The decision in Excise Superintendent, Malkapatnam, Krishna District, A. P. v. K. B. N. Visweshwara Rao and Ors. reported in (1996)6 SCC 216, would not apply to a case where the recruitments of teaching and non teaching staff are governed by the statutory rules.

( 1 ) SEVERAL writ applications were referred to the Division Bench on the question as to whether the decision in Excise Superintendent, Malkapatnam, Krishna District, A. P. v. K. B. N. Visheshwara Rao and Ors. reported in 1996 (6) SCC 216, would apply to a case where the recruitments of teaching and non teaching staff are governed by the statutory rules.

( 2 ) THE matter was referred also to Division Bench in view of the fact that several Benches had been passing inconsistent orders relying on or on the basis of decision in Excise Superintendent, Malkapatnam, Krishna District, A. P. v. K. B. N. Visweshwara Rao and Ors. reported in (1996)6 SCC 216.

( 3 ) SEVERAL appeals have also been filed by different Ad-hoc Committee of the District Primary Schools Councils questioning orders passed by learned single Judges of this court whereby and whereunder different orders as noticed hereinbefore have been passed.

( 4 ) IN order to consider the matter in its proper perspective it is not necessary to state the fact of the matter in great details as the point involved in these matters is a pure question of law. Suffice it to, say that the writ petitioners hold the requisite qualification for being appointed as Asstt. Teachers. They are either trained or untrained. Some of them got their names registered in the local Employment Exchanges. Their names, however, were not sponsored by the Employment Exchange. The writ petitioners, intended to appear at the interview which was being held by the different School Councils. Several learned Judges had passed different orders. Some orders directed : (1) The District Primary School Council should allow the writ petitioners to appear at the interview; (2) All persons who intend to appear at the interview may be permitted to so appear; or (3) The local Employment Exchanges to sponsor the names of the writ petitioners and (4) A learned single Judge of this court, however, has held that in all such cases, keeping in view the ratio in Excise Superintendent (supra), an advertisement must be issued before any appointment is made.

( 5 ) ARTICLES 14 and 16 of the Constitution of India in no uncertain terms provide for equality before law and equal protection of law in the matter of appointment or conditions of service. However, the matter relating to recruitment of primary teachers is governed by a legislative Act. The legislative history as also the rules prevailing in the field and the impact of various litigations filed before this court had been noticed by a Division Bench, of which one of us (S. B. Sinha, J), was a member in West Bengal Board of Primary Education v. State of West Bengal and Ors. reported in 1997 (1) CLJ 165. It now, however, stands admitted that the matter of recruitment after the said decision would be governed by the West Bengal Primary Education Act, 1973 which came into force with effect from 20th September, 1974 and Rules regulating the, Recruitment and Leave of Teachers in Primary Schools in West Bengal published in the Calcutta Gazette on 25. 11. 1991.

( 6 ) SECTION 60 of the 1973 Act provides for the duties of the Primary School Council. Section 60 (K) reads thus :-"subject to the prescribed conditions, to appoint teachers and other staff in Primary Schools, to transfer any such Teachers or other staff from one Primary School to another Primary School within the jurisdiction of the same Primary School Council and to pay to teachers and other staff salaries and allowances, if any, at such rates as may be fixed by the State Government;"section 106 of the said Act provides for powers of State Government to make rules for carrying out the purposes of this Act.

( 7 ) SUB clause (v) of sub-section (2) of section 106 empowers the State in particular and without prejudice to the generality of the foregoing power to make rules in any other matter which may or is required to be prescribed.

( 8 ) AS noticed hereinbefore, section 60 (K) provides for appointment of te