nationalised schools and the project schools. Nothing contrary has been stated in the counter affidavit. The State is thus required to calculate the number of vacancies and consider the case of the petitioners and others similarly situate for their appointment from the panel against those vacancies in accordance with law. Having regard to the number of vacancies and the fact that on account of non-availability of teachers, teaching in Biology in the schools must be suffering, it is proper that the whole exercise is completed at the earliest, say within a period of three months. I direct accordingly. 20. Before I close the case, I must refer to the controversy regarding untrained candidates being eligible for appointment. Submission in this regard was made by Dr. Sadanand Jha appearing for the petitioners in CWJC No. 9259/2000. Counsel for the petitioners in other three cases on the other hand submitted that vide resolution no. 116 dated 5.3.95 the Government dispensed with the requirement of training as a qualification for appointment of Assistant Teachers in Primary as well as Secondary Schools with provision for in-service training after appointment. According to Dr. Sadanand Jha a provision of the rule could be modified only by amending the relevant rule, as expressly provided in rule 20(2) of the 1983 Rules, and not by executive order as purportedly done. It was pointed out in reply by counsel in other cases that the validity of the above decision/resolution dated 5.3.91 has been upheld by a Division Bench of this Court, and later, by the Supreme Court. 21. I think, it is futile to get embroiled in this controversy for deciding these cases. Such a dispute can more appropriately be raised by unsuccessful candidates after appointments are made of untrained candidates if so advised. The need of the hour is to make appointments and fill up the vacancies. 21. I think, it is futile to get embroiled in this controversy for deciding these cases. Such a dispute can more appropriately be raised by unsuccessful candidates after appointments are made of untrained candidates if so advised. The need of the hour is to make appointments and fill up the vacancies. But prima facie, I must observe that the petitioners have participated in the selection without any demur, they are bound by terms of the advertisement and may not therefore be allowed to urge that the provision dispensing with the requirement of training as a qualification was illegal, which apparently was in consonance with the above said resolution dated 5.3.91. 22. In the result, these writ petitioners are allowed with the observations and directions mentioned above. There will be no order as to costs.