WEST BENGAL CENTRAL SCHOOL SERVICE COMMISSION & ORS.V. ABDUL HALIM & ORS. versus ABDUL HALIM & ORS on 24 July 2019

[2019] 9 S.C.R. 1089

WEST BENGAL CENTRAL SCHOOL SERVICE COMMISSION& ORS.

v.

ABDUL HALIM & ORS.

(Civil Appeal No.5824 of 2019)

JULY 24, 2019

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

West Bengal School Service Commission (Selection of Personsfor Appointment to the Post of Teachers) Rules, 2007 – r.5 – WestBengal School Service Commission Act, 1997 – Clause (d) of Sub-section (2) r/w. Sub-section (1) of s.17 – The West Bengal CentralSchool Service Commission invited applications for the posts ofAssistant Teacher – Pursuant thereto, respondent No.1 applied forthe post of Assistant Teacher of Arabic in a Bengali medium schoolin the format prescribed – Respondent No.1 was declared successfulin the written test – After counselling, his recommendation/empanelment and his selection was cancelled on the ground that heopted for a Bengali medium school though he did not have Bengalias a subject either at the Secondary or at the Higher Secondary orat the graduation level – Writ petition – Single Judge of the HighCourt held that respondent No. 1 had successfully completed thecertificate course in Bengali and Commission had wrongfullycancelled his selection for the post of Assistant Teacher of Arabicin the school – Aggrieved, appellants filed appeal before the DivisionBench of High Court, which was dismissed – On appeal, held: Thedocuments annexed by the respondent No.1 revealed that the coursewas of elementary level – Also, respondent No.1 did not produceany document or certificate certifying that his certificate course inBengali was of a standard equivalent to Bengali language at thepost Higher Secondary level – In this case, it is not in dispute thatthe respondent No.1 who had been educated outside the State ofWest Bengal, did not have Bengali as a subject at the Secondary,Higher Secondary, graduation or post graduation level – Theinterpretation of the last Clause of Paragraph 2 of theadvertisement and/or r.5 (c) of the Rules, which reads “must havesucceeded in higher level of education in that language paper” by

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Athe authorities as success in the language paper at the graduationlevel or the post graduation level, or alternatively an examinationin the language paper of a level which is equivalent to the level ofthe language as taught in the graduation level and not any parttime course conducted by a University is a plausible if not possibleinterpretation which ought not to have been interfered with by theBWrit Court.

Allowing the appeal, the Court

HELD: 1. The High Court in exercise of its power to issuewrits, directions or orders to any person or authority to correctCquasi-judicial or even administrative decisions for enforcementof a fundamental or legal right is obliged to prevent abuse ofpower and neglect of duty by public authorities. [Para 29][1099-B]

2. In exercise of its power of judicial review, the Court is toDsee whether the decision impugned is vitiated by an apparenterror of law. The test to determine whether a decision is vitiatedby error apparent on the face of the record is whether the erroris self-evident on the face of the record or whether the errorrequires examination or argument to establish it. If an error hasto be established by a process of reasoning, on points where thereEmay reasonably be two opinions, it cannot be said to be an erroron the face of the record, as held by this Court in Satyanarayanvs. Mallikarjuna reported in AIR 1960 SC 137. If the provisionof a statutory rule is reasonably capable of two or moreconstructions and one construction has been adopted, the decisionFwould not be open to interference by the writ Court. It is only anobvious misinterpretation of a relevant statutory provision, orignorance or disregard thereof, or a decision founded on reasonswhich are clearly wrong in law, which can be corrected by the writCourt by issuance of writ of Certiorari. [Para 30] [1099-C-E]

G3. The sweep of power under Article 226 may be wideenough to quash unreasonable orders. If a decision is so arbitraryand capricious that no reasonable person could have ever arrivedat it, the same is liable to be struck down by a writ Court. If thedecision cannot rationally be supported by the materials on record,the same may be regarded as perverse. [Para 31] [1099-F]H

4. However, the power of the Court to examine thereasonableness of an order of the authorities does not enablethe Court to look into the sufficiency of the grounds in support ofa decision to examine the merits of the decision, sitting as if inappeal over the decision. The test is not what the Court considersreasonable or unreasonable but a decision which the Court thinksthat no reasonable person could have taken, which has led tomanifest injustice. The writ Court does not interfere, because adecision is not perfect. [Para 32] [1099-G-H; 1100-A]

5. In entertaining and allowing the writ petition, the HighCourt has lost sight of the limits of its extraordinary power ofjudicial review and has in fact sat in appeal over the decision ofthe respondent No.2. [Para 33] [1100-B]

6. In this case, it is not in dispute that the RespondentNo.1 who had been educated outside the State of West Bengal,did not have Bengali as a subject at the Secondary, HigherSecondary, graduation or post graduation level. Theinterpretation of the last Clause of Paragraph 2 of theadvertisement and/or Rule 5 (c) of the Rules, which reads “musthave succeeded in higher level of education in that languagepaper” by the authorities as success in the language paper atthe graduation level or the post graduation level, or alternativelyan examination in the language paper of a level which is equivalentto the level of the language as taught in the graduation level andnot any part time course conducted by a University is a plausibleif not possible interpretation which ought not to have beeninterfered with by the Writ Court. [Para 34] [1100-C-D]

7. This Court cannot but take judicial notice of the fact thatuniversities do not usually allow students to opt for a languagesubject at the graduation level if the subject was not cleared atthe Higher Secondary level. As observed, documents annexedby the Respondent No.1 reveals that candidates who have studiedthe language at some level before the graduate level are debarredfrom admission to the Certificate Course, which makes it obviousthat the course is of elementary level. [Para 35] [1100-E]

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A8. Significantly, the Respondent No.1 has not produced anydocument or certificate of the Delhi University certifying thatthe certificate course in Bengali is of a standard equivalent toBengali language at the post Higher Secondary level.[Para 36] [1100-F]

BSatyanarayan v. MallikarjunaAIR 1960 SC 137 :[1960] SCR 890 – relied on.

Case Law Reference

[1960] SCR 890 relied onPara 30

CCIVIL APPELLATE JURISDICTION: Civil Appeal No. 5824of 2019

From the Judgment and Order dated 27.06.2016 of the High Courtat Calcutta in F.M.A. No. 3324 of 2015

DRana Mukherjee, Sr. Adv., Ms. Ekta Pradhan, Ms. DharitryPhookan, Advs. for the Appellants.

Debal Banerji, Sr. Adv., Pijush K. Roy, Mrs. Kakali Roy, RajanK. Chourasia, Suhaan Mukerji, Ms. Astha Sharma, Amit Verma,Ms. Kajal Dalal, Ms. Dimple Magpal (for M/s. PLR Chambers and Co.), Advs. for the Respondents.

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The Judgment of the Court was delivered by INDIRA BANERJEE, J. 1. Leave granted.

2. Heard Mr. Rana Mukherjee, learned senior counsel for theFAppellants and Mr. Debal Banerji, learned senior counsel for theRespondent No.1.

3. This appeal is against a final Judgment and order dated27.6.2016 of a Division Bench of Calcutta High Court dismissing anappeal being FMA No.3324/2015 filed by the Appellants against an orderGdated 19.4.2010 passed by the Single Judge allowing Writ PetitionNo.21512(W) of 2009 filed by Respondent No.1 inter alia cancellingthe candidature, empanelment and selection of the Respondent No.1 forthe post of Assistant Teacher in Arabic (Pass) in Jiaruddintola HighSchool, a Bengali medium school in District Malda in West Bengal,hereinafter referred to as “School”.

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4. The West Bengal Central School Service Commission issuedan advertisement No.01/AT/08 dated 26.8.2008 inter alia in the issueof the Bengali daily “Aajkaal” published on 27.8.2008,inviting applicationsfor the posts of Assistant Teacher as specified in the said advertisement.

5. It appears that there were vacancies inter alia in the posts oftwo categories of teachers, that is, the pass category for which theessential minimum educational qualification was Bachelor’s Degree inthe Pass course from any UGC recognized university having theconcerned subject as a combination subject of at least 300 marks at thedegree level or 200 marks in the old 2-year Degree course, and theHonours/Post Graduate category for which the essential minimumqualification was Bachelor’s Degree with Hons. or alternatively Master’sDegree in the concerned subject from any UGC recognized university.For both the above categories qualification in Teachers’ Training suchas B.T, B.Ed, P.G.B.T etc. was desirable.

6. In exercise of power conferred by Clause (d) of Sub-section(2) read with Sub-section (1) of Section 17 of the West Bengal SchoolService Commission Act, 1997 and in supersession of the West BengalSchool Service Commission (Selection of Persons for Appointment tothe Post of Teachers) Rules, 2006, the Government of West Bengalframed the West Bengal School Service Commission (Selection ofPersons for Appointment to the Post of Teachers) Rules, 2007 (hereinafterreferred to as the “Rules”). Rule 5 of the Rules provides as follows:- “ 5. Additional essential qualification of candidate.- Acandidate willing to be selected as a Teacher in any School orMadrasah, having Bengali or English or Hindi or Nepali or Oriyaor Santhali or Telegu or Urdu as the medium of instruction, musthave Bengali or English or Hindi or Nepali or Oriya or Santhali orTelegu or Urdu, as the case may be, as first or second or thirdlanguage at any of the Secondary or Higher Secondary orGraduation level - (a) at Secondary level or the Board or Board of Madrasah orequivalent; or (b) at Higher Secondary level of the Council or equivalent; or(c) at any subsequent higher level of education in that languagepaper.”

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[2019] 9 S.C.R.

AThe said advertisement No. 01/AT/08 inter alia set forth theeligibility criteria for the teaching posts advertised. Paragraph/Note 2 ofthe said advertisement read:- “Medium of instruction…… Vacancies are mainly in Bengalimedium schools (excluding Madrasahs). Candidates applying forBSchool (excluding Madrasah) with particular language as mediummust have that language of the medium as first or second or thirdlanguage at Secondary level of the West Bengal Board ofSecondary Education/West Bengal Board of Madrasah Educationor from any equivalent Board or at Higher Secondary Level ofthe West Bengal Council of High Secondary Education or fromCany equivalent Board/Council or must have succeeded at anysubsequent higher level of education in that language paper.”

7. Pursuant to the aforesaid advertisement the Respondent No. 1applied for the post of Assistant Teacher of Arabic in a Bengali mediumschool in the format prescribed. It appears that the Respondent No.1Dwas educated outside the State of West Bengal and he did not haveBengali as a subject either at the Secondary level or at the HigherSecondary level or at the graduation or post graduation level.

8. It is the case of the Respondent No.1 that he had successfullycompleted a one year Certificate Course in Bengali conducted by theEUniversity of Delhi, Department of Modern Indian Languages andLiterary Studies. The syllabus for the said Certificate Course, whichwas a part time course comprised of:-

1. Paper -I : Grammar and Translation - 100 Marks F2. Paper -II : Composition and History of Literature - 100 Marks

3. Paper III : Oral (Reading, Writing and Conversation) - 100 Marks

9. The break up of marks in the three papers is as follows:- H

WEST BENGAL CENTRAL SCHOOL SERVICECOMMISSION v. ABDUL HALIM [INDIRA BANERJEE, J.]

10. The Respondent No.1 has annexed Statement of Marksawarded to him by the University of Delhi in the Certificate Courseexamination in Bengali. It appears that he obtained aggregate of 155Marks out of 300 Marks. The Respondent No.1 obtained 57 Marks on100 in the 1[st] Paper, 53 Marks on 100 in the 2[nd] paper and 45 on 100 inthe 3[rd] paper (Oral).

11. It appears that after applying pursuant to the aforesaidadvertisement along with copies of all certificates including the certificatecourse in Bengali, the Respondent No.1 was issued admit card to appearfor the 9[th] Regional Level Selection Test scheduled to be held on21.12.2008.

12. The Respondent No.1 was successful in the Written Test afterwhich a letter dated 25.5.2009 was issued to the Respondent No.1 askinghim to appear for a personality test scheduled to be held on 6.7.2009.The letter inviting the Respondent No.1 for the personality test read:- “7. You are requested to appear for the Personality Test on theassumption that you fulfil the requirements of educationalqualifications etc. in terms of Advertisement made by theCommission in connection with the Examination.

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Please note that your candidature is liable to be rejected at anystage, if you are found ineligible according to the terms ofAdvertisement No.01/AT/08 dated 26.08.08, the WBSSC Act,1997, the WBSSC (Selection of Persons for Appointment to thePost of Teachers) Rules, 2007 and in terms of provisions of Indian A

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APenal Code without assigning any reason as well as in terms ofITEM NOS. 17, 18 and 19 of the Application Form meant for 9[th]RLST (AT), 2008.”

13. The Respondent No.1 was asked to produce all documents insupport of his eligibility in original, which he did, at the time of theBpersonality test. The Respondent No.1 was, thereafter, empanelled forthe post of Assistant Teacher in Arabic on the basis of results of 9[th]Regional Level Selection Test (AT) 2008. The Appellant thereafterinvited the Respondent No. 1 for counselling on 21.8.2009 forrecommendation of his candidature for the post of Assistant Teacher inArabic of the Pass category.C

14. On the date of counselling i.e., 27.8.2009 the Respondent No.1opted for appointment as an Assistant Teacher in Arabic In JiaruddintolaHigh School, District- Malda.

15. After counselling, while the Respondent No.1 was awaitingDappointment letter, he received an impugned communication cancellinghis recommendation/empanelment and his selection to the School on theground that he had opted for a Bengali medium school though he did nothave Bengali as a subject either at the Secondary or the HigherSecondary or the graduation level.

E16. The Respondent No.1 filed Writ Petition No.2151(W) of 2009in Calcutta High court, challenging the impugned communication on theground that he was eligible for the post, since he had successfullycompleted the Certificate Course in Bengali from the Delhi University.

17. When the writ petition was taken up for hearing, no oneFappeared on behalf of the Appellants. Nor had any affidavit in oppositionbeen filed on behalf of the Appellant. The learned Single Judge allowedthe writ petition ex parte observing that the case of the RespondentNo.1 in Paragraphs 15 and 16 of the writ petition remaineduncontroverted.

18. The Single Judge held that the Statement of Marks datedG9.5.2008, issued by the University of Delhi, showed that the RespondentNo.1 had successfully completed the Certificate Course in Bengali,obtaining 155 out of 300 Marks, and further proceeded to hold that inview of Paragraph 2 of the advertisement referred to above and, inparticular, the last Clause, which read “must have succeeded at anyH

subsequent higher level of education in the language paper”, theRespondent No.1, who had passed Certificate Course in Bengali fromUniversity of Delhi, was justified in contending that the Commission hadwrongfully cancelled his selection for the post of Assistant Teacher ofArabic in the school. The Single Judge, therefore, directed the AppellantNo.2 to offer appointment to the Respondent No.1 within a week.

19. Being aggrieved by the judgment and order dated 19.4.2010passed by the Single Judge, the Appellants filed an appeal being F.M.A.T.No.1296 of 2010, later numbered as FMA 3324 of 2015, which wasdismissed by impugned order dated 27.6.2016 which is under appeal.

20. The Division Bench rejected the argument advanced on behalfof the Appellants that a one year part time Certificate Course in Bengalifrom the University of Delhi was not a course contemplated in Rule 5(c)of the 2007 Rules. The Division Bench found that the Respondent No.1indisputably did not come under Rule 5(a) or Rule 5(b). The questionwas whether he came under Rule 5(c). The Division Bench answeredthe aforesaid question in favour of the Respondent No.1 holding asfollows:- “Since the Rules do not specifically state that Certificate Courseis not a course which is subsequent to higher level of educationand the respondent No.1/writ petitioner fulfilled the parametersof Rule 5(c), the learned Single Judge was justified is passing theorder impugned”

21. The Division Bench, by its order under appeal, directedAppellant No.2 to recommend Respondent No.1 for appointment asAssistant Teacher of Arabic (pass) in Bengali to the school.

22. The Division Bench and the Single Bench have erred in arrivingat the finding that the Respondent No.1 had fulfilled the requirements ofParagraph 2 of the Advertisement and/or Rule 5(c) of the Rules.

23. With the greatest of respect, the Division Bench as also theSingle Judge failed to appreciate that the question of eligibility of theRespondent No.1 for the post of Assistant Teacher of Arabic, in termsof Paragraph 2 of the Advertisement and/or Rule 5(c) of the 2007 Rules,necessitates an enquiry into and determination of the factual issue ofwhether Bengali taught in the Certificate Course conducted by theDepartment of Modern Indian Languages and Literary Studies of the AB

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AUniversity of Delhi was of a level higher than the level of Bengali taughtat the Higher Secondary level of the West Bengal Council of HigherSecondary Education or any equivalent Board.

24. A part time Certificate Course in a language, conducted by aUniversity for graduates, is not necessarily of a level higher than theBHigher Secondary level of the West Bengal Council of Higher Educationor equivalent Board or for that matter, higher than the Secondary levelof the West Bengal Board of Secondary Education or an equivalentBoard

25. A Certificate Course could very well be a basic course forCgraduates who are beginners in the language. The syllabus for theCertificate Course in Bengali shows that out of three papers of 100marks each, in which candidates are tested there is one Oral Paper of100 marks for ‘Reading’ ‘Writing’ and ‘Conversation’, which are generallytested at the primary or at best the middle school level. Moreover theCertificate Course is not meant for candidates who have studied BengaliDearlier.

26. The reasoning of the Division Bench that the Single Benchwas justified in allowing the writ petition, since the rules do not specificallystate that the Certificate Course is not a course which is subsequent tohigher level of education is patently misconceived. It is preposterous toEexpect that statutory rules for appointment of teacher in the State ofWest Bengal, would not only have to prescribe the minimumqualifications, but also specify which of the certificates issued by Boardsor Universities all over the country could not be considered as of standardequivalent to the standard of Bengali taught by a University at the underFgraduate level.

27. It is well settled that the High Court in exercise of jurisdictionunder Article 226 of the Constitution of India does not sit in appeal overan administrative decision. The Court might only examine the decisionmaking process to ascertain whether there was such infirmity in theGdecision making process, which vitiates the decision and calls forintervention under Article 226 of the Constitution of India.

28. In any case, the High Court exercises its extraordinaryjurisdiction under Article 226 of the Constitution of India to enforce afundamental right or some other legal right or the performance of some H

legal duty. To pass orders in a writ petition, the High Court wouldnecessarily have to address to itself the question of whether there hasbeen breach of any fundamental or legal right of the petitioner, or whetherthere has been lapse in performance by the respondents of a legal duty.

29. The High Court in exercise of its power to issue writs, directionsor orders to any person or authority to correct quasi-judicial or evenadministrative decisions for enforcement of a fundamental or legal rightis obliged to prevent abuse of power and neglect of duty by publicauthorities.

30. In exercise of its power of judicial review, the Court is to seewhether the decision impugned is vitiated by an apparent error of law.The test to determine whether a decision is vitiated by error apparenton the face of the record is whether the error is self-evident on the faceof the record or whether the error requires examination or argument toestablish it. If an error has to be established by a process of reasoning,on points where there may reasonably be two opinions, it cannot be saidto be an error on the face of the record, as held by this Court inSatyanarayan vs. Mallikarjuna reported in AIR 1960 SC 137. If theprovision of a statutory rule is reasonably capable of two or moreconstructions and one construction has been adopted, the decision wouldnot be open to interference by the writ Court. It is only an obviousmisinterpretation of a relevant statutory provision, or ignorance ordisregard thereof, or a decision founded on reasons which are clearlywrong in law, which can be corrected by the writ Court by issuance ofwrit of Certiorari.

31. The sweep of power under Article 226 may be wide enoughto quash unreasonable orders. If a decision is so arbitrary and capriciousthat no reasonable person could have ever arrived at it, the same is liableto be struck down by a writ Court. If the decision cannot rationally besupported by the materials on record, the same may be regarded asperverse.

32. However, the power of the Court to examine thereasonableness of an order of the authorities does not enable the Courtto look into the sufficiency of the grounds in support of a decision toexamine the merits of the decision, sitting as if in appeal over the decision.The test is not what the Court considers reasonable or unreasonable but A

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Aa decision which the Court thinks that no reasonable person could havetaken, which has led to manifest injustice. The writ Court does notinterfere, because a decision is not perfect.

33. In entertaining and allowing the writ petition, the High Courthas lost sight of the limits of its extraordinary power of judicial reviewBand has in fact sat in appeal over the decision of the respondent No.2.

34. In this case, it is not in dispute that the Respondent No.1 whohad been educated outside the State of West Bengal, did not have Bengalias a subject at the Secondary, Higher Secondary, graduation or postgraduation level. The interpretation of the last Clause of Paragraph 2Cof the advertisement and/or Rule 5 (c) of the Rules, which reads “musthave succeeded in higher level of education in that language paper” bythe authorities as success in the language paper at the graduation levelor the post graduation level, or alternatively an examination in thelanguage paper of a level which is equivalent to the level of the languageas taught in the graduation level and not any part time course conductedDby a University is a plausible if not possible interpretation which oughtnot to have been interfered with by the Writ Court.

35. This Court cannot but take judicial notice of the fact thatuniversities do not usually allow students to opt for a language subject atthe graduation level if the subject was not cleared at the Higher SecondaryElevel. As observed above documents annexed by the RespondentNo.1 reveals that candidates who have studied the language at somelevel before the graduate level are debarred from admission to theCertificate Course, which makes it obvious that the course is ofelementary level.

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36. Significantly, the Respondent No.1 has not produced anydocument or certificate of the Delhi University certifying that thecertificate course in Bengali is of a standard equivalent to Bengalilanguage at the post Higher Secondary level.

37. The judgment and order under appeal cannot be sustainedGand the same is set aside. Accordingly, the appeal is allowed with noorder as to costs.

Ankit Gyan

Appeal allowed.

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