Ali Hossain Mandal vs West Bengal Board Of Primary Education

2024 INSC 453 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1873 OF 2024

ALI HOSSAIN MANDAL & ORS. APPELLANT(S)

VERSUS

WEST BENGAL BOARD OF PRIMARY EDUCATION & ORS. RESPONDENT(S)

WITH

CIVIL APPEAL NO. 1874 OF 2024

AND

CIVIL APPEAL NOS. 1875-1876 OF 2024

JUDGMENT

Hrishikesh Roy, J.

1. Heard Mr. Jaideep Gupta and Ms. Meenakshi Arora, learned Signature Not Verified Digitally signed by senior counsel appearing for the appellants. Also heard Mr. NITIN TALREJA Date: 2024.05.22 16:01:56 IST Reason:

1

Vinay Navare, Dr. Menaka Guruswamy, Mr. Salman

Khurshid, Mr. Rauf Rahim and Mr. Dama Seshadri Naidu,

learned senior counsel, Ms. Sumedha Halder and Ms.

Madhumita Bhattacharjee, learned counsel appearing for

the respondents & impleaders.

2. Relevant facts for the sake of convenience are taken from

Civil Appeal Nos. 1875-1876 of 2024, filed by the West

Bengal Board of Primary Education [hereinafter referred to

as ‘Board’].

FACTUAL MATRIX

3. The origin of the dispute lies in the Board’s Notification

dated 23.12.2020 for filling up 16,500 vacancies of primary

school teachers with a qualification criterion of possessing

the minimum NCTE-prescribed training qualification and

having qualified the Teacher Eligibility Test 2014

[hereinafter referred to as ‘TET-2014’]. Thereafter, a Merit

List for 15,284 candidates was notified on 15.02.2021.

Subsequently, two more Merit Lists were published, covering

all the 16,500 vacancies that were notified by the Board. As

per the West Bengal Primary School Teachers Recruitment

2 Rules, 2016 [hereinafter referred to as ‘Recruitment Rules,

2016’], the said panel of candidates was then sent across to

the respective District Primary School Councils (‘appointing

authority’ under S. 5 of Recruitment Rules 2016) to make

appointments therefrom.

4. At that shape, a few candidates who had not yet been

appointed approached the Calcutta High Court seeking

directions that the Board fill up the remaining vacant seats

by reducing cut-off marks in each category. After the unfilled

vacancies were reconciled, the learned Single Judge vide

order dated 26.09.2022 directed that the 252 Writ

Petitioners be granted appointments against these unfilled

3929 vacancies. Subsequently, the Board notified the filling

up of a fresh set of 11,765 vacancies for primary school

teachers vide Notification dated 21.10.2022, considering the

candidature from TET-2014 as well as TET-2017 candidates.

5. Immediately thereafter, the Board filed an appeal (MAT No.

1734/2022 & CAN 1/2022) challenging the Single Judge’s

order of 26.09.2022. In dismissing the Board’s appeal, the

Division Bench directed that the balance 3929 vacancies of

3 primary school teachers be treated exclusively as part of the

16,500 vacancies pertaining to TET-2014 candidates only,

for which recruitment process had commenced vide

Notification dated 23.12.2020.

6. The Division Bench concluded that the entire TET-2014

selection as well as the appointment process was fraught

with irregularities. The Merit List contained only ranks of

the candidates without offering their comparative marks. It

was observed that not just the TET-2014 candidates or Writ

Petitioners before the High Court but the Board itself was

not aware of the cut-off mark at which appointments had

ceased. Marks were not disclosed to the unsuccessful

candidates and they were given only one-line intimation that

they were ‘not included in the present Merit List’. These

features shrouded the entire selection process into deeper

suspicion, thereby further vitiating the appointment process

as opined by the Division Bench.

7. With this understanding, the Division Bench directed that

the TET-2014 Eligibility List be treated as the Merit List to

determine inter-se positions of the TET-2014 candidates,

4 including those 252 applicants who had filed Writ Petitions

before the High Court. Consequently, the Single Bench order

dated 26.09.2022 was modified to the effect that the 3929

left over vacancies were extended to all the remaining TET-

2014 candidates, in descending order of their inter-se

positions in the TET Eligibility List 2014, notwithstanding

the fact that these vacancies were carried forward through a

fresh recruitment Notification dated 29.09.2022.

8. Appeals herein have been filed by the Board & others to

challenge the Division Bench judgment dated 11.11.2022 of

the Calcutta High Court in MAT 1734/2022 and I.A. No.

CAN 1/2022.

SUBMISSIONS

9. The primary contention of Mr. Jaideep Gupta and Ms.

Meenakshi Arora, learned senior counsel, is rooted in the

provisions of the Recruitment Rules, 2016. They would refer

to the procedure of selection specified in Rule 8 of the

Recruitment Rules, 2016 to contend that the Merit List is

based on evaluation conducted on various parameters,

following which marks are awarded to candidates.

5 Eventually, the Merit List is published and thereafter,

appointments are to be made on the basis of marks secured

by the candidates in the evaluation process specified in the

provisions. However, the directions issued by the Division

Bench in the impugned judgment provide for appointments

to be made on the basis of candidates’ inter-se positions in

the TET Eligibility List 2014, which is in contravention to

the procedure specified under the Recruitment Rules, 2016.

10. It is then argued that the life of the panel/Merit List

remains valid for a period of one year from the date of

approval by the Board. In this case, since the panel was

notified on 15.02.2021, it naturally expired after one year on

15.02.2022. In this case, candidates filed their Writ

Petitions only in May 2022 i.e., approximately three months

after the panel had expired. Therefore, no individual could

have claimed any right of appointment in reference to the

particular recruitment process after the panel had expired.

11. Additionally, Mr. Gupta pointed out that the 3929 vacancies

that remained unfilled due to various factors were then

carried forward through a Notification dated 29.09.2022 as

6 part of the fresh recruitment cycle. Under the new process,

9500 appointments were already been made from the

advertised 11,500 vacancies. It would therefore not be fair to

dislodge the appointed candidates either from the previous

or current recruitment cycle.

12. Appearing for those candidates who seek appointment to the

3929 left-over vacancies from the initial pool of 16,500

vacancies, Dr. Menaka Guruswamy, learned senior counsel

contends that although the validity of the panel as per Rule

12 is one year, there is a provision to extend the validity of

the same by six months at a time but the total period of

such extension cannot exceed one year in any case.

13. It was argued that the learned Single Judge in WPA No.

8981 of 2022 gave sufficient opportunity to the Board to put

forth the relevant information pertaining to the entire

recruitment exercise in a transparent manner. Despite many

such requests, directions and reminders by the Court,

information was not forthcoming about the respective

candidates’ ranks, marks, category, cut-offs, etc. Even when

the matter was posted for consideration on 26.09.2022,

7 these relevant information were not furnished by the Board.

14. Finding that the names of the 252 Writ Petitioners in WPA

No. 8981/2022 are figuring in the particulars submitted by

the Board in a tabular form, the learned Judge issued

direction that the 252 Writ Petitioners should be granted

appointments against the unfilled vacancies (3929). The

Division Bench likewise noticed the inequities that the

candidates had been put through along with the arduous

nature of seeking employment as well as the lack of bona

fide conduct on the Board’s part. Therefore, left with no

choice but to ignore the Merit List fraught with

irregularities, the Division Bench directed that the

appointments be made on the basis of the inter-se positions

of candidates within the TET Eligibility List 2014.

15. Mr. Vinay Navare, learned senior counsel in his turn pointed

out that the entire recruitment exercise had been done in a

reckless manner with little to no information in the public

domain. Although the Merit List had been notified by the

Board, marks scored by candidates were not put forth as

part of the same. Additionally, even the candidates were not

8 informed of their scores or the cut-off mark to be breached,

to be included in the Merit List. In fact, the Board was not

forthcoming on why 3929 vacancies had remained, why no

written test was conducted and other relevant informations,

pertaining to the recruitment process. In light of the same,

the counsel contends that the panel, being full of such

glaring lapses and errors, was not valid in law and therefore

the panel can’t possibly have an expiry date.

DISCUSSION

16. As earlier noted, the recruitment for primary school

teachers is governed by the Recruitment Rules, 2016. The

Rule 8 provides for the procedure for selection of candidates.

After a prima facie scrutiny of application forms by the

Selection Committee, candidates are made to undergo a

round of interview(s) and aptitude test(s).

17. Thereafter, an evaluation is done on the basis of marks that

are awarded or computed as per the criteria. These are

extracted here for easy reference:

“8. Procedures of selection: ……. (3) Academic qualifications, training, performance in the TET, Extra Curricular activities and performance in viva-voce or interview and Aptitude test, shall be computed in the manner as mentioned in Table A below:-

9

Sl. No. Item for Evaluation Max. Marks (i) Madhyamik pass under the 05 West Bengal Board of Secondary Education or its equivalent (ii) Higher Secondary pass under 10 the West Bengal Council of Higher Secondary Education or its equivalent (iii) Training as specified by NCTE 15 (iv) Teacher Eligibility Test (TET) 05 (v) Extra-Curricular Activities 05 (vi) Viva-Voce or Interview 05 (vii) Aptitude Test 05 Total 50

Note 1.- The percentage of marks obtained by the candidate in the Madhyamik Examination or its equivalent excluding additional marks, if any, shall be reduced proportionately to marks obtained out of 5.

Note 2.- The percentage of marks obtained by the candidate in the Higher Secondary, Madhyamik Examination or its equivalent excluding additional marks, if any, shall be reduced proportionately to marks obtained out of 10.

Note 3.- The percentage of marks obtained by the candidate in the relevant Teacher Training shall be reduced proportionately to marks obtained out of 15.

Note 4.- The percentage of marks obtained by the candidate in the TET Examination shall be reduced proportionately to marks obtained out of 5.

Note 5.- Marks out of maximum five (5) Marks as mentioned in Sl. No. (v) of Table A of this rule shall be awarded to the candidates, including para teacher, in the following manner:-

Sl. Extra Curricular Activities Marks No. 1 Games and Sports 1 2 National Cadet Corps (NCC) 1 3 Arts and Literature 1 4 Performing Art (Drama) 1 5 Music 1

10 Total: 5

18. The evaluation criteria envisages marks to be awarded on

relevant academic qualifications, NCTE-mandated training,

performance in TET, extra-curricular activities, performance

in the viva-voce and aptitude test to the aspirants. Even

within the criteria, extra-curricular activities are to be

awarded as per the candidate’s experience in music, arts,

drama, literature, etc.

19. As specified under the Recruitment Rules, 2016, the panel

under Rule 2(l) of eligible/selected candidates is to be

prepared bearing in mind the aggregate of marks provided

in Rule 8(3) and Table A appended thereto. It is clear that

the evaluation criteria to be taken into account as per Table

A and Rule 8(3) is a far more comprehensive method of

evaluating a candidate’s suitability for the post than the

performance in TET i.e., a qualifying examination for

teaching eligibility. The impugned judgment however

directed that appointments against the remaining 3929

vacancies shall be made in a descending order of candidates’

11 respective inter-se positions in TET Eligibility List 2014.

20. Therefore, the manner of shortlisting candidates for

appointment as directed by the Division Bench is at

loggerheads with and in departure from the procedure

envisaged under Rule 8. Being inconsistent with the

Recruitment Rules, 2016, such a direction cannot be

sustained.

21. The next issue is whether the remaining 3929 vacancies are

to be treated exclusively as part of 16,500 vacancies for

which the recruitment process commenced via a Notification

dated 23.12.2020, or whether such vacancies can be carried

forward to the next recruitment cycle that commenced via a

Notification dated 29.09.2022 instead.

22. Although the first advertisement reflected a total of 16,500

vacancies, the Merit List (notified on 15.02.2021) was only

for 15,284 candidates. Thereafter, two additional Merit Lists

with 478 and 738 candidates respectively were notified

thereby taking the total count to 16,500. During the

proceedings before the High Court, the learned Single Judge

on 22.02.2021 passed an interim order staying

12 appointments from the Merit List notified on 15.02.2021.

However, the Division Bench by its order on 04.03.2021

declared that the Board is bound by the said Merit List

dated 15.02.2021 and permitted appointments to be made

to the 15,284 posts. Thereafter, regular appointments came

to be made.

23. Since the panel expired after one year under Rule 12 of the

Recruitment Rules, 2016, the Board issued a fresh

advertisement to fill up 11,765 vacancies. It was argued that

the unfilled vacancies should be treated exclusively as a

part of the recruitment process initiated through

Notification dated 23.12.2020 and the Court may modify the

Division Bench direction to the extent that the 3929

vacancies are filled up on the basis of merit determined in

consonance with Rule 8 of the Recruitment Rules, 2016. The

aforementioned argument can be accepted only if a legal

justification is found for the Writ Petitioner’s appointment to

the 16,500 posts.

24. To better understand whether such a panel can be utilised

for appointment after its expiry and if there exists a legal

13 right to be considered for appointments to the notified

16,500 vacancies, it is relevant to take note of the ratio in

the following judgments:

i. State of Orissa & Anr. v. Raj Kishore Nanda & Ors.1:

“16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage.”

ii. Union of India v. B. Valluvan2:

“17. The life of a panel ordinarily is one year. The same can be extended only by the State and that too if the statutory rule permits it to do so. The High Court ordinarily would not extend the life of a panel. Once a panel stands exhausted upon filling up of all the posts, the question of enforcing a future panel would not arise. It was for the State to accept the said recommendations of the Selection Committee or reject the same. As has been noticed hereinbefore, all notified vacancies as also the vacancy which arose in 2000 had also been filled up. As the future vacancy had already been filled up in the year 2000, the question of referring back to the panel prepared in the year 1999 did not arise. The impugned judgment, therefore, cannot be sustained.”

iii. Girdhar Kumar Dadhich v. State of Rajasthan3:

“16. Furthermore, the select list would ordinarily remain valid for one year. We fail to understand on what basis 1 (2010) 6 SCC 777 at 783. Para 16.

2 (2006) 8 SCC 686, Para 17.

3 (2009) 2 SCC 706 at 709, Para 16.

14 appointments were made in 2003 or subsequently.

Whether the validity of the said select list was extended or not is not known. Extension of select list must be done in accordance with law. Apart from a bald statement made in the list of dates that the validity of the said select list had been extended, no document in support thereof has been placed before us.”

iv. State of Bihar v. Mohd. Kalimuddin4:

“8. As held in the case of Shankarsan Dash [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 :

(1991) 2 SCR 567] even if vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed, unless the relevant rules indicate to the contrary. It is indeed expected of the State to act bona fide and for valid reasons in refusing to make the appointments after the selection process has been gone through……..

Without knowing the nature of change it was not open to the High Court to anticipate the policy and brand it as unreasonable.

9. For the above reasons, we are of the opinion that even if it is assumed that the panel or select list had not expired at the date of filing of the writ petition, the refusal on the part of the Government to make appointments from the panel or select list, vide letter dated 27-5-1993, could not be condemned as arbitrary, irrational and or mala fide. We, therefore, reverse the view taken by the High Court, set it aside and hold that the original writ petition was liable to be dismissed and we hereby dismiss the same. No order as to costs.”

25. The opinion expressed in the above judgments makes it

4 (1996) 2 SCC 7 at 12. Paras 8 & 9.

15 clear that a panel or a Merit List cannot be treated as if it

exists in perpetuity, which will facilitate making

appointments as and when required. When the panel

expires or after the selection process is over with most posts

being filled, the benefit of appointments cannot be given

unless the panel’s validity is legally extended. However, no

such extension of the panel’s validity was granted. In fact, in

conclusion of the earlier process, a fresh recruitment

process was undertaken vide Notification dated 29.09.2022,

through which, 9500 candidates have already been

appointed.

26. That apart even when vacancies are notified and an

adequate number of candidates are shortlisted, these

candidates do not acquire an indefeasible right to be

appointed against those vacancies. Multiple factors are to be

taken into account by the Board, including suitability as per

district, age, language, etc. before appointments are made.

For such reasons 3929 vacancies remained unfilled by the

time the panel’s validity expired. Before that, 12,571

appointments were made.

16

27. As earlier noted, the selection process for appointment to

the posts of primary teacher is to be made by assessment of

merit by the Selection Committee as notified under Rule 8 of

the Recruitment Rules, 2016. The recruitment process

initiated on 23.12.2020 cannot continue indefinitely. The

2020 recruitment process had concluded and the fresh

recruitment process commenced thereafter vide notification

dated 29.09.2022. It would therefore not be appropriate for

this Court to direct appointments to be made against the

remaining 3929 vacancies, from the already-expired Merit

List.

28. Dr. Menaka Guruswamy, learned senior counsel, placed

heavy reliance on the ratio in Dinesh Kumar Kashyap & Ors.

v. South East Central Railway & Ors. 5 to contend that

although the selected candidate may not have any vested

right to be appointed against the available vacancies but

when the employer decides not to fill up the posts, the

discretion is to be exercised judiciously. On this aspect,

suffice it would be to say that the Rules provided for shelf

5 (2019) 12 SCC 798.

17 life of one year for the panel list. Admittedly, extension of the

said list (notified on 15.02.2021) was not granted by any

authority. As the decision to not act upon the expired select

list is based upon the provisions of the Rules, we are

disinclined to accept the argument advanced by the learned

senior counsel based on the ratio in Dinesh Kumar Kashyap.

It may also be noted that the candidates in Dinesh Kumar

Kashyap (supra) had approached the Court during the

validity of the select list unlike in these matters where the

first batch of Writ Petitions came to be filed in May 2022,

i.e., roughly three months after the expiry of the said Merit

List in February 2022.

29. In light of the above discussion, the following conclusions

are reached:

i. The manner of shortlisting candidates for appointment

as suggested by the Division Bench in the impugned

judgments is inconsistent with the procedure laid

down under Rule 8 of the Recruitment Rules, 2016, and

those, cannot be sustained.

ii. The Panel or Merit List as notified on 15.02.2021 stood

18 extinguished after expiry of one year i.e., on

15.02.2022, as per Rule 12 of the Recruitment Rules,

2016.

iii. No extension by any competent authority was granted

to the 15.02.2021 Panel and therefore no relief can be

granted to candidates who approached the court in

May 2022, i.e., long after the panel stood extinguished.

iv. No further appointments is permissible from the

recruitment process initiated on 23.12.2020 when a

fresh recruitment process has commenced.

30. The impugned judgment rendered by the Division Bench on

11.11.2022 and the earlier direction given by the learned

Single Judge on 26.09.2022 are accordingly set aside. The

concerned 252 Writ Petitioners and others who are sailing

with this group, do not have any legitimate claim for

appointments, to the remaining vacancies in the form of the

23.12.2020 recruitment process. The appeals stand allowed

accordingly.

31. The IA No. 28252 of 2024 and IA No. 28255 of 2024 are

allowed to the extent of the prayers made by the

19 applicant(s). All pending application(s), if any, including

impleadment or intervention application(s), shall stand

disposed of.

CIVIL APPEAL NO. 1873 OF 2024

32. In view of the order passed in Civil Appeal Nos. 1875-1876

of 2024, this appeal stands disposed of.

33. All pending application(s), if any, including impleadment/

intervention application(s) shall stand disposed of.

CIVIL APPEAL NO. 1874 OF 2024

34. In view of the order passed in Civil Appeal Nos. 1875-1876

of 2024, this appeal stands disposed of.

35. All pending application(s), if any, including impleadment/

intervention application(s) shall stand disposed of.

..........................................J. (HRISHIKESH ROY)

..........................................J. (PRASHANT KUMAR MISHRA) NEW DELHI;

MAY 09, 2024.

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