JUDGMENT :

1. The petitioner by way of this writ petition submits that an advertisement was issued by the Bihar State Examination Board, Patna, Bihar, 2019 informing that a Secondary Teacher Eligibility Test (S.T.E.T.), 2019 and Physical Education and Health Instructors Eligibility Test, 2019 would be conducted for posts which were mentioned against the subjects as mentioned therein.

2. Learned counsel has invited attention to the advertisement to show that a selection process has been laid down and a merit list was required to be prepared on the basis of marks obtained by each candidate for each subject and category.

3. Learned counsel has also invited attention to the effect that the merit list criteria amongst the candidates who obtained equal marks was also laid down. He further submits that a merit list was also prepared after the examinations were conducted which was subject-wise. However, the State Government, Education Department issued an order on 26.06.2021, wherein it was directed that the candidates, who have appeared in the Secondary Teacher Eligibility Test (S.T.E.T.), 2019 shall be treated as qualified, if they have secured minimum qualifying marks and all the candidates, who have secured qualifying marks shall now be entitled to participation and selection in the next on coming selection process.

4. Learned counsel submits that such a departure could not have been made. The posts which have been advertised under the advertisement issued in 2019, can only be filled by the process which was laid down in the advertisement. The petitioners, who have secured higher merit than others have a preferential right of appointment under the said advertisement and a go by to the said selection process could not have been done in the manner by issuing the order dated 26.06.2021.

5. In a counter affidavit filed by the State, it is stated that the examination was conducted on 09.09.2020 to 21.09.2020 and a result of total 24,599 candidates was declared as qualified on 12.03.2021, out of the total 30332 vacancies. Later on result of three subject were also declared and total 6077 candidates were declared to be qualified.

6. The test of Secondary Teacher Eligibility Test (S.T.E.T.) is a qualifying Test which is essential for seeking for appointment as a teacher. Those, who qualify the Secondary Teacher Eligibility Test (S.T.E.T.) with academic and training qualifications prescribed in the relevant posts become eligible to participate in the recruitment process being conducted by the employing units falling within the jurisdiction of Panchayat Raj Institutions and Urban Local Bodies. It is submitted that those who have qualified in the Secondary Teacher Eligibility Test (S.T.E.T.) have no right to claim for selection and appointment and the same is treated as qualifying examination. It is also pointed out that in terms of Clause 14 (G) of the advertisement, it was informed that there would be no compulsion for recruitment by merely qualifying the eligibility test and later on the Education Department after inviting applications from qualifying candidates will undertake selection against vacant posts after following the prescribed procedure.

7. I have considered the submission of Constitution Bench in Shankarsan Dash Vs. Union of India AIR 1991 SC 1612 which is as follows:-

“7. It is not correct to say 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. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancie