Judgment :- (1.) Since issues involved are common the writ petitions have been heard analogously. However, the facts in W.P. 15800(W) of 2009 are referred to for the sake of convenience. In this writ petition the petitioners have challenged the notification dated 6th August, 2009 published in a newspaper, which according to them, cancels the selection process initiated in the year 2006. Prayer has been made for a direction upon the authorities of the State including the Director of School Education (Primary), West Bengal and the District Primary School Council, South 24 Parganas (in short the Council), the respondent nos. 2 and 5 respectively, to complete the selection process for the posts of primary school teachers in different districts which had commenced in the year 2006 under the provisions of the West Bengal Primary School Teachers Recruitment Rules, 2001 (for short 2001 Rules) by holding the written test against 10 marks with regard to the candidates already sponsored by the employment exchange and to give employment to the selected candidates against the vacancies notified to be filled up on the basis of such selection. Interim orders have been prayed accordingly. (2.) The facts in brief are that during 2006 the names of the petitioners were sponsored by the Canning Employment Exchange to the Council for appearing in the selection test for the posts of primary school teachers under the non-trained category. Thereafter, the Council requested the petitioners to submit their bio-data including the academic qualification. Accordingly, the petitioners submitted their respective bio-data along with the testimonials within the time fixed by the Council. Under the 2001 Rules as amended by the notification dated 16th December, 2005, after the names are obtained from the employment exchange and candidates produce the testimonials/certificates for computation of marks, the Council shall compute the marks in terms of Rule 9 of 2001 Rules which speaks of allotment of 65 marks against the academic qualifications for training 22 marks and for co-curricular activities 3 marks ; totalling 90 marks. 10 marks is earmarked for written test. As stated in the petition, after receiving the bio-data, 90 marks test of the petitioners have been completed by the Council and test for 10 marks is yet to be conducted. At the time of initiation of the selection process there were large number of vacancies. 10 marks is earmarked for written test. As stated in the petition, after receiving the bio-data, 90 marks test of the petitioners have been completed by the Council and test for 10 marks is yet to be conducted. At the time of initiation of the selection process there were large number of vacancies. According to the petitioners, there were 3000 vacant posts of primary teachers in the district of South 24 Parganas. The employment exchange sponsored the names of the candidates at the ratio of 1:20. At that time, law was -an untrained candidate was to compete along with the other candidates. Though there was no order of injunction against the recruitment process and since remaining part of the selection process was kept in abeyance, the petitioners went to the office of the Chairman South 24 Parganas District Primary School Council when they were intimated that a new process would start by making advertisement for recruitment of primary school teachers. Thereafter, advertisement was published on 6th September, 2009 which is under challenge in the present writ petitions. (3.) The main points of challenge are that the advertisement is an attempt to abandon the earlier process initiated under the 2001 Rules. Unless statute empowers, the amended Rules cannot be given a retrospective effect. However, amended Rule 6 is an attempt in that direction. Section 106 of the West Bengal Primary Education Act, 1973 (for short 1973 Act) does not empower retrospective operation. So the ongoing process initiated in 2006 cannot be affected. Since as per Rule 8(3) of 2001 Rules, the vacancies existing on date plus vacancies anticipated to arise against the sanctioned strength in course of next twelve months may be taken up as total vacancies while sending the requisition to the employment exchange, vacancies up to 2007 are to be taken into consideration by the Council for filling up the vacancies of primary teachers and those vacancies cannot be covered by the 2009 notification. The submission on behalf of the State that the process was held up due to an interim order in a matter relating to public interest litigation is without basis as there was no such restraint on the recruitment process as evident from paragraph 10 of the of the judgment in Tulsi Bakshi and another v. State of West Bengal and others reported in 2008(4) Cal HN 789 : (2008)1 WBLR (Cal) 765. Moreover, the plea of interim order cannot hold good as the Council had itself called upon the candidates to submit bio-data as evident from annexure P-l to the writ petition (W.P. 15800(W) of 2009). Accordingly, submission is, as the petitioners who had sent their bio-data pursuant to the requisition in the year 2006 form a slot by themselves, the recruitment process remains untouched by the present notification. Therefore, prayer has been made for restraining the respondents from cancelling the selection process initiated in 2006 for the post of primary school teachers in different districts of the State and for filling up the vacancies for which the selection was initiated in the said year. (4.) Further, submission has been that amendment is contrary to the provisions contained in the National Council of Teachers Education Act, 1993 and Regulations framed thereunder. Reference has been made to Article 254, Schedule VII and various Entries in Lists I, II and III of the Constitution of India. Reliance has been placed on a number of decisions of Supreme Court and High Court. (5.) Learned Advocate General appearing on behalf of the respondents has submitted that the process was initiated in 2006 when names were sponsored by the employment exchanges. According to the State mere furnishing applications do not give the petitioners a right to maintain the writ petition. The State has the right to close the selection process. The petitioners are not affected in any manner whatsoever as their applications would be considered along with others who applied pursuant to the advertisements published in the months of August and September, 2009. Even their over age would be condoned. They would not be prejudiced if they compete with others. The object of the petitioners is to confine the process and restrict it to the applications of the candidates whose names were sponsored by the employment exchange which is contrary to the law laid down by the Apex Court. Further no right had accrued in favour of the petitioners as the assessment stage has not come. Besides in rule 9 there is no time limit when the process for recruitment is to be completed. Submission has been made that after amendment of the Rules there cannot be any categorization as it would be hit by Article 14 of the Constitution of India. Besides in rule 9 there is no time limit when the process for recruitment is to be completed. Submission has been made that after amendment of the Rules there cannot be any categorization as it would be hit by Article 14 of the Constitution of India. Moreover, prospective legislation taking into account past activities is not retrospective legislation; rather these are the effects of prospective legislation. Submission has been made that the State is competent to legislate and frame rules as the field is not occupied by the National Council for Teachers Education Act, 1993 and the Regulations framed thereunder. Referring to Schedule VII, List-Ill of Entry 25 of the Constitution of India it has been submitted that as the field of primary education is not covered, the Centre as well as the State, both, can legislate. Reference has been made to several decisions of the Apex Court as well as the High Court in support of his submission. (6.) The preliminary question which falls for consideration is whether the writ petition is maintainable. It is evident that in 2006 the Primary School Council sought for the names from the employment exchange. After the names were obtained from the exchange in accordance with Rule 9(1) the petitioners were communicated in writing to produce the testimonials/ certificates for computation of their marks in the score sheets to be prepared for the purpose of such selection. Accordingly, the petitioners submitted their bio-data along with the copies of their testimonials/certificates. Thereafter, no development took place. On 20th May, 2009 and on 27th July, 2009 amendments were carried out in 2001 Rules including Rule 6 proviso and Rule 9. Now it is to be considered whether such amendment can be given a retrospective effect. It is an established proposition under the canons of interpretation of statutes that the rule making authority cannot make a delegated legislation with retrospective effect unless such power conferred in the enactment, that is, in instant case in the West Bengal Primary Education Act, 1973. A perusal of Section 106 of the 1973 Act, that is, the "Power of the State Government to make Rules" shows that no such power has been conferred on the rule making authority. A perusal of Section 106 of the 1973 Act, that is, the "Power of the State Government to make Rules" shows that no such power has been conferred on the rule making authority. Section 106 (3) of the 1973 Act is as under : -"All rules made under this Act, shall be laid for not less than fourteen days before the State Legislature as soon as possible after they are made and shall be subject to such modification as the State Legislature may make during the session in which they are so laid. Any modification of the said rules made by the State Legislature shall be published in the Official Gazette and shall, unless some later date is appointed by the State Government, come into force on the date of such publication " (Emphasis supplied) (7.) In Accountant General v. S. Doraiswamy reported in AIR 1981 SC 783 the Supreme Court had held as under: "... It is settled law that unless a statute conferring the power to make Rules provides for the making of Rules with retrospective operation, the Rules made pursuant to that power can have prospective operation only."(Paragraph 7) (8.) Though it was argued on behalf of the respondents that the law laid down in Accountant General v. S. Doraiswamy (supra) is applicable to the factual matrix of the case before the Apex Court, in my view, there is no conflict regarding the position of law laid down by the Supreme Court and in Section 106(3) of the 1973 Act. Therefore, the amendment of Rule 2001 carried out in 2009 cannot have any retrospective operation. Though it was contended on behalf of the State that in a prospective rule past actions can be taken into consideration, in my view, taking into consideration the past activities in passing a rule with prospective effect, as has happened in the instant case, clearly amounts in giving the Rule a retrospective effect, and runs contrary to Section 106(3). It is clearly against the provisions contained in Rule 8(3). Thus, what would be relevant are the Rules prevalent in the year 2006 when the names were sponsored and bio-data were furnished WBLR-62 by the petitioners on request by the Council. It is clearly against the provisions contained in Rule 8(3). Thus, what would be relevant are the Rules prevalent in the year 2006 when the names were sponsored and bio-data were furnished WBLR-62 by the petitioners on request by the Council. In this regard, it is appropriate to refer to the law laid down by the Supreme Court in Y. V. Rangaaiah v. J. Sreenivasa Rao reported in Arjun Singh Rathore and Others v. B. N. Chaturvedi and Others reported in (2007)11 SCC 605 where in it has been held : - "8......This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose." (9.) Though it has been contended on behalf of the State that the judgment relates to circular not being followed and deals with promotion of officers, it cannot be denied that it deals with the appointments in service. The judgment in State of Punjab v. Arun Kumar Aggarwal reported in (2007)10 SCC 402 relied on by the State is not applicable to the facts and circumstances as there the Government had taken a conscious decision not to fill up the posts under the old 1941 Rule and in the case in hand vacancies were notified, names were requisitioned in 2006 and bio-data were filed obviously under Rule 8(3) and 9(1) of 2001 Rules. Thereafter, the computation of marks under 9(2) is a natural corollary. Therefore, in this case, the recruitment process had clearly begun. In this regard, it is appropriate to refer to the law laid down by the Division Bench on a reference in Snehangsu Jas v. State of West Bengal and others reported in (2001)2 Cal LJ 558 wherein it has been held as under: "22. Therefore, in this case, the recruitment process had clearly begun. In this regard, it is appropriate to refer to the law laid down by the Division Bench on a reference in Snehangsu Jas v. State of West Bengal and others reported in (2001)2 Cal LJ 558 wherein it has been held as under: "22. In view of the law laid down by the Apex Court and Division Bench of this Court, we are of the opinion that the selection process will commence only when the candidates are invited to appear on the basis of names sent by the Employment Exchange on requisition by the managing committee for recruitment of the teachers and if that stage has not reached then it will not amount to commencement of the selection process. The selection process is deemed to have commenced if the posts have been advertised and candidates have been called for interview and meanwhile if the Rules are amended then that selection process should be allowed to continue without being affected by the amendment of the Rules unless the Act or Rules have been amended with a retrospective effect. Thus, in this view of the matter, the view taken by the learned Single Judge in the case of Kanaidighi Deshapran Vidyapith v. State of West Bengal (supra) ; and Salauddin Miah v. State of West Bengal (supra) are no more good law." (10.) It is to be borne in mind that every selection procedure has a methodology of its own and varies from examination to examination. Since in the case in hand under Rule 9 appearance in the interview is not the criterion, the selection process commenced as soon as the candidates were requested to submit their testimonials/certificates which forms, under Rule 9(b), the bulk of computation of marks for selection. The judgment of the Supreme Court in Delhi Judicial Services Association v. Delhi High Court and others reported in (2001)5 SCC 145 relied on by the State is of no assistance since as evident from paragraph 5 of the said judgment, the selection process did not start, advertisement was not issued and such advertisement was issued only subsequent to the amendment of Rules. Thus it was observed in the said judgment it was futile to contend that posts could be filled up under pre-amended Rules merely because the posts had been created when the amended Rules had not come into force. Thus it was observed in the said judgment it was futile to contend that posts could be filled up under pre-amended Rules merely because the posts had been created when the amended Rules had not come into force. That apart, as it has been postulated in Rule 8(3) of the 2001 Rules that "vacancies existing on date plus vacancies anticipated to arise against sanctioned strength, in course of next twelve months may be taken up as total vacancies while sending requisition to the employment exchange", it is clear that the primary school authorities while sending the requisition in the year 2006 had in mind the vacancies in the year 2006 and the anticipated vacancies in 2007. Any attempt to rope in the vacancies arising in the year 2008 or thereafter, is against the express provisions of Rule 8(3) which creates a parameter regarding the number of vacancies existing and anticipated. Thus, in view of the position of law, the vacancies in the year 2006 and the anticipated vacancies in the next twelve months form a slot by themselves. Those vacancies have the sanction under Rule 8(3). The petitioners whose names were requisitioned and who had submitted their bio-data pursuant to the request by the Primary School Council fall within this slot. Once the petitioners on request "produce" "testimonials/certificates for computation of their marks in the score sheets to be prepared for the purpose of such selection" they come under Rule 9(1), that is, the "Selection Procedure" which has been initiated in the year 2006. Thereafter, on the basis of testimonials/certificates marks have to be computed in accordance with Rule 9(2)(b). In the instant case, as the selection procedure had been initiated and since the petitioner had in the year 2006, pursuant to the request by the District Primary School Council, submitted the bio-data and as Section 106 of the 1973 Act does not confer on the rule making authority to frame Rules with retrospective effect, in my view, definitely a right for consideration of their applications have accrued in favour of the petitioners. True, "the successful candidates do not acquire any indefeasible right to appointment against the existing vacancies" or "they do not acquire any right to the post" or the "petitioners had no right to claim that the selection process once started must be completed" (Paragraph 7) as has been observed in the case of Jai Singh Dalai v. State of Haryana reported in 1993 Supp (2) SCC 600, however, as it is clear from the submission advanced on behalf of the State that the selection process initiated in 2006 have not been abandoned, the principles of law laid down in Arjun Singh Rathores case (supra) are applicable. The law laid down in Debjani Sarkars case reported in 2009 Vol. II Cal HN 947 is not applicable as in the said case, the petitioner had applied after advertisement was published under the new 2007 Rules whereas in the case in hand the petitioners had submitted their bio-data pursuant to their request in 2006 when unamended Rules were in vogue. It is to be borne in mind before applying a law laid down in a judgment to the facts of a case, Court has to consider the factual matrix, the law and the Rules governing the field when action was initiated. Therefore, in my view, for the reasons as indicated the petitioners have the locus standi to move the writ petition. (11.) As prayed for, let affidavits in opposition be filed by 30th November, 2009. Reply thereto, if any, by 14th December, 2009. (12.) So far as the prayer for interim order is concerned, as held in this order, since the vacancies occurred in the year 2006 and anticipated vacancies in the next twelve months were taken up as total vacancies, as postulated under Rule 8(3) these vacancies form a slot by themselves; and as the petitioners, whose names were requisitioned in 2006 pursuant to the request by the Primary School Council had submitted their bio-data and, therefore, come under the selection procedure under Rule 9(1), in my view, a prima fade case has been made out for granting an interim order. Therefore, let there be an interim order restraining the respondents from cancelling the selection process initiated in 2006 under the unamended Rules for the post of Primary School Teachers and from filling up the vacancies for which the selection process was initiated in 2006 by any process other than from amongst the candidates who had submitted their bio-data in 2006. (13.) Liberty to mention upon notice. (14.) After judgment is delivered, Mr. Kar, learned Advocate for the State respondents prays for stay of operation of the order. Prayer is considered and is refused. (15.) Let a xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to Mr. Anindya Bhattacharya and Mr. Saikat Banerjee, learned Advocates for the petitioners and the State respondents respectively on usual undertaking.