The appointment of untrained candidates as assistant teachers in primary schools is not completely barred by the statutory provisions and rules, but preference must be given to trained candidates. The relevant rules should be interpreted to mean that all additional posts sanctioned by the government due to increased enrollment are to be filled by trained candidates, and at least 50% of the normal vacancies are to be filled by trained candidates if available. The remaining 50% of normal vacancies are to be filled by considering trained and untrained candidates on a rational and reasonable basis.

1. APPEALS have been filed on behalf of different District School Boards and District Primary School Councils for setting aside the judgment of a learned Judge allowing two writ applications filed on behalf of the applications seeking appointments as Assistant Teachers in different Primary Schools established, recognised and maintained by the District school Boards/district Primary School Councils.

2. A grievance had been made that the trained candidates having requisite qualifications were being ignored whereas untrained candidates were being empanelled and in due course were being appointed in different Primary schools in the State in contravention of Rules framed by the State government. . The learned Judge held that the appointment of untrained candidates as assistant teachers in different primary schools was unauthorised, and illegal. According to the learned Judge under the existing Rules, Orders and circulars framed and issued by the State Government only from time to time trained candidates have to be appointed against the vacancies occurring in different Primary Schools of the State. On that finding a direction has been given to the respondents not to give appointment to any untrained candidates and to appoint only the trained candidates in the recognised Primary Schools in the different districts of the State against the existing vacancies. A further direction has been given to strictly, rigorously and rigidly scrutinise the panel prepared by different Schools Boards for appointment against the posits of teachers in the primary Schools and to exclude those who are not otherwise ligible for being empanelled including the untrained candidates.

It was pointed out on behalf of the appellants that the finding of the learned Judge that only the trained candidates can be appointed against the posts of assistant teachers in different Primary schools in against the provisions of the Bengal (Rural) Primary Education Act, 1930 (hereinafter referred to as "the Act") and the Rules framed there under which have been amended from time to time.

3. SECTION 66 (1) of the Act vests power in the State government to make Rules for carrying out the purposes of the Act. The relevant part of Section 66 (2) is as follows :

Sec. 66 (2) particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely : - (p) the conditions referred to in clause (g)of sub-section (1) of Section 23.

"Section 23 (1) (g) is as follows : -It shall be the duty of every Board (g) subject to the prescribed conditions, to appoint and fix and pay the salaries (and allowances) of teachers in Primary schools."

4. IT appears that in exercise of the powers conferred by section 66 (2) (p) read with Section 23 (1) (g) aforesaid, rules were framed which were published by Notification no. 1493-Edn dated 25th July, 1940.

Rule 2 prescribed the minimum qualification for appointment as assistant teacher in a Primary school maintained by a Board and the relevant part whereof was as follows :-"assistant Teacher - Training. provided that for a period of ten years from the date on which these Rules came into force the qualifications for appointment of women teacher in such Primary Schools shall be as follows : assistant Teacher - Training or Middle standard Pass :

Provided further that until an adequate supply of trained teachers is available untrained matriculates (or their equivalents) may be appointed as acting head or assistant teachers and that suitable trained non-matriculates may be appointed as Head Teachers.

Explanation - For the purpose of this rule a Teacher shall be deemed to possess a training when he or she has passed the departmental examination held at the completion of a course of training in school or centre managed, organised or recognised by the Director of Public Instruction for the purpose of imparting such training.

5. BY a Notification dated 26th October, 1971 issued in the exe