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REPORTABLE

THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL   APPEAL NO.5824 OF 2019 (ARISING OUT OF SLP (C) NO. 30035 OF 2016)

West Bengal Central School Service  Commission & Ors.                 … Appellants

VERSUS

Abdul Halim & Ors.             … Respondents

J U D G M E N T

Indira Banerjee, J.

Leave granted.  

2. Heard  Mr.  Rana  Mukherjee,  learned  senior  counsel  for  the

Appellants  and  Mr.  Debal  Banerji,  learned  senior  counsel  for  the

Respondent No.1.  

3. This  appeal  is  against  a  final  Judgment  and  order  dated

27.6.2016 of a Division Bench of Calcutta High Court dismissing an

appeal being FMA No.3324/2015 filed by the Appellants against an

order  dated  19.4.2010  passed  by  the  Single  Judge  allowing  Writ

Petition  No.21512(W)  of  2009  filed  by  Respondent  No.1  inter  alia

cancelling  the  candidature,  empanelment  and  selection  of  the

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Respondent No.1 for the post of Assistant Teacher in Arabic (Pass) in

Jiaruddintola High School, a Bengali medium school in District Malda

in West Bengal, hereinafter referred to as “School”.   

4. The West Bengal Central School Service Commission issued an

advertisement No.01/AT/08 dated 26.8.2008 inter alia  in the issue of

the  Bengali  daily  “Aajkaal”  published  on  27.8.2008, inviting

applications for the posts of Assistant Teacher as specified in the said

advertisement.   

5. It appears that there were vacancies inter alia in the posts of

two categories of teachers, that is, the pass category for which the

essential minimum educational qualification was Bachelor’s Degree

in the Pass course from any UGC recognized university having the

concerned subject as a combination subject of at least 300 marks at

the degree level or 200 marks in the old 2-year Degree course, and

the  Honours/Post  Graduate  category  for  which  the  essential

minimum  qualification  was  Bachelor’s  Degree  with  Hons.  or

alternatively  Master’s  Degree  in  the  concerned  subject  from any

UGC  recognized  university.  For  both  the  above  categories

qualification in Teachers’ Training such as 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 School

Service  Commission  Act,  1997  and  in  supersession  of  the  West

Bengal  School  Service  Commission  (Selection  of  Persons  for

Appointment to the Post of Teachers) Rules, 2006, the Government of

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West  Bengal  framed  the  West  Bengal  School  Service  Commission

(Selection of Persons for Appointment to the Post of Teachers) Rules,

2007 (hereinafter referred to as the “Rules”).   Rule 5 of  the Rules

provides as follows:-  

“  5.  Additional  essential  qualification  of  candidate.-  A candidate willing to be selected as a Teacher in any School or Madrasah, having Bengali or English or Hindi or Nepali or Oriya or  Santhali  or  Telegu  or  Urdu  as  the  medium of  instruction, must  have  Bengali  or  English  or  Hindi  or  Nepali  or  Oriya  or Santhali  or  Telegu  or  Urdu,  as  the  case  may  be,  as  first  or second or third language at any of  the Secondary or  Higher Secondary or Graduation level -  

(a) at Secondary level or the Board or Board of Madrasah or equivalent; or  

(b) at Higher Secondary level of the Council or equivalent; or  

(c)  at  any  subsequent  higher  level  of  education  in  that language paper.”   

    The said advertisement No. 01/AT/08  inter alia  set forth the

eligibility  criteria  for  the  teaching  posts  advertised.

Paragraph/Note 2 of the said advertisement read:-  

“Medium  of  instruction……  Vacancies  are  mainly  in Bengali  medium  schools  (excluding  Madrasahs). Candidates applying for School (excluding Madrasah) with particular language as medium must have that language of  the  medium as  first  or  second  or  third  language  at Secondary level of the West Bengal Board of Secondary Education/West  Bengal  Board  of  Madrasah Education  or from any equivalent Board or at Higher Secondary Level of the West Bengal Council of High Secondary Education or from  any  equivalent  Board/Council  or  must  have succeeded at any subsequent higher level of education in that language paper.”

7. Pursuant to the aforesaid advertisement the Respondent No. 1

applied  for  the  post  of  Assistant  Teacher  of  Arabic  in  a  Bengali

medium  school  in  the  format  prescribed.   It  appears  that  the

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Respondent No.1 was educated outside the State of West Bengal and

he did not have Bengali as a subject either at the Secondary level or

at the Higher Secondary level or at the graduation or post graduation

level.    

8. It is the case of the Respondent No.1 that he had successfully

completed a one year Certificate Course in Bengali conducted by the

University  of  Delhi,  Department  of  Modern  Indian  Languages  and

Literary Studies.   The syllabus for the said Certificate Course, which

was a part time course comprised of:-  

1.  Paper -I  :  Grammar and Translation                        -   100 Marks

2.  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:-    

Paper – I : Grammar and Translation    100 Marks  

(a) Elementary Grammar 50 Marks  

(b) Translation from English to Language concerned 25 Marks  

(c) Translation from the Language concerned to  English

25 Marks  

Paper – II: Composition and History of Literature     100 Marks  

1) Paragraph writing 15 Marks  

2) Story writing 15 Marks  

3)               Letter writing 15 Marks  

4) Comprehension 25 Marks  

5) History of Literature 30 Marks  

Paper- III: Oral Reading, Writing and Conversation 100 Marks

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10. The  Respondent  No.1  has  annexed  Statement  of  Marks

awarded to him by the University of Delhi in the Certificate Course

examination in Bengali.   It appears that he obtained aggregate of

155  Marks  out  of  300  Marks.   The  Respondent  No.1  obtained  57

Marks on 100 in the 1st  Paper, 53 Marks on 100 in the 2nd paper and

45 on 100 in the 3rd paper (Oral).    

11. It  appears  that  after  applying  pursuant  to  the  aforesaid

advertisement  along  with  copies  of  all  certificates  including  the

certificate course in Bengali, the Respondent No.1 was issued admit

card to appear for the 9th Regional Level Selection Test scheduled to

be held on 21.12.2008.    

12. The Respondent No.1 was successful in the Written Test after

which a letter dated 25.5.2009 was issued to the Respondent No.1

asking him 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  the  assumption  that  you  fulfil  the  requirements  of educational qualifications etc. in  terms of Advertisement made  by  the  Commission  in  connection  with  the Examination.  ………………..

Please note that your candidature is liable to be rejected at any stage, if you are found ineligible according to the terms of Advertisement No.01/AT/08 dated 26.08.08, the WBSSC Act,  1997,  the  WBSSC (Selection  of  Persons  for Appointment to the Post of Teachers) Rules, 2007 and in terms of provisions of Indian Penal Code without assigning any reason as well as in terms of ITEM NOS. 17, 18 and 19 of the Application Form meant for 9th RLST (AT), 2008.”

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13. The Respondent No.1 was asked to produce all documents in

support of his eligibility in original, which he did, at the time of the

personality test.  The Respondent No.1 was, thereafter, empanelled

for the post of Assistant Teacher in Arabic on the basis of results of 9th

Regional Level Selection Test (AT) 2008.   The Appellant thereafter

invited  the  Respondent  No.  1  for  counselling  on  21.8.2009  for

recommendation of his candidature for the post of Assistant Teacher

in Arabic of the Pass category.  

14. On  the  date  of  counselling  i.e.,  27.8.2009  the  Respondent

No.1  opted  for  appointment  as  an  Assistant  Teacher  in  Arabic  In

Jiaruddintola High School, District- Malda.     

15. After  counselling,  while  the  Respondent  No.1  was  awaiting

appointment  letter,  he  received  an  impugned  communication

cancelling his recommendation/empanelment and his selection to the

School on the ground that he had opted for a Bengali medium school

though he did not have Bengali as a subject either at the Secondary

or the Higher Secondary or the graduation level.   

16. The Respondent No.1 filed Writ Petition No.2151(W) of 2009 in

Calcutta High court, challenging the impugned communication on the

ground that he was eligible for the post, since he had successfully

completed the Certificate Course in Bengali from the Delhi University.

17. When  the  writ  petition  was  taken  up  for  hearing,  no  one

appeared  on  behalf  of  the  Appellants.   Nor  had  any  affidavit  in

opposition been filed on behalf of the Appellant.   The learned Single

Judge allowed the writ petition ex parte observing that the case of the

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Respondent  No.1  in  Paragraphs  15  and  16   of  the  writ  petition

remained uncontroverted.  

18. The  Single  Judge  held  that  the  Statement  of  Marks  dated

9.5.2008,  issued  by  the  University  of  Delhi,  showed  that  the

Respondent No.1 had successfully completed the Certificate Course

in Bengali, obtaining 155 out of 300 Marks, and further proceeded to

hold  that in view of Paragraph 2 of the advertisement referred to

above  and,  in  particular,  the  last  Clause,  which  read  “must  have

succeeded  at  any  subsequent  higher  level  of  education  in  the

language paper”, the Respondent No.1, who had passed Certificate

Course in Bengali from University of Delhi, was justified in contending

that the Commission had wrongfully cancelled his selection for the

post of Assistant Teacher of Arabic in the school.   The Single Judge,

therefore,  directed the Appellant No.2 to offer appointment to the

Respondent No.1 within a week.    

19. Being aggrieved by the judgment and order dated 19.4.2010

passed  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

was dismissed by impugned order dated 27.6.2016 which is under

appeal.

20. The Division Bench rejected the argument advanced on behalf

of  the  Appellants  that  a  one  year  part  time  Certificate  Course  in

Bengali from 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.1 indisputably did not come under Rule 5(a) or Rule

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5(b).   The  question  was  whether  he  came  under  Rule  5(c).   The

Division  Bench  answered  the  aforesaid  question  in  favour  of  the

Respondent No.1 holding as follows:-  

“Since the Rules do not specifically state that Certificate Course is not a course which is subsequent to higher level of  education  and  the  respondent  No.1/writ  petitioner fulfilled the parameters  of  Rule  5(c),  the learned Single Judge was justified is passing the order impugned”  

21. The  Division  Bench,  by  its  order  under  appeal,  directed

Appellant  No.2 to recommend  Respondent No.1 for appointment as

Assistant Teacher of Arabic (pass) in Bengali to the school.    

22. The  Division  Bench  and  the  Single  Bench  have  erred  in

arriving  at  the  finding  that  the  Respondent  No.1  had  fulfilled  the

requirements of Paragraph 2 of the Advertisement and/or Rule 5(c) of

the Rules.

23. With the greatest of respect, the Division Bench as also the

Single Judge failed to appreciate that the question of eligibility of the

Respondent No.1 for the post of Assistant Teacher of Arabic, in terms

of Paragraph 2 of the Advertisement and/or Rule 5(c) of the 2007

Rules, necessitates an enquiry into and determination of the factual

issue of whether Bengali taught in the Certificate Course conducted

by the Department of Modern Indian Languages and Literary Studies

of  the University  of  Delhi  was of  a  level  higher than the level  of

Bengali  taught  at  the  Higher  Secondary  level  of  the  West  Bengal

Council of Higher Secondary Education or any equivalent Board.

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24. A part time Certificate Course in a language, conducted by a

University for graduates, is not necessarily of a level higher than the

Higher  Secondary  level  of  the  West  Bengal  Council  of  Higher

Education or  equivalent  Board or  for  that  matter,  higher than the

Secondary level of the West Bengal Board of Secondary Education or

an equivalent Board  

25. A  Certificate  Course  could  very  well  be  a  basic  course  for

graduates who are beginners in the language.   The syllabus for the

Certificate Course in Bengali shows that out of three papers of 100

marks each, in which candidates are tested there is one Oral Paper of

100  marks  for  ‘Reading’  ‘Writing’  and  ‘Conversation’,  which  are

generally tested at the primary or at best the middle school level.

Moreover  the  Certificate  Course  is  not  meant  for  candidates  who

have studied Bengali earlier.

26. The reasoning of the Division Bench that the Single Bench was

justified  in  allowing  the  writ  petition,  since  the  rules  do  not

specifically state that the Certificate Course is not a course which is

subsequent to higher level of education is patently misconceived.   It

is  preposterous  to  expect  that  statutory  rules  for  appointment  of

teacher in the State of West Bengal, would not only have to prescribe

the minimum qualifications, but also specify which of the certificates

issued by Boards or Universities all over the country could not be

considered  as  of  standard  equivalent  to  the  standard  of  Bengali

taught by a University at the under graduate level.

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27. It is well settled that the High Court in exercise of jurisdiction

under Article 226 of the Constitution of India does not sit in appeal

over an administrative decision.  The Court might only examine the

decision  making  process  to  ascertain  whether  there  was  such

infirmity in the decision making process, which vitiates the decision

and calls  for  intervention  under  Article  226 of  the  Constitution  of

India.  

28. In  any  case,   the  High  Court  exercises  its  extraordinary

jurisdiction under Article 226 of the Constitution of India to enforce a

fundamental right or some other legal right or the performance of

some legal duty.  To pass orders in a writ petition, the High Court

would necessarily have to address to itself the question of whether

there  has  been  breach  of  any  fundamental  or  legal  right  of  the

petitioner, or whether there has been lapse in performance by the

respondents of a legal duty.  

29. The  High  Court  in  exercise  of  its  power  to  issue  writs,

directions or orders to any person or authority to correct quasi-judicial

or even administrative decisions for enforcement of a fundamental or

legal right is obliged to prevent abuse of power and neglect of duty

by public authorities.   

30. In exercise of its power of judicial review, the Court is to see

whether the decision impugned is vitiated by an apparent error of

law.    The test  to determine whether a decision is vitiated by error

apparent on the face of the record is whether the error is self-evident

on the face of the record or whether the error requires examination

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or argument to establish 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 said to be an error on the face of the record, as

held by this Court in  Satyanarayan vs. Mallikarjuna reported in

AIR 1960 SC 137.   If the provision of a statutory rule is reasonably

capable of two or more constructions and one construction has been

adopted, the decision would not be open to interference by the writ

Court.  It is only an obvious misinterpretation of a relevant statutory

provision, or ignorance or disregard thereof, or a decision founded on

reasons which are clearly wrong in law, which can be corrected by

the writ Court by issuance of writ of Certiorari.  

31. The sweep of power under Article 226 may be wide enough to

quash  unreasonable  orders.   If  a  decision  is  so  arbitrary  and

capricious that no reasonable person could have ever arrived at it,

the same is liable to be struck down by a writ Court.  If the decision

cannot rationally be supported by the materials on record, the same

may be regarded as perverse.   

32. However,  the  power  of  the  Court  to  examine  the

reasonableness of  an order of  the authorities does not  enable the

Court  to  look  into  the  sufficiency  of  the  grounds  in  support  of  a

decision to examine 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  decision which  the Court  thinks

that  no  reasonable  person  could  have  taken,  which  has  led  to

manifest  injustice.   The  writ  Court  does  not  interfere,  because  a

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decision is not perfect.      

33. In entertaining and allowing the writ petition, the High Court

has lost sight of the limits of its extraordinary power of judicial review

and 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 who

had been educated outside the State of West Bengal, did not have

Bengali  as  a   subject  at  the  Secondary,  Higher  Secondary,

graduation or post graduation level.   The interpretation of the  last

Clause of Paragraph 2 of the advertisement and/or Rule 5 (c) of the

Rules,  which  reads  “must  have  succeeded  in  higher  level  of

education in that language paper”  by the authorities as success in

the language paper at the graduation level or the post graduation

level,  or alternatively an examination in the language paper of a

level which is equivalent to the level of the language as taught in

the graduation level and not  any part time course conducted by a

University is a plausible if  not possible interpretation which ought

not to have been interfered with by the Writ Court.   

35. This  Court  cannot  but  take  judicial  notice  of  the  fact  that

universities  do  not  usually  allow  students  to  opt  for  a  language

subject at the graduation level if the subject was not cleared at the

Higher Secondary level.   As observed above  documents annexed by

the Respondent No.1 reveals that candidates who have studied the

language at some level before the graduate level are debarred from

admission to the Certificate Course, which makes it obvious that the

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course is of elementary level.     

36. Significantly,  the  Respondent  No.1  has  not  produced  any

document  or  certificate  of  the  Delhi  University  certifying  that  the

certificate course in Bengali  is  of  a standard equivalent to Bengali

language at the post Higher Secondary level.  

37. The judgment and order under appeal  cannot  be sustained

and the same is set aside.  Accordingly, the appeal is allowed with no

order as to costs.  

.................................J.    (R. BANUMATHI)

.................................J. (INDIRA BANERJEE)

JULY 24, 2019 NEW DELHI