Calcutta High Court (Appellete Side)
Jakir Hossain Mondal & Ors vs The State Of West Bengal & Ors on 10 September, 2025
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Apurba Sinha Ray
MAT 1113 of 2025
CAN 1 of 2025
Jakir Hossain Mondal & Ors.
Vs.
The State of West Bengal & Ors.
With
MAT 1114 of 2025
CAN 1 of 2025
Md. Habil & Ors.
Vs.
The State of West Bengal & Ors.
With
MAT 1135 of 2025
CAN 1 of 2025
Manab Mandal & Ors.
Vs.
The State of West Bengal & Ors.
With
MAT 1162 of 2025
CAN 1 of 2025
Jayanta Sardar & Ors.
Vs.
The State of West Bengal & Ors.
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For the Appellants : Mr. Soumya Majumder, Sr. Adv.,
(in MAT 1113 of 2025) Mr. Vishak Bhattacharya, Adv.,
Ms. Ruchira Chatterjee, Adv.,
Ms. Biyanka Bhattacharya, Adv.
For the West Bengal : Mr. Pratik Dhar, Sr. Adv.,
Madrasah Service Mr. Prosenjit Mukherjee, Adv.,
Commission Ms. Madhurima Sarkar, Adv.
For the Appellants : Mr. Soumya Majumder, Sr. Adv.,
(in MAT 1114 of 2025) Mr. Anindya Bose, Adv.,
Mr. Golam Mohiuddin, Adv.,
Mr. Mridul Biswas, Adv.
For the Appellants : Mr. Firdous Samim, Adv.,
(in MAT 1135 of 2025) Ms. Gopa Biswas, Adv.,
Mr. Mainak Ghosal, Adv.,
Mr. H.Z. Molla, Adv.,
Ms. Rajashree Saha, Adv.
For the State : Mr. Swapan Banerjee, Ld. AGP,
(in MAT 1135 of 2025) Ms. Sumita Shaw, Adv.,
Mr. Soumen Chatterjee, Adv.
For the Appellants : Mr. Partha Sarathi Bhattacharya, Sr. Adv.,
(in MAT 1162 of 2025) Mr. Anindya Bose, Adv.,
Mr. Golam Mohiuddin, Adv.,
Mr. Mridul Biswas, Adv.
For the State : Mr. Biswabrata Basu Mallick, Ld. A.G.P.,
(in MAT 1162 of 2025) Mr. Tamal Taru Panda, Adv.
For the Appellants : Mr. Anindya Mitra, Sr. Adv.
(Added respondent) Mr. Uday Sankar Chattopadhyay, Adv.,
CAN 2 of 2025 Ms. Bidisha Chakraborty, Adv.
For the Appellants : Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
(Added respondents) Mr. Suman Sankar Chatterjee, Adv.,
CAN 3 of 2025 Mr. Pronay Basak, Adv.
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Hearing concluded on : 26th August, 2025
Judgment on : 10th September, 2025
Soumen Sen, J:
1. The appellants are aggrieved by the common judgment and order passed by the learned Single Judge on 16th July, 2025 whereby the challenge to the notices dated 5th August, 2024 and 9th August, 2024 issued by the West Bengal Madrasah Service Commission (in short „WBMSC‟) had failed. The writ petitions were dismissed. Those writ petitions were heard along with the petitions filed by the interveners in this proceeding. The writ petitions filed by the interveners being WPA No.845 of 2025 and WPA No.1436 of 2025 before the learned Single Judge were allowed.
2. All the writ petitions were heard together and disposed of by the common judgment. In the writ petitions filed by the interveners the grievance was that the WBMSC was delaying the process in completing the recruitment process.
3. Before we advert to the submissions made on behalf of the WBMSC, we briefly narrate the facts which are as follows:
4. In or about 27th March, 2010, an advertisement was issued by the WBMSC in respect of the examination of 1st SLST (NT) Group-D. On 12th November, 2010, the Government of West Bengal Minority Affairs and Madrasah Education Department prepared and published a Rule, namely, 4 West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of Persons for Appointment and Transfer to the post of Teacher & Non-Teaching Staff) Rules, 2010 (hereby referred to as „Recruitment Rules, 2010‟). The recruitment process for the 1st SLST was to be held in three sessions and 1,43,303 candidates participated in the said examination. On 29th May, 2011, the written examination was held for 26,445 candidates after they were successful in the preliminary screening examination. During the pendency of the said selection process, the writ petition being WP 20650(W) of 2013 was filed on 12th March, 2014 challenging some of the sections of the West Bengal Madrasah Service Commission Act, 2008. On 12th March, 2014, the learned Single Judge by a judgment declared Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 as ultra vires Article 30 of the Constitution of India as a result whereof the Commission was unable to proceed with the said recruitment process of Group-D posts of 1st SLST (NT), 2010. Thereafter, an appeal was preferred by the Commission being MAT 473 of 2014 and AST 130 of 2014. The Hon‟ble Division Bench by the judgment and order dated 9th December, 2015 declared the entire Act of 2008 as unconstitutional. A Special Leave Petition was filed on 14th March, 2016 by a wait listed candidate of 5th SLST, 2011(AT) being SLP(C) No.6661 of 2016 in which an interim order was passed on 14th March, 2016 whereby the impugned final judgment and order was stayed. Thereafter, on 17th November, 2017 the Hon‟ble Supreme Court permitted the West Bengal Madrasah Service Commission to continue with the selection process, 5 however, with the restriction that appointment shall not be made unless otherwise ordered by the Hon‟ble Court. The said order reads as follows:
"Heard.
The selection process by Madrasah Service Commission may go on. However, the appointment shall not be made, unless otherwise ordered by this court.
In case result has not been declared, it shall not be declared till next date.
I.A. No.116064/2017 stands disposed of accordingly.‖
5. During the pendency of the said Special Leave Petition on 24th January, 2018, one Soumen Malakar, an aspirant of the said 1st SLST (NT), 2010 filed a writ petition being WP No.1722(W) of 2018, inter alia, seeking direction for publication of result of 1st SLST (ST), 2010. The said writ petition was disposed of by the learned Single Judge on 23rd July, 2018 by directing the Commission to "forthwith intimate to the writ petitioner the result of the evaluation of answer scripts and if he is qualified then to prepare the panel in terms of Rule 18 of the said Rules and if he is eligible as qualified candidate in terms of such list of candidates then the said respondents shall issue invitation letter to him for the personality test in terms of Rule 19".
6. The Commission was aggrieved by the said direction and had preferred an appeal being MAT 907 of 2018. The Commission has referred 6 to the pendency of the Special Leave Petition. Curiously and surprisingly, the Commission did not inform the learned Single Judge about the pendency of the Special Leave Petition and the interim order passed in SLP (C) No.6661 of 2016 on 17th November, 2017.
7. In the Memorandum of Appeal, two-fold grounds were taken by the Commission in assailing the impugned judgment. Firstly, it was contended that a Special Leave Petition is pending against the judgment of the Hon‟ble Division Bench dated 9th December, 2015 in which the West Bengal Madrasah Service Commission Act, 2008 was declared ultra vires. Secondly, in terms of the order dated 17th May, 2018 passed by the Hon‟ble Supreme Court only publication of the result of recruitment process of the year 2014 was permitted restraining the West Bengal Madrasah Service Commission to undertake any type of further recruitment as well as publication of the result of 1st State Level Selection Test (Non-Teaching) Group-D posts. The learned Single Judge did not give any opportunity to the Commission to file an affidavit to bring on record such development in the meantime. The prayer for the direction to publish the result of 1st State Level Selection Test (NT) Group-D cannot be treated as a Public Interest Litigation and at the best the writ petitioner (Soumen Malakar) can pray for the information regarding his result of 1st SLST (NT) Group-D posts.
8. In the meantime, on 17th May, 2018 in applications seeking impleadment as party and clarifications the Hon‟ble Supreme Court taking into consideration that incumbents who have been possessing requisite qualification in terms of notification dated 3rd March, 2016 and were working in several Madrasahs were not being paid salaries for the period 7 they have served, disposed of such application, inter alia, by the following order: -
―5. As there are large number of vacancies existing in the various Madrasahs, we permit the declaration of the result for the recruitment process of the year 2014. However, no further recruitment process shall be undertaken. It is also stated by the State Government and Commission that only those Madrasahs who want to take the incumbents from the list of 2014 process, the Commission shall sponsor the names only to such Madrasahs, not to others. The process shall be done strictly and in accordance with the merit list of the candidates and the appointment so made, shall be subject to the final outcome of the case.
7. No equity shall be claimed on the basis of the appointment so made on stop-gap arrangement. Let such conditions be also mentioned in the order and that would be subject to the final outcome of these matters, and that may also be specifically incorporated in the order.‖ (emphasis supplied)
9. During the pendency of the appeal, the Hon‟ble Supreme Court in Sk. Mohd. Rafique Vs. Managing Committee, Contai Rahamania High Madrasah & Ors.1 set aside the order passed by the Hon‟ble Single Judge as well as the Hon‟ble Division Bench where the constitutional validity of some of the provisions of the West Bengal Madrasah Service Commission Act, 2008 were declared ultra vires.
10. After the aforesaid judgment, the appeal was disposed of on 4th February, 2020 by extending the time to complete the exercise as directed by the learned Single Judge within six months from the date of the said order.
1 (2020) 6 SCC 689 8
11. Before the Hon‟ble Division Bench, WBMSC filed a supplementary affidavit and in justification for seeking extension of time it was stated that innumerable candidates have appeared in the examination and the examiners appointed in this regard have not evaluated the answer scripts as yet. Because of the voluminous answer scripts to be evaluated by the examiners so appointed, the time limit in the impugned order appears to be insufficient. The prayer for such extension was not opposed by the writ petitioner (Sri Soumen Malakar) and in such facts and circumstances, the impugned order was modified by directing the Commission to complete the exercise within six months from date. The Hon‟ble Division Bench, however, made it clear that in view of the stand taken by the appellant that the evaluation of the voluminous answer scripts would require further time, the Hon‟ble Division Bench did not "delve to go deep into the legality and infirmity of the impugned order".
12. The Commission could not complete the process within the aforesaid timeline resulting in filing of multiple applications by the Commission and non-parties seeking diverse reliefs. While the Commission prayed for further extension of time due to disruption of public life due to pandemic the non-parties prayed for impleadment and implementation of the earlier order.
13. In the application for impleadment the applicants have stated that "the applicants' case is squarely connected with the issue in question in the application being CAN 4431 of 2020 in connection with MAT 907 of 2018"
and they are all supporting the contention and prayer made by the writ petitioner, namely, Sri Soumen Malakar in respect of whose petition MAT 9 907 of 2018 was filed. It was further contended that some of them filed writ petitions and the hearing of the writ petitions were adjourned by reason of pendency of the application filed by the Commission being CAN 4431 of 2020 for extension of time to comply with the earlier order. Both issues were disposed of in the order dated 12th September, 2023 in the following manner:-
―The Commission filed the instant appeal and the said appeal was disposed of declining to interfere with the order of the Single Bench on merit, but held that the time indicated in the said order by the Single Bench for completion of the entire exercise is too scanty and, therefore, the Division Bench modified the order to the extent that instead of 14 days the Commission shall comply the said direction within 6 months from the said date. The order of the Division Bench dated 4th February 2020 is the final order disposing of the mandamus appeal as well as the applications pending therein and, therefore, the Court lost seisin of the matter and, thus, became functus officio. Subsequently, an application for extension of time is taken out by the appellants stating that immediately after passing of the said order, there was a complete lockdown declared by the Government because of the pandemic having struck down globally, which impedes the progress in relation to the compliance of the order of the Single Bench and, therefore, the time may be extended. There is no dispute to the fact that while disposing of the instant appeal on 4th February, 2020 this Court directed the compliance of an order/direction passed by the Single Bench to be completed within 6 months and from the month of March, 2020, there was a complete disruption in the normal functioning of the Court as well as the normal functioning in the life of every individuals because of the pandemic, which continued for a considerable period of time. After resumption of normalcy into functioning, it is expected that the authorities would also show alacrity in compliance of the directions 10 passed therein and the moment they have taken out the application for extension of time to complete the entire exercise taking a shelter under the pandemic, we do not find any impediment in extending the time bearing in mind the disruption created by the pandemic.
At the time of hearing of the instant applications, several other issues are raised by the appellants impinging upon the merit of the order of the Single Bench as well as the appellate Court. It is submitted that subsequently certain illegalities and irregularities have been detected and, therefore, the Court should reopen the entire issues, but till date, no application has been taken out and the only application, which is pending before us, is the extension of time to complete the exercise and the applications seeking impleadment as parties.
So far as the impleadment of the present applicants are concerned, the appeal has already been disposed of and the application for extension of time having filed by the appellants is pending, which, in our opinion, does not confer any right into the applicants to be impleaded in the aforesaid applications and, therefore, CAN 7 of 2021 along with CAN 4 of 2021, CAN 5 of 2021, CAN 6 of 2021, CAN 10 of 2022, CAN 11 of 2022, CAN 12 of 2022, CAN 13 of 2022, CAN 14 of 2022, CAN 15 of 2022, CAN 16 of 2022, CAN 17 of 2023, CAN 18 of 2023 and CAN 19 of 2023 are hereby dismissed. CAN 8 of 2021 and CAN 9 of 2022 filed by the appellants are hereby disposed of by extending the time as indicated in the order dated 4 th February 2022 by 6 months from date.‖ (emphasis supplied).
14. Being aggrieved by the aforesaid order, namely, Ibrahim Mandal, Rabiul Islam, Mojammel Haque, Samiul Islam, Arif Billah Biswas, Md. Mojammel Mia, Abdul Rahaman Mallick, Md. Zimail Gazi, Satyajit Roy, Abdul Latif and Sk. Firoj filed a Special Leave Petition before the Hon‟ble Supreme Court. They were the applicants before the Division Bench whose 11 prayer for impleadment was rejected. They claimed that the Commission completed the appointment for the post of clerk and librarian in 2014 itself. They construed the order passed by the Hon‟ble Division Bench dated 12th September, 2023 as permission to the Commission to conduct a fresh written test for 74,619 candidates who were left out due to a policy decision of the Commission to re-conduct the entire process all over again. This was challenged in the Special Leave Petition being No.19069 of 2024. The order of the Special Leave Petition reads as follows:
―1. Application seeking permission to file the Special Leave Petition is granted.
2. Delay condoned.
3. Having heard learned Senior counsel for the petitioners at length and after carefully perusing the material placed on record, we are not inclined to interfere with the impugned order passed by the High Court.
4. The Special Leave Petition is, accordingly, dismissed.
5. All pending applications also stand disposed.‖
15. The Commission again could not complete the process within the extended time resulting in an application filed being CAN 20 of 2024 for seeking extension of time stipulated in the order dated 12th September, 2023, inter alia, on the grounds stated in paragraph 4 of the application which is set out for brevity and convenience: -
―i. The list of 1,01,064 candidates eligible for appearing in the written examination of Group D has been finalized. The Appellants craves leave to refer and rely upon the list of such candidates in a sealed cover at the time of hearing, if necessary.12
ii. Letters have been issued to District Magistrates of all Districts for selection of Examination Centres for Group-D, Peon of Non- Government, aided Madrasahs of West Bengal upon finalization of the list of 101064 candidates. Copy of the letter dated 5 January 2024 issued to the District Magistrates is annexed hereto and marked with letter ".....".
iii. In response to the letters issued to all the District Magistrates, Districts have received a tentative list of Examination Centres for Group-D Examination. Copy of the tentative list of Examination Centers received from the District Magistrates is annexed hereto and marked with letter "......."
iv. The list of 101064 candidates eligible for appearing at written examination of Group D has already been prepared.
v. The Appellants are in the process of identification of centers, fixing the date of examination and issuance of admit card.‖
16. It was further stated in the said petition that the WBMSC had issued a letter dated 6th March, 2024 to the District Magistrates seeking for the availability of examination centres to enable the appellants to conduct the examination shortly. The ground for inadequate infrastructure and staff were highlighted in paragraph 6 of the said petition for not being able to complete the entire process as directed earlier. Moreover, the declaration of general election to Lok Sabha, 2024 was also cited as reason for extension. The said application was disposed of by a Co-ordinate Bench on 13th June, 2024 with the following observation: -
―9. Interestingly, a plea is sought to be taken before us that in the affidavit-in-opposition to the writ-petition as well as in the instant appeal, relating to conducting the written-test after scrutinizing the applications filed by the aspirants; in this regard, 13 the letter dated 05.01.2024 is sought to be relied upon wherein the examination centre for conducting the first SLST (NT) 2010 was to be conducted. A litigant is not permitted to prevaricate its stand at the different stages of the proceedings. If the plea was taken in the writ- petition and the Court ultimately disposed of the proceeding even without recording any finding thereupon, it is deemed that the said plea has not been accepted by the Court and deemed to have been rejected.
10. Even before the Appellate Court it does not appear that any such plea was taken or argued at the time of hearing and the order of the Single Bench was affirmed with modification to the effect that the time limit for completion of the entire exercise is extended for a period of six months. Interestingly, the first application for extension was disposed of extending the time for a further period of six months which necessarily implies that such plea which is sought to be projected for the first time in the instant application, was not pressed and/or pursued as the authority decided to complete the exercise in due implementation of the directions passed by the Court.
11. A plea of res judicata also applies in the instant case. The plea which ought to have been taken or was taken and the decision have been taken finally, it would be deemed that the said issue has been decided finally and cannot be reopened at the subsequent stage of the proceeding. We are conscious that the plea of res judicata not only applies between two proceedings but has equal applicability at the different stages of the same proceeding. The principle of res judicata is based on a public policy. The fundamental policy of the country is to bring every litigation to its logical end and shall not allow the litigation to continue eternally.
The plea which has already been decided or comes within the purview of the explanations appended to Section 11 of the Code of 14 Civil Procedure, cannot be allowed to be re-agitated at the different stages of the proceeding as it is set at rest at one point of time.
12. The cascading effect of permitting the litigant to take a different stand at different stages is that the litigation would remain open and it would augment and encourage the litigations to travel in the docket of the Court and there will not be any certainty in the rights claimed by the parties.
13. We are unable to accept the contention of the applicant that a plea was taken that there has been a large discrepancy in the scrutiny process and, therefore, the authorities have decided to make a fresh scrutiny so as to invite several other eligible candidates to participate in the written examination.
14. Such plea having taken in the writ-petition as well as in the instant appeal but was not found favour cannot be re-agitated in an application seeking extension of time to complete the process. There is a compete apathy on the part of the applicant in implementing the order in its true spirit and there is a lackadaisical attitude perceived from the aforesaid conduct which needs reprimandation.
15. Since it relates to a recruitment process which is already delayed for nearly a decade, the authority must be sensitized and a sense of responsibility required to be percolated in them that any dormant and lethargic attitude has a ramification over the rights of the eligible candidates.
16. We do not find any sufficient reason which impedes the progress to be made for due implementation of the order of the Single Bench as modified by the Division Bench and the further plea of the moral code of conduct having imposed because of the declaration of the parliamentary election, could have been a plausible or reasonable ground. The order was passed as far back as on 12.09.2023, as indicated above, the moral code of conduct 15 became enforceable in the fag end of the month of March 2024 and, therefore, we do not find any plausible explanations having given in the instant application.‖ (emphasis supplied)
17. The Hon‟ble Division Bench taking a pragmatic view of the matter extended the time for a period of three months from the date to "complete the exercise strictly in terms with the order of the Hon'ble Single Bench as affirmed by the Division Bench" upon imposition of costs of Rs.2 lacs to be paid to the State Legal Services Authority within 15 days from the date of the order.
18. On 5th August, 2024, a notice was issued by WBMSC inviting 73,978 candidates for written examination to be held on 1st September, 2024.
19. On 4th August, 2024 the Commission published a notice to the effect that 24,577 number of candidates who appeared in the written examination held on 29th May, 2011 need not appear in written examination again.
20. On 5th August, 2024 the Commission published another notice in Bengali indicating 73,978 numbers of candidates (who are found to be successful in the screening test according to the Commission) and who could not appear in the written test as held on 29th May, 2011 have been permitted to appear in the written examination for the said test on 1st September, 2024.
21. On 9th August, 2024 a similar notice was published by the Commission in English.
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22. On 24th August, 2024 Hafizul Haque & Ors. filed a writ petition being WPA No.21918 of 2024 challenging the decision of the Commission to conduct another written test. As per the presentation form it was to be listed before the appropriate Bench on 3rd September, 2024.
23. On 1st September, 2024 pursuant to the aforesaid two notices dated 05.08.2024 and 09.08.2024 the Commission conducted written examination of 73,978 candidates.
24. On 12th September, 2024 the Commission published the list of successful candidates in the written examinations held on 29th May, 2011 and 1st September, 2024 for appearing in the personality test.
25. The Commission from 18th September, 2024 to 30th September, 2024 took personality test of 3,233 candidates.
26. On 24th September, 2024 Md. Habil & Ors. filed a writ petition being WPA No.24588 of 2024 challenging the decision of the Commission to conduct another written test. In the presentation form it was mentioned that the writ petition would be listed before the appropriate Court on 27th September, 2024.
27. On 4th October, 2024 the Commission published the final merit list of candidates who would be called for counselling to fill up 297 vacancies.
28. On 18th October, 2024 Basudeb Bej & Ors. filed a writ petition being WPA No.26237 of 2024 praying, inter alia, for setting aside of the notice dated 9th August, 2024 and cancellation of the written examination held on 1st September, 2024. It appears from the presentation form that the 17 writ petition was to be listed on 22nd October, 2024 before the appropriate Bench.
29. The legality and the validity of the notices dated 5th August, 2024 and 9th August, 2024 were challenged by the aforesaid appellants.
30. In the writ petitions mentioned above the grounds for challenge were the same, namely, the Commission could not have conducted a fresh written examination of some candidates in view of paragraph 17 of the judgment of the Hon‟ble Division Bench dated 13th June, 2024 which, inter alia, states:
―We are unable to comprehend the stand of the applicant that further written test is required to be conducted when the same was not accepted by the Single Bench as well as the Division Bench and the direction was plain and simple that after conducting the written examination the answer-scripts are to be evaluated and the panel is required to be prepared indicating the successful candidates.‖ The writ petitioners alleged that the decision to hold a fresh written examination after a long span of time was unreasonable, illegal and in violation of the principle of natural justice. There is no mechanism provided or mentioned in the Recruitment Rules, 2010 to counter the problems being faced by the Commission. The question papers were not same in case of separate examination and easier questions may have been given to make a pathway for favourites. The notice dated 9th August, 2024 is contrary to the order of the Hon‟ble Division Bench dated 13th June, 2024. The said judgment did not authorize or permit the Commission to conduct a fresh written examination of 73,978 candidates. The 18 action taken is indicative of a chance of nepotism and favouritism towards its chosen candidates.
31. The interventionists also filed writ petitions praying, inter alia, for issuance of writ upon the Commission to give appointments in terms of merit list dated October 4, 2024.
Submission on behalf of Appellants:
32. Mr. Soumya Majumder, learned Senior Counsel appearing on behalf of the appellants has submitted that the issuance of the said notices by the Commission was beyond its authority and jurisdiction as the entire selection process initiated in 2010 pursuant to the advertisement dated 27th March, 2010 must confine to the candidates who had undergone screening test and written examination held on 29th May, 2011. It is submitted that in the written examination 26,445 candidates appeared out of which 24,577 candidates were successful and due for personality test. The order of the learned Single Judge read with the subsequent orders of the Hon‟ble Division Bench in extending the time to comply with the entire exercise for recruitment does not permit holding of a second written examination for the self-same post by giving opportunity to other candidates who were not shortlisted for the written examination. It is submitted that the contention of the Commission that there were innumerable candidates and discrepancies that had revealed while scrutinizing their candidature consumed further time and accordingly time to complete the entire examination is required to be extended by the Commission was out rightly rejected by the Hon‟ble Division Bench as would be evident from the orders passed by the Hon‟ble Division Bench while considering the application for 19 extension of time and hence it is no more open for the Commission at this stage to hold a separate written examination for candidates who allegedly were left out mistakenly and to consider their candidature along with the writ petitioners for personality test. It is further submitted that in the event the Commission is allowed to give effect to the second written examination confined to 73,978 candidates who are purportedly found to be eligible subsequent to the written examination held on 29th May, 2011 then for the self-same post, there will be two separate examinations on two different sets of question papers which would be arbitrary, inequitable and discriminatory. The Commission is required to follow a uniform process in selecting candidates.
33. Mr. Majumder has drawn our attention to Paragraphs 118 and 119 of the impugned judgment to argue that the learned Single Judge while deciding the several writ petitions have "meticulously" gone through the question papers of two different written examinations as produced by the Commission and had arrived at a finding that the two sets of question papers are standard question papers although the questions may be different. It is submitted that after a period of 14 years, wiser persons are allowed to take same standard question papers. Therefore, level playing ground can never be made by the Commission.
34. It is submitted that this review is not permissible once the recruitment process is complete and it would impeach the level playing field which should be available to all the candidates at the time when they had participated in the examination.
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35. Mr. Majumder has submitted that the learned Single Judge has in fact accepted the contention of the appellants that the prayer for holding written test for 73,978 candidates had been negated by the Hon‟ble Division Bench as would be evident from the observation of the learned Single Judge in paragraphs 90, 93 and 94 of the said impugned judgment, the said paragraphs are stated below:
―90. However, on perusal of the pleadings of CAN 20 of 2024 it appears to this Court that in such interlocutory application the Commission expressly stated that it intends to conduct a fresh written examination in respect of total 1,01,064 candidates including 74,618 numbers of eligible candidates who have been left out. It appears to this Court that on 13.06.2024 the Hon'ble Division Bench while disposing CAN 20 of 2024 and while negating the contention of the Commission expressly held that it was unable to comprehend the stand of the Commission for holding any further written test.
93. It further appears to this Court that from the order dated 13.06.2024 that the core issue before the Hon'ble Division Bench on 13.06.2024 was for extension of time in order to enable the Commission to hold further written examination of total 1,01,064 candidates including 73,978 numbers of eligible candidates who have been left out, which was however negated.
94. In considered view of this Court, the view expressed by the Hon'ble Division Bench it its order dated 12.09.2023 and 13.06.2024 is not an obiter since the same is very much related and restricted to the core issue of the said interlocutory application being CAN 20 of 2024.‖
36. It is submitted that the learned Single Judge has even held that if the finding of the Hon‟ble Division Bench in the order dated 12.09.2023 21 and 13.06.2024 are removed, then the conclusion in the order dated 04.02.2020 shall remain the same.
37. In this regard Mr. Majumder has referred to paragraph 100 of the impugned judgment which reads as follows:
―100. Keeping in mind the propositions of Law as enunciated in the aforementioned two reported decisions, If I look to the orders as passed in the case of Soumen Malakar (supra) and in the intra Court of appeal being MAT 907 of 2018, it appears to this Court that in the event the remarks and/or the findings and/or the observations as made by the Hon'ble Division Bench against the commission in its orders dated 12.09.2023 and 13.06.2024 are inversed that is to say are removed from the said two orders, the conclusion of the judgement and order dated 04.02.2020 as passed in MAT 907 of 2018 would remain same that is; the direction upon the Commission to publish the result of the written examination dated 29.05.2011 within the stipulated period or within the extended period.‖
38. It is submitted that the learned Single Judge has committed serious error of law in mixing up ratio decidendi or binding precedent and res-judicata.
39. Mr. Majumder submits that there is a fundamental difference between res-judicata and precedent which has been explained by the Apex Court in M/S Makhija Construction & Enggr. (P) Ltd. vs Indore Development Authority & Ors.2, paragraphs 16 & 19 reads as follows:
―16. However, the appellant is entitled to succeed on the ground that the order of the Division Bench disposing of Crescent's appeal operated as res judicata to bind not only Crescent but also Jagriti and the appellant. It makes no difference that Jagriti was a co- respondent with the appellant. The principle of res judicata has 2 (2005) 6 SCC 304 22 been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between co-
defendants (or co-respondents as the case may be). This statement of the law has been approved as far back as in 1939 in Munni Bibi vs. Tirlokinath [(1931) 58 IA 158: AIR 1931 PC 114], IA at p. 165, where it has been said that to apply the rule of res judicata as between co-defendants three conditions are requisite: (AIR p.117) ―(1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided.‖ This view has been consistently followed by this Court. (See Iftikhar Ahmed v. Syed Meharban Ali [(1974) 2 SCC 151] where the principle was extended to bind co-plaintiffs; Mahboob Sahab v. Syed Ismail [(1995) 3 SCC 693: AIR 1995 SC 1205].)
19. The counsel for Jagriti has referred us to several decisions viz. Gopal Upadhyaya v. Union of India [1986 Supp SCC 501: (1987) 2 ATC 495], Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213], Deena v. Union of India [(1983) 4 SCC 645: 1983 SCC (Cri) 879] and Krishena Kumar v. Union of India [(1990) 4 SCC 207: 1991 SCC (L&S) 112: (1990) 14 ATC 846]. None of the decisions are apposite. They refer to the principle of precedent which is distinct from the principle of res judicata. A precedent operates to bind in similar situations in a distinct case. Res judicata operates to bind parties to proceedings for no other reason, but that there should be an end to litigation.‖ (emphasis supplied)
40. It is submitted that having regard to the clear findings of the Hon‟ble Division Bench in the earlier proceedings, the findings of the Hon‟ble Division Bench is required to operate as res-judicata as it binds the 23 Commission to the stand the Commission had taken in the previous proceedings and unless this rule of res-judicata is applied in the instant case it would not only cause serious prejudice to the appellants but also encourage the Commission to prevaricate its stand without being reprimanded or dealt with severely.
41. Mr. Majumder has further argued that the order of the Hon‟ble Division Bench on 4th February, 2020 has clearly recorded that the Commission has forgone all the challenges initially made in the appeal and the Commission only wanted to carry forward from the stage of written test already conducted.
42. Mr. Majumder has referred to the order dated 12th September, 2023 passed by Hon‟ble Division Bench in the earlier proceedings and has submitted that in the said order the Hon‟ble Division Bench has clearly recorded the factual detection of alleged irregularities by the Commission, however, such detection of the alleged irregularities was also earlier brought to the notice of the Hon‟ble Division Bench in the supplementary affidavit dated 28.01.2020 filed by the Commission and on consideration of the aforesaid materials the Hon‟ble Division Bench had disposed of the appeal on 4th February, 2020. The order dated 13.06.2024 of the Hon‟ble Division Bench had been accepted by the Commission even after CAN 20 of 2024 was filed.
43. Mr. Majumder has referred to Rule 16 of the Recruitment Rules, 2010 and has submitted that the said Rule provides for holding of screening test before written test. Evaluation and personality test with numbering and counselling to be conducted under Schedule II after such screening test and 24 the total marks allotted for such test is 25 out of which 15 marks are allotted for written test and 10 marks are allotted for personality test.
44. Mr. Majumder has referred to the pace with which the written test was held, results published and even appointment letters issued during the pendency of the appeal. This undue haste according to the Mr. Majumder is a clear case of bias and malice as it reflects a clear intention on the part of the authorities concerned to exclude the appellants who had participated in the written test in 2011.
45. In this regard Mr. Majumder has relied upon the decision of the Hon‟ble Supreme Court in Kumaon Mandal Vikas Nigam Ltd vs Girja Shankar Pant & Ors.3 [Para 9-11,18-20]
46. Mr. Majumder has submitted that in view of the conduct of the Commission and having regard to the fact that the entire process of initiation of the written test for 73,978 candidates till final selection and appointment are in complete violation of the earlier orders of the Hon‟ble Division Bench and hence all such appointments are void and in view of such malafide conduct of the Commission the parties who had participated in the written examination in 2011 should be restored to their original position as if orders passed by the learned Single Judge and the Hon‟ble Division Bench in the earlier proceedings have not been violated. Reliance is placed upon the decision of the Hon‟ble Supreme Court in Manohar Lal v. Ugrasen4. Paragraphs 26 and 28 of the aforesaid judgment reads as follows: 3
(2001) 1 SCC 182 4 (2010) 11 SCC 557 25 ―26. In All Bengal Excise Licensees' Assn. v. Raghabendra Singh [(2007) 11 SCC 374: AIR 2007 SC 1386] this Court held as under:
(SCC p. 387, para 28) ―28. ... a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. ... the wrong perpetrated by the respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good.‖
28. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund [(2007) 13 SCC 565 : AIR 2008 SC 901] this Court while dealing with the similar issues held that even a court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in the event of coming to the conclusion that a breach of an order of restraint had taken place, may bring back the parties to the same position as if the order of injunction has not been violated.‖
47. Mr. Majumder submits that the issuance of an appointment letter on the same date after they have been selected is in violation of Rule 28 of the Recruitment Rules, 2010 as the process of appointment involves:
a) Issue of recommendation to the school by the Commission.
b) Holding of Managing Committee meeting to accept the recommendation;
c) Issue of appointment letter by Managing Committee to the candidate by Registered Post with AD.
48. In the instant case counselling notice was issued on 17th July, 2025 wherefrom it appears counselling will be held on 18th July, 2025 and 19th July, 2025 in connection with the selection process as disclosed in CAN 1 of 2025 in connection with MAT 1114 of 2025.
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49. Mr. Majumder has concluded his submission by reiterating the prayers made in the writ petition and for a declaration that the entire examination process conducted on 01.09.2024 and subsequent steps including appointment as illegal and such appointments are required to be set aside primarily on the ground of being violative of order of the learned Single Judge merged with the order of the Hon‟ble Division Bench and also on the ground of malice.
50. Mr. Anindya Bose, learned Counsel appearing on behalf of the appellants in MAT 1162 of 2025 has in principle adopted the submission of Mr. Soumya Majumder, the learned Senior Counsel, appearing on behalf of the appellants. Mr. Bose has fairly submitted that the appellants have participated in the personality test but were found unsuccessful.
51. Mr. Firdous Samim, learned Counsel has also adopted the submission made on behalf of the appellants in MAT 1113 of 2025. Submission on behalf of WBMSC:
52. Mr. Pratik Dhar, learned Senior Counsel appearing on behalf of the Commission in justification of the impugned notices has submitted that during the scrutiny, the Commission had come across certain errors and mistakes while evaluating the candidature and in order to rectify such mistakes, a list was prepared of 73,978 candidates and they were only allowed to sit for the written examination on 1st September, 2024 without affecting or touching the written examination of 26,445 candidates. Although fairness would cry for a fresh recruitment process consisting of all eligible candidates but having regard to the fact that the Commission had already conducted the written examination of 26,445 candidates out of 27 which 24,577 candidates were found to be successful in order to protect and preserve their interest, the Commission in all fairness excluded those candidates from the second written test. The steps taken by the Commission was equitable and in the interest of the candidates who were willing but made ineligible due to the mistakes and errors on the part of the Commission. It is submitted that the orders passed in the proceedings starting from the order of the learned Single Judge and ending with the last order of the Hon‟ble Division Bench, there was no prohibition on the Commission to conduct a second written examination of 73,978 candidates.
53. Mr. Dhar has referred to the writ petition filed by Soumen Malakar and has submitted that the real grievance of Sri Malakar was that he was unaware of the fact that whether he was selected in the examination held on 29th May, 2011 in which he had participated. The detection of error subsequently surfaced was not an issue in the writ petition. The order of the learned Single Judge dated 23rd July, 2018 gave a direction upon the Commission and its offices to forthwith intimate to Sri Malakar the result of the evaluation of answer scripts and if he is qualified then to prepare the panel in terms of Rule 18 of the said Recruitment Rules, 2010 and if he is eligible as qualified candidate in terms of such list of candidates then the Commission shall issue invitation letter to him for the personality test in terms of the Rule 19 of the said Recruitment Rules, 2010.
54. In an appeal by the Commission the Hon‟ble Division Bench on 4th February, 2020 after recording the submission of the Commission that innumerable candidates have appeared in the examination and the examiners appointed in this regard have not evaluated the answer scripts as 28 yet and because of the voluminous answer scripts to be evaluated by the examiners so appointed, the time limit in the impugned order appears to be insufficient. The Hon‟ble Division Bench in disposing of the matter has clearly recorded:
―We do not delve to go deep into the legality and infirmity of the impugned order.
The impugned order is modified to the extent that the appellant is directed to complete the exercise strictly in terms of the directions passed in the impugned order within six months from date.‖
55. Subsequent thereto the Commission filed an application being CAN 20 of 2024 for further extension of time by six months. In CAN 20 of 2024 on which much reliance has been placed by Mr. Soumya Majumder, Sr. Advocate it is submitted that the Commission wanted to conduct fresh written examination of a total of 1,01,064 candidates i.e. 74,618 eligible candidates which were left out along with 26,445 candidates who already appeared in the written examination.
56. The Hon‟ble Division Bench on 13.06.2024 in extending the order has observed:
―we extend the time for a period of three months from the date to complete the exercise strictly in terms of the order of the single bench.‖
57. It is submitted paragraph 3 of CAN 20 of 2024 have to be read in the context of seeking extension and holding of a fresh written examination which means a complete discarding of the earlier written examination which was held on 29.05.2011.
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58. Mr. Dhar submits that the effect of the order of the Hon‟ble Division Bench dated 13.06.2024 is that of granting of further period of three months to implement the order of the learned Single Judge and all the observations are with regard to the prayer for further extension of time to complete the said process by 13.09.2024. In compliance with the order of the Hon‟ble Division Bench the Commission published the result within three months i.e., 13.09.2024. The result was declared on 12.09.2024.
59. It is submitted that the error in preliminary screening was that the answer key of session 2 was used for all three sessions i.e. Session I, Session II and Session III. This has prompted the Commission to hold a fresh written test and such exercise is not in violation of any order either of the learned Single Judge or of the Hon‟ble Division Bench.
60. Mr. Dhar has submitted that the Commission has a right to correct any irregularity at any stage of the proceeding as it would result in proper evaluation of the candidates and larger participation.
61. In this regard Mr. Dhar has relied upon the decision of Hon‟ble Supreme Court in Vikas Pratap Singh & Ors. v. State of Chhattisgarh & Ors.5, (paragraph 18). The said paragraph reads as follows:
―18. In respect of the respondent Board's propriety in taking the decision of re-evaluation of answer scripts, we are of the considered view that the respondent Board is an independent body entrusted with the duty of proper conduct of competitive examinations to reach accurate results in fair and proper manner with the help of experts and is empowered to decide upon re-evaluation of answer sheets in the absence of any specific provision in that regard, if any irregularity at any stage of evaluation process is found. (See J&K 5 (2013) 14 SCC 494 30 State Board of Education v. Feyaz Ahmed Malik [(2000) 3 SCC 59] and Sahiti v. Dr N.T.R. University of Health Sciences [(2009) 1 SCC 599]. It is settled law that if the irregularities in evaluation could be noticed and corrected specifically and undeserving select candidates be identified and in their place deserving candidates be included in select list, then no illegality would be said to have crept in the process of re-evaluation. The respondent Board thus identified the irregularities which had crept in the evaluation procedure and corrected the same by employing the method of re-evaluation in respect of the eight questions, answers to which were incorrect and by deletion of the eight incorrect questions and allotment of their marks on pro rata basis. The said decision cannot be characterised as arbitrary. Undue prejudice indeed would have been caused had there been re-evaluation of subjective answers which is not the case herein." (emphasis supplied)
62. It is submitted that the status of the appellants is required to be considered while assessing their alleged grievances. The appellants have merely participated in the written examination. Mere participation in the examination does not create any right. In this regard, Mr. Dhar has referred to the decision in Dinesh Kumar Kashyap & Ors. Vs. South East Central Railway & Ors.6, to argue that no legal right has accrued in favour of the appellants by reason of increasing the number of candidates. In Dinesh Kumar Kashyap & Ors. (supra) in paragraph 25, it was held:
―25. In this factual basis, firstly, it needs to be examined as to what is the status of the appellants who were called for document verification over and above the number of posts advertised. The circular dated 2-7-2008 is to the effect that 20 per cent candidates are to be called to avoid the shortfall in the panel and that merely calling a candidate for document verification does not, in any way, 6 (2019) 12 SCC 798 31 entitle him/her to an appointment in the Railways. It is also contemplated that replacement panel shall include only such number of reserved/ unreserved candidates as have not turned up as per original panel. Therefore, the 20 per cent extra candidates were called to substitute the candidates who do not report within the joining time granted to the selected candidates. Such candidates at best can be said to be the candidates in the waiting list of the candidates to be called for appointment if the selected candidates do not join for one or the other reason.‖
63. It has been argued that in finding out the ratio of the decisions it has to be seen that whether the finding is in answer to an issue required to be decided in the matter. A decision on a point which has not been considered is not the ratio and in this regard, reliance is placed on the decision of the Hon‟ble Supreme Court in Southern Petrochemical Industries Co. Ltd. -vs- Electricity Inspector & ETIO & Ors.7, paragraph 155 which reads as follows: -
―155. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. A decision is not an authority on a point which has not been considered.‖ (emphasis supplied)
64. In continuation of the aforesaid argument Mr. Dhar has relied upon a decision of the Hon‟ble Supreme Court in Arun Kumar Aggarwal v.
State of Madhya Pradesh & Ors.8 to contend that opinion on any principles of law which are not pertinent, relevant or essential to determination of issues cannot be considered to be a binding precedent or 7 (2007) 5 SCC 447 8 (2014) 13 SCC 707 32 ratio decidendi in a subsequent matter. Paragraphs 28 and 34 of the aforementioned judgment relied upon specifically are produced below:
"28. Words and Phrases, Permanent Edn., Vol. 29 defines the expression ―obiter dicta‖ or ―dicta‖ thus:
―Dicta are opinions of a Judge which do not embody the resolution or determination of the court, and made without argument or full consideration of the point, are not the professed deliberate determinations of the Judge himself; obiter dicta are opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects; it is mere observation by a Judge on a legal question suggested by the case before him, but not arising in such a manner as to require decision by him; ‗obiter dictum' is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in the particular issue, not binding as a precedent, but entitled to receive the respect due to the opinion of the Judge who utters them; discussion in an opinion of principles of law which are not pertinent, relevant, or essential to determination of issues before court is ‗obiter dictum'.‖
34. In view of the above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.‖ (emphasis supplied) 33
65. Mr. Dhar submits that a court while passing a judgment cannot take away the right of a successful party indirectly as held in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & Anr.9, (paragraph
22). The said paragraph is reproduced below:
―22. The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out from the backdrop of the fact of each case. The court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.‖ (emphasis supplied)
66. This submission is made to justify the holding of a fresh written test and selection of candidates based on the results of second written test.
67. Mr. Dhar submits that the learned Single Judge has rightly applied the doctrine of inverse method in order to find out the ratio decidendi of the earlier decisions. The application of inverse method has been applied by the Hon‟ble Supreme Court in State of Gujarat & Ors. Vs. Utility Users' Welfare Association & Ors.10. Reliance is placed upon paragraph 114 of the aforesaid judgment which reads as follows:
―114. In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for 9 (2008) 11 SCC 753 10 (2018) 6 SCC 21 34 the decision of the case. "In order that an opinion may have the weight of a precedent", according to John Chipman Grey [Another distinguished jurist who served as a Professor of Law at Harvard Law School.], "it must be an opinion, the formation of which, is necessary for the decision of a particular case.‖ (emphasis supplied)
68. Mr. Dhar has emphasized that the Commission being a statutory body has the power of correction and removal of all irregularities in the evaluation process by the independent selector at any stage of the proceeding as mandatory under Articles 14 and 16 of the Constitution of India.
69. Mr. Dhar has submitted that the order of the learned Single Judge is well-reasoned and all points have been discussed and well-
articulated and does not call for any interference. Neither the Single Bench nor the Hon‟ble Division Bench has expressly or by necessary implication prevented the Commission from conducting the second written examination on discovery of errors and mistakes. The order passed by the Hon‟ble Division Bench while extending the time has to be read in the context of the prayer made by the Commission, that is, the extension of time to comply with the order passed initially by the learned Single Judge thereafter by the Hon‟ble Division Bench.
70. Mr. Dhar has submitted that the candidates are to compete for Group-D posts and there has been no significant changes in the two sets of question papers that were produced before the learned Single Judge and it cannot be equated with the selection process of candidates competing in specialized subjects and/or specialized posts. Mr. Dhar has relied upon the decision of the Hon‟ble Supreme Court in Vikas Pratap Singh & Ors. 35 (supra) to argue that no illegality can be said to have crept in if irregularities in evaluation are corrected by re-evaluation and underserved selected candidates are identified and replaced with deserving candidates. The present appellants cannot claim any prejudice caused to them by reason of re-evaluation since it was a mistake on the part of the Commission in preparing the list of candidates who would be eligible for written examination.
Submission on behalf of the Interveners:
71. Mr. Anindya Kumar Mitra, learned Sr. Counsel appearing on behalf of the interveners in WPA No.845 of 2025 has submitted that the preliminary examination held on 28th November, 2010 in three sessions had three different sets of question papers. It is due to the mistake of the Commission that written examination of the present writ petitioners were not held although they had participated in the earlier examination and it is not the contention of the Commission that they were not eligible to participate in the written examination. In view of the fact that the preliminary screening test had three different sets of question papers and once the present petitioners are found to be eligible in the preliminary screening fresh written examination of the present writ petitioners cannot be denied and has rightly been allowed by the learned Single Judge.
72. It is submitted that in the earlier proceedings the issue was with regard to extension of time to comply with the order of the learned Single Judge dated 23rd July, 2018 and the order of the Division Bench dated 4th February, 2020. The order of the Hon‟ble Division Bench dated 4th February, 2020 or the subsequent order of the Hon‟ble Division Bench whereby the 36 time to complete exercise is strictly in terms of the directions passed in the order dated 23rd July, 2018 was extended from time to time and last of which was extended on 13th June, 2024 cannot be construed to confine the evaluation of the written test of the candidates held on 29th May, 2011.
73. It is submitted that although in extending the said period the Hon‟ble Division Bench may have recorded some facts which are ex facie incorrect. Nothing much would turn on such recordings as the Hon‟ble Division Bench was only considering whether they should extend the time to complete the entire exercise meaning thereby that preparation, publication and appointment of the successful candidates within a stipulated time.
74. Mr. Mitra has submitted that the writ petitioners were found to be eligible by the Commission during carrying out the aforesaid exercise and no adverse orders could have been passed against the writ petitioners who were not made parties to the litigation. In Soumen Malakar (supra) it was the writ petition by a sole candidate and while implementing the directions of the learned Single Judge the parties likely to be affected by any decision with regard to the preparation, publication and appointment of successful candidates affected the rights of parties who were not heard would be against the principle of natural justice and contrary to the law laid down by the Hon‟ble Supreme Court in several decisions including the decision of the Hon‟ble Supreme Court in Ranjan Kumar & Ors. v. State of Bihar & Ors.,11.
75. Mr. Mitra submits that when Soumen Malakar filed a writ petition the Hon‟ble Supreme Court was already in seisin of the matter 11 2014 (16) SCC 187 37 which involved the legality and validity of the West Bengal Madrasah Service Commission Act, 2008. The said Act in its entirety was declared as ultra vires by the Hon‟ble Division Bench on 9th December, 2015. The Hon‟ble Supreme Court on 14th March, 2016 admitted the SLP and the operation of the said order was stayed and by a subsequent order dated 17th November, 2017 the Hon‟ble Supreme Court permitted the selection process to continue but no appointment should be given without the order of the Hon‟ble Supreme Court. This was followed by a further order dated 17th May, 2018. It was at that stage that Soumen Malakar filed a writ petition on 24th January, 2018 for completion of the recruitment process and for his appointment.
76. Mr. Mitra submits that the said writ petition was disposed of on the basis of a report filed by the Commission by directing the Commission to complete the entire process within 14 days. This order could not have been passed in the teeth of the order of the Hon‟ble Supreme Court dated 17 th November, 2017. Moreover, the learned Single Judge was not made aware of the fact that the SLP is pending in which several orders have been passed. On the basis of the direction of the learned Single Judge the entire process could not have been completed in view of the pendency of the Special Leave Petition. The Commission in the meantime filed intra-Court appeal and a supplementary affidavit was filed by the Commission during the hearing of the said appeal.
77. Mr. Mitra submits that the order dated 23rd July, 2018 and the subsequent orders dated 4th February, 2020, 12th September, 2023 and 13th June, 2024 passed in MAT No.907 of 2018 by a Co-ordinate Bench does not 38 categorically prevent the Commission to overlook the mistake as noticed while completing the exercise strictly in accordance with the directions passed by the learned Single Judge and the Hon‟ble Division Bench.
78. It is further submitted by Mr. Mitra that if the aforementioned four orders are construed in an appropriate manner it would reveal that in the earlier round of litigation no direction was passed either by the Hon‟ble Single Bench or by the Hon‟ble Division Bench for publication of the entire result. It is further submitted by Mr. Mitra that the order dated 23.07.2018 as passed by the learned Single Bench is a conditional/contingent order inasmuch as it relates to publication of the result of one Soumen Malakar being the writ petitioner in the earlier round of litigation.
79. Mr. Mitra also submits that in order to communicate the result of evaluation of answer scripts to the writ petitioner Sri Malakar, it would have been necessary to examine all answer scripts, but no obligation was cast upon the West Bengal Madrasah Service Commission by the order of the Hon‟ble Single Bench to make general publication by public notice. The obligation to evaluate the answer scripts is cast upon the Commission under Rule 17 (without fixing any time limit) and thereafter, the obligation to prepare the list of candidates qualified for personality test is cast upon the Commission under Rule 18 of the said Recruitment Rules, 2010 and no permission of the Court is necessary.
80. It is submitted upon disposal of the appeal on February 4, 2020, the Appellate Court became functus officio as recorded by the Hon‟ble Division Bench in the order dated 12.9.2023. The applications for addition of parties made by the other candidates before the appellate Division Bench 39 were all rejected by the order dated 12.9.2023. The Hon‟ble Division Bench had only the power to extend or not to extend the time as fixed by the Hon‟ble Division Bench by order dated 4.2.2020, as deemed fit and proper.
81. Further, it is submitted by Mr. Mitra that unsuccessful candidates cannot claim any right or benefit of the orders of extension dated 12.9.2023 and 13.06.2024 respectively passed by the Hon‟ble Division Bench. Their contention was that the Hon‟ble Division Bench by order dated February 4, 2020 and by the subsequent orders of extension of time dated 12.9.2023 and 13.06.2024 had prohibited holding of any fresh written test for the remaining 73,978 candidates subsequently found eligible for written test by the Commission.
82. Mr. Mitra submits it is not alleged by any of those unsuccessful candidates in their respective writ petitions that the mistake as admitted to have been committed by the Commission in the matter of examination of the answer scripts of preliminary screening test was malafide or that such mistake did not actually occur. At the hearing of the appeal, the appellants relied mainly on the order dated 13.06.2024 passed by the Hon‟ble Division Bench extending the time fixed by the earlier order of 12.09.2023 for a period of three months, as an order prohibiting the Commission from holding of the written test for 73,978 candidates who were subsequently found eligible upon evaluation of preliminary screening test. Reliance is also placed on the decision of the Hon‟ble Supreme Court in Hukum Chand Deswal v. Satish Raj Deswal12, paragraph 25 which reads as follows: 12
(2021) 13 SCC 166 40 ―25. Pertinently, the special leave petitions were filed by the respondent against the order dated 28-1-2019 [Sagu Dreamland (P) Ltd. v. Jingal Bell Amusement Park (P) Ltd., 2019 SCC OnLine Del 6720: (2019) 257 DLT 672], which as aforesaid, did not deal with the question regarding the monthly rent payable by the respondent but explicitly left the parties to pursue the same before the executing court. The petitioner-plaintiff having acquiesced of that observation of the High Court, cannot be allowed to contend to the contrary. This Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly [Jhareswar Prasad Paul v. Tarak Nath Ganguly, (2002) 5 SCC 352: 2002 SCC (L&S) 703], in para 11, opined thus: (Jhareswar Prasad Paul case [Jhareswar Prasad Paul v. Tarak Nath Ganguly, (2002) 5 SCC 352: 2002 SCC (L&S) 703], SCC p. 360) ―11. ... The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction ‗that 41 it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute' in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.‖ (emphasis supplied)
83. It is submitted that none of the orders dated 23rd July, 2018 passed by the learned Single Bench, order dated 4th February, 2020, order dated 12th September, 2023 and the order dated 13th June, 2024 passed by the Hon‟ble Division Bench contain any specific direction that the time is being extended to comply with the order of the Single Bench subject to the condition that no further written test of the candidates found eligible subsequently.
84. Our attention is drawn to paragraphs 9, 11,12,14 and 17 of the order dated 13th June, 2024 to emphasize that those paragraphs are not orders but observations which could not be treated as precedent. The said paragraphs do not lay down any law. There is no whisper even in those paragraphs of the said judgment that written test for candidates found successful upon re-evaluation of answer scripts of preliminary screening test, will not be held.
85. The unsuccessful candidates who filed the writ petitions challenging selection of 295 successful candidates have no right or locus standi to even contend that the orders passed in the writ petition of Soumen 42 Malakar by the Hon‟ble Single Bench and the Hon‟ble Division Bench, have been breached by the Commission by holding subsequent written test. If anyone is really aggrieved by holding subsequent written test is only Mr. Malakar as the order was passed in personam. Mr. Soumen Malakar could complain about breach of the said order obtained by him personally and he has not made any complaint that the said order dated 23rd July, 2018 as confirmed by the Hon'ble Division Bench by the order dated 4th February, 2020 had been breached by the Commission by holding the written test of 73,978 candidates on 1st September, 2024.
86. It is further submitted that paragraph 18 of the order dated 13th June, 2024 is clear and unambiguous, as the Hon‟ble Division Bench has taken a pragmatic view of the matter, extending the time for a period of three months from the date to complete the exercise strictly in terms of the order of Single Bench as affirmed by the Hon‟ble Division Bench.
87. It is submitted that there are further reasons for not to imply any prohibitory order in the judgment and orders dated 23rd July, 2018, 4th February, 2020, 12th September, 2023 and 13th June, 2024. On 12th September, 2023, the Hon‟ble Division Bench has clearly stated that it has become functus officio after disposal of the appeal from the order of learned Single Judge by order dated 23rd July, 2018.
88. Hence, it cannot be contended that on 12th September, 2023 or 13th June, 2024 there has been any addition or modification of the order dated 23rd July, 2018 passed by the learned Single Judge. It is difficult to comprehend that the Hon‟ble Division Bench would prevent the Commission 43 not to hold the written test for all the 73,978 candidates who have been found eligible upon the screening test.
89. Mr. Mitra has raised Rule 16(1) of the Recruitment Rules, 2010 in justification of his argument that the Commission is obliged to hold written test of all the eligible candidates and accordingly those 73,978 candidates being found eligible are entitled to participate in the written examination and they cannot be denied of such statutory right inasmuch as the Commission was under statutory obligation to conduct such examination under Rule 16(1) of the Recruitment Rules, 2010.
90. It is submitted that the 73,978 candidates who have been subsequently found eligible for the written test were party to the proceedings before the Hon'ble Single Bench or Hon‟ble Division Bench. Those 73,978 candidates upon re-valuation of OMR sheets found to be eligible by the Commission and were entitled to statutory right. The Commission was under statutory obligation under Rule 16(1) to hold the written test. Rule 16(1) provides that - "Commission shall hold Written Test of all the eligible candidates."
91. It is difficult to believe that the Hon'ble Division Bench would ask the Commission to act in violation of Rule 16(1) by not holding written test for those 73,978 candidates found eligible for attending the written test.
92. Furthermore, such prohibitory direction, if implied in the order dated 13th June, 2024, would mean that the Hon'ble Division Bench had intended to pass an adverse order against the candidates who are not parties to the said proceedings and to deprive their right to appear in the 44 written test as per Rule 16(1) of the Recruitment Rules, 2010. Such order would be in violation of the principle of natural justice and be null and void.
93. Mr. Mitra has also argued that the writ petitions are not maintainable in absence of leave taken under Order 1 Rule 8 of the Code of Civil Procedure as any decision impleading the selected candidates would be in violation of the principle of natural justice as any adverse order, if passed would cause serious prejudice to them and in this regard the learned Senior Counsel relied on a decision of the Hon‟ble Supreme Court in Ranjan Kumar v. State of Bihar,13 (paragraphs 4 to 13). The said paragraphs are set out below:-
―4. On a perusal of the orders impugned, we find that only 40 persons were made respondents before the High Court and hardly a few appointees filed applications for intervention. It is well settled in law that no adverse order can be passed against persons who were not made parties to the litigation. In this context, we may refer with profit to the authority in Prabodh Verma v. State of U.P. [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] , wherein a three-Judge Bench was dealing with the constitutional validity of two Uttar Pradesh Ordinances which had been struck down by the Division Bench of the Allahabad High Court on the ground that the provisions therein were violative of Articles 14 and 16(1) of the Constitution of India. In that context, a question arose whether the termination of the services of the appellants and the petitioners therein as secondary school teachers and intermediate college lecturers following upon the High Court judgment was valid without making the said appointees as parties. The learned Judges observed that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects; the core defect was that of 13 (2014) 16 SCC 187 45 non-joinder of necessary parties, for respondents to the Sangh's petition were the State of Uttar Pradesh and its officers concerned and those who were vitally concerned, namely, the reserve pool teachers, were not made parties -- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents.
Thereafter the Court ruled thus: (Prabodh Verma case [Prabodh Verma v. State of U.P., (1984) 4 SCC 251: 1984 SCC (L&S) 704], SCC pp. 273-74, para 28) ―28. ... The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.‖
5. In the case at hand neither was any rule nor any regulation challenged. In fact, we have been apprised that at the time of selection and appointment there was no rule or regulation. A procedure used to be adopted by the administrative instructions. That apart, it was not a large body of appointees but only 182 appointees. Quite apart from that the persons who were impleaded, were not treated to be in the representative capacity. In this regard, it is profitable to refer to some authorities.
46
6. In Indu Shekhar Singh v. State of U.P. [Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129: 2006 SCC (L&S) 1916] it has been held thus: (SCC p. 151, para 56) ―56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.‖
7. In Rashmi Mishra v. M.P. Public Service Commission [Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 :
(2007) 2 SCC (L&S) 345] , after referring to Prabodh Verma [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] and Indu Shekhar Singh [Indu Shekhar Singh v. State of U.P., (2006)
8 SCC 129 : 2006 SCC (L&S) 1916] , the Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto all the seventeen selected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the appellant to implead them as parties in the proceeding. Ultimately, the Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the appellant therein.
8. In Tridip Kumar Dingal v. State of W.B. [Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768: (2009) 2 SCC (L&S) 119], this Court approved the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and without affording an opportunity of hearing to them, the selection could not be set aside.
9. In Public Service Commission v. Mamta Bisht [Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204: (2011) 1 SCC 47 (L&S) 208] this Court, while dealing with the concept of necessary parties and the effect of non-implementation of such a party in the matter when the selection process is assailed, observed thus: (SCC pp. 207-08, para 9) ―9. ... in Udit Narain Singh Malpaharia v. Board of Revenue [Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786] , wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called ‗Code of Civil Procedure') provides that non- joinder of necessary party be fatal. Undoubtedly, provisions of the Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141 of the Code of Civil Procedure but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat [Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153] , Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706] and Sarguja Transport Service v. STAT [Sarguja Transport Service v. STAT, (1987) 1 SCC 5 : 1987 SCC (Cri) 19] .)‖
10. In J.S. Yadav v. State of U.P. [J.S. Yadav v. State of U.P., (2011) 6 SCC 570: (2011) 2 SCC (L&S) 140], it has been held that: (SCC p. 583, para 31) ―31. No order can be passed behind the back of a person adversely affecting him and such an order, if passed, is liable to be ignored being not binding on such a party as the same 48 has been passed in violation of the principles of natural justice.‖ It was further held that: (SCC p. 583, para 31) ―31. ... The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity.‖
11. In Vijay Kumar Kaul v. Union of India [Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610: (2012) 2 SCC (L&S) 491] it has been ruled thus: (SCC p. 619, para 36) ―36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.‖
12. Recently in State of Rajasthan v. Ucchab Lal Chhanwal [State of Rajasthan v. Ucchab Lal Chhanwal, (2014) 1 SCC 144: (2014) 1 SCC (L&S) 34], it has been opined that: (SCC p. 149, para 14) ―14. ... Despite the indefatigable effort, we are not persuaded to accept the aforesaid proponent, for once the respondents are promoted, the juniors who have been promoted earlier would become juniors in the promotional cadre, and they being not arrayed as parties in the lis, an adverse order cannot be passed against them as that would go against the basic tenet of the principles of natural justice.‖ 49
13. In view of the aforesaid enunciation of law, we are disposed to think that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners.‖ (emphasis supplied)
94. It is trite law that if all the appointees were not impleaded in the writ petition it is defective and hence no relief could be granted to the writ petitioners. Moreover, the court cannot pass any order against non- parties affecting their interest since 295 candidates have already been appointed and it is known to the present appellants without impleading them.
95. It is submitted that in this appeal all 295 successful candidates are not parties. Only 102 successful candidates, on their individual capacity and not in representative capacity have added themselves as respondents.
96. Mr. Mitra has further submitted that almost all the writ petitioners have stood by and allowed 73,978 candidates to appear in the second written test held by the Commission and thereby have acquiesced in the said proceedings and upon being unsuccessful cannot now challenge the appointments of 295 candidates made by the Commission. There was no contemporaneous challenge to the public notification issued by the Commission on 5th August, 2024 and 9th August, 2024.
97. Mr. Mitra has submitted that an eligible candidate cannot suffer due to the bona fide mistake of the Commission and such mistake does not confer any right to anybody. The bona fide mistake on the part of the Commission should not deprive the candidates who had by mistake been left out and were not invited to appear in the written test and in this regard 50 reliance is placed on Chandigarh Administration. & Ors. V. Naurang Singh & Ors.,14 paragraphs 6 and 7 and Indian Oil Corporation Ltd. & Ors. v. Jharna Sarkar & Ors.,15 paragraphs 22 and 23. In Chandigarh Administration (supra) in paragraphs 6 and 7 it was held:
―6. We are, however, of the opinion that a mistake committed by the Administration cannot furnish a valid or legitimate ground for the court or the tribunal to direct the Administration to go on repeating that mistake. The proceedings placed before us clearly show that the pay revision of 19-9-1975 was an unscheduled one, effected merely on the basis of a letter written by the Principal of the College. The Administration no doubt could have rectified that mistake. That would have been the most appropriate course but their failure to do so cannot entitle the respondents to say that that mistake should form a basis for giving the higher pay scale to them also. The proceedings of the Administration dated 19-8-1982 clearly show that the said higher pay scale was treated as personal to the then existing incumbents. As stated above that was really the pay scale admissible to the post of Assistants which was a promotion post to storekeepers. Both these posts cannot be given the same pay scale.
7. We are, therefore, of the opinion that the claim of the respondents could not have been allowed by the Tribunal. The doctrine of ―equal pay for equal work‖ has no application in such a situation. An evident mistake cannot constitute a valid basis for compelling the Administration to keep on repeating that mistake. Personal pay is granted to employees on various grounds. In certain services where matriculation is the minimum educational qualification for a particular post, and a graduate joins that post, additional increments are given to him to start with. Increments are also given to male employees for undergoing family planning operation. Such 14 (1997) 4SCC 177 15 (2004) 2 CHN 606 51 personal pays cannot furnish a ground for invoking the doctrine of ―equal pay for equal work‖. Because it was a mistake it was treated as personal pay for existing incumbents. And for future incumbents, the appropriate pay scale was given.‖
98. In Indian Oil Corporation Ltd. (supra) in paragraphs 22 and 23 it was held:
―22.The matter may be viewed from another angle. If a person enjoys a benefit de hors his right conferred by statute or by agreement he cannot claim continuation of the same and the other party is entitled to rectify such mistake and/or wrong. In the instant case since the oil company on an enquiry found that the supplies at Barisha was being made independently of the quota allotted to the respondent No. 1 in respect of Behala de hors the agreement entered into by and between the parties they were entitled to rectify their own mistake and/or wrong to prevent further wrong. If we allow the respondent No. 1 to enjoy independent quota for Barisha that would amount to deprival of the other agents who were getting less than 250 KL. In other words by rectification of such mistake the oil company did not benefit themselves, they have redistributed the said allotment amongst other agents to maintain the upper limit of 250 KL. Incidentally the respondent No. 1 was also benefited by that when their quota in respect of other outlet got increased by virtue of such cancellation.
23. We do not find any mala fide on the part of the oil company while rectifying such mistake. We fail to understand how this mistake could crop up and how the respondent No. 1 enjoyed additional quota de hors the agreement since 2000. We express our strong displeasure in the working of the oil company in this regard.‖ (emphasis supplied) 52
99. The rule of game in this matter has been to set separate question papers. Three separate question papers were set for preliminary screening test for three different zones, as stated by the Commission. Two separate question papers were set for written test held in 2011, as has been stated by the Commission. The Commission produced different sets of question papers before the Hon'ble Single Bench and also before the Hon'ble Division Bench. The Single Bench has recorded the finding that there is no discrimination.
100. Mr. Mitra submits that, therefore, the writ petitioners who have participated in the aforesaid preliminary test and written test cannot now contend that there should not have been any second written test. There has not been any change in the rule of game in this case. There has been no disturbance of level playing grounds as held by the Hon‟ble Single Bench upon scrutiny of the question papers. The Act or Rules governing the Commission does not prohibit holding of more than one test.
101. Mr. Mitra has submitted that the impugned judgments are with reasons and cannot be said to be perverse or against the law. The view taken by the learned Single Judge has not been shown to be unreasonable and perverse. In an appellate jurisdiction the Hon‟ble Division Bench ordinarily should not disturb the order of the learned Single Judge unless it is found to be against the law and totally perverse. Moreover, there has been no allegation of mala fide and/or corruption against the Commission and in absence of such allegation the selection process that have culminated and the appointments already made.53
102. Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate appearing on behalf of writ petitioners in WPA 1436 of 2025 at the very outset submits before this Court that his clients who are the writ petitioners in WPA 1436 of 2025 participated in the written test held on 29.05.2011 and they were found to be successful in the result as published by the Commission on 12.09.2024 and the said writ petitioners are also successful in the personality test. They appeared in the counselling and got appointment letters and joined in the respective Madrasahs under the posts of Group D.
103. In course of his argument, Mr. Bhattacharya, learned Senior Advocate has submitted that some unsuccessful candidates of the written examination dated May 29, 2011, filed Special Leave Petition, being SLP (Civil Diary) No. 19069 of 2024 assailing the order dated September 12, 2023 passed by the Division Bench of the Hon‟ble High Court at Calcutta in MAT No. 907 of 2018 challenging the action taken by the West Bengal Madrasah Service Commission in the matter of holding the second written examination.
104. It is further submitted by Mr. Bhattacharya that neither the Division Bench of this Hon‟ble Court while passing the orders dated September 12, 2023 and June 13, 2024 nor the Hon‟ble Supreme Court while passing the order dated May 13, 2024 had any occasion to consider the justifiability of holding the second written examination by the Commission. The Hon‟ble Division Bench on 12.09.2023 and 13.06.2024 only extended the time to complete the exercise strictly in terms of the order of the Hon‟ble Single Bench as affirmed by the Hon‟ble Division Bench, on 54 the basis of the application for extension of time filed by the Commission.
The Hon‟ble Division Bench while passing the orders dated 12.9.2023 and 13.06.2024 neither expressly nor impliedly prohibited the Commission to hold further written examination.
105. It is further argued by Mr. Bhattacharya that in terms of the Recruitment Rules, 2010 the Commission held and conducted written examination of all eligible candidates. None was deprived. Thus, such action of the Commission cannot be questioned by claiming that the same was not done following the due procedure. The Commission had conducted two written tests fairly and clearly on the basis of the Recruitment Rules, 2010 maintaining the same level playing field and in absence of any specific allegation regarding any mala fide or bias against the Commission, and as such, there cannot be any scope to interfere with the conscious effort made by the Commission.
106. It is also submitted that the Hon‟ble Single Bench elaborately discussed the reasons for conducting the two written examinations conducted by the Commission. Out of 295 posts, 244 candidates who appeared in the written examination held on May 29, 2011, have been appointed for the posts of Group D and the rest 51 appointed candidates are from those who appeared in the written examination held on September 1, 2024. It is further submitted that in view of the fact that everybody had participated in the selection process, and there is no allegation of fraud or mala fide or corruption, further interference is not required regarding the selection process and the appointments already made 55 Findings and Analysis
107. The moot question required to be decided in the instant appeal is whether the WBMSC could have issued the impugned notices dated 05.08.2024 and 09.08.2024 for holding fresh written examination of 73,978 candidates. The principal argument of the appellants is that such exercise was in violation of the orders passed by the Hon‟ble Division Bench on 04.02.2020, 12.09.2023 and 13.06.2024 respectively as the aforesaid orders mandated consideration of only 24,577 candidates found successful out of 26,445 candidates who appeared in the written examination.
108. In the instant case the genesis of the dispute was inaction on the part of the Commission in not publishing the result of the written examination of 1st State Level Selection Test conducted on 29th May, 2011. One Sri Malakar filed a writ petition being WP No. 1722(W) of 2018 praying inter alia for the following reliefs:
"(a) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding the respondents authorities, each one of them, their men, agents, servants, subordinates and/or assigns to forthwith publish the result of the Written Examination of 1st State Level Selection Test (NT) for the Group-D Post-Peon conducted on 27.03.2011 (sic) by the West Bengal Madrasah Service Commission.
(b) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding the respondents authorities, each one of them, their men, agents, servants, subordinates and/or assigns to forthwith communicate to the petitioner as to whether petitioner has been selected in the Written Examination of 1st State Level Selection Test (NT) for the Group-D Post-Peon conducted on 27.03.2011 by the West Bengal Madrasah Services Commission.56
(c) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding the respondents authorities, each one of them, their men, agents, servants, subordinates and/or assigns to forthwith take steps for granting appointment to the petitioner, if it is found that the petitioner has been selected in the Written Examination of 1st State Level Selection Test (NT) for the Group-D Post-Peon conducted on 27.03.2011 by the West Bengal Madrasah Service Commission.
(d) A writ of and/or order and/or direction in the nature of Certiorari do issue directing the respondents to transmit the entire records of the examination held on 27.03.2011 (sic) for appointment in Group-D Post-Peon before the West Bengal Madrasah Service Commission forming the basis of the grievance of the petitioner, certify the same and on being so certified quash the same so that conscionable justice be done.‖ (emphasis supplied)
109. In deciding the said writ petition the learned Single Judge directed that if Sri Malakar is found to be eligible he should be given an appointment. In the process of finding out his eligibility the Commission would be required to take steps in terms of Recruitment Rules, 2010. Undoubtedly, the said order benefits the candidates who participated in the said examination. In order to decide the eligibility of Sri Malakar the various steps as envisaged in the said Recruitment Rules, 2010 are to be completed. It was needed to find out if Sri Malakar had qualified in the written examination and found eligible for personality test.
110. The recruitment process is initiated upon submission of applications in the prescribed form with fees. Thereafter, the applications are processed and screened. After due screening a written test is held for all the eligible candidates. The Commission may also hold screening test before 57 holding written test in case the number of candidates in any category of post is huge and thereafter, the answer scripts of the written examination are evaluated and based on such evaluation the Commission prepares medium, post, subject, category and gender-wise list of candidates who shall qualify for personality test on the basis of marks obtained by the candidate in the written test. After preparation of the list of eligible qualified candidates the Commission will call the candidates for personality test, the candidates would be required to appear before the Personality Test Board. The Commission thereafter on the basis of the marks obtained in the written test, evaluation of the academic as well as professional qualification and teaching experience, if applicable, and marks obtained in the personality test and aptitude test, all added together, and on the basis of the guidelines issued by the Commission prepares strictly in order of merit a panel of candidates viewed fit for recommendation and also a waiting list. Thereafter, the Commission shall publish such panel and waiting list candidates on the website of the Commission and the notice board of the Commission as well as the offices of the District Inspector of schools. A panel and waiting list prepared by the Commission would remain valid for one year from the date of acceptance of the panel of the waiting list. These stages are mentioned in detail in Chapter V-VII of the Recruitment Rules, 2010. For the sake of convenience the relevant Rules are mentioned below:
"Chapter-V Application and Screening
12. Submission of applications-
(1) The duly filled-in application Form in the prescribed format with fees, if any, shall be submitted within such time and in such 58 manner at such place (s) as may be specified by the Commission in the advertisement.
(2) An Approved in-service teacher or Non-teaching staff of a School /Madrasah may apply only after completion of one year of approved service in case of a vacancy of higher scale and of two years of approved service in case of vacancy of the same scal
13. Processing, Screening of applications-
(1) The Secretary of the Commission shall arrange for proper custody of all the applications which may be received by it against different vacancies.
(2) The Commission shall generate a computerized data-base of all the candidates (applicants), prepare a list of eligible candidates as well as list of rejected applications medium, post, category, subject- wise after due screening.
(3) In case of rejection of any application, the cause of rejection should be stated against the application in the data base to be displayed in the Commission's Website so that any applicant may know the reason of rejection of his/ her application.
CHAPTER-VI Arrangement, Holding & Conduct of Written Test
14. Issue of Admit Cards-
The Commission shall, for written test, take necessary action for generation and issuance of admit cards mentioning date, time & venue of written test, by regd/speed post/courier service or by any other mode as deemed fit by the Commission giving at least 20 days gap between the date of issue of admit card and the date of written test to the eligible candidates.
15. Arrangement of Written Test-
(1) The Commission shall arrange for written test under its direct supervision and control.
(2) The Commission shall determine the scheme and syllabus of the written test, prepare question papers and distribute the same to the 59 examination venues through the custodian appointed by the Commission.
(3) The Commission shall-
i) appoint paper-setters, moderators and observers;
ii) approve the lists of examiners and experts;
iii) fix the rates of remuneration for paper-setters, Moderators, experts, observers, Coordinators 'and all other persons concerned with the conduct of examinations.
(4) The Commission shall determine the number of paper(s) for written test, contents of each paper, duration of examination and other matters relating to the State/Region/ Area Level Selection Test as the case may be.
16. Holding & Conduct of Written Test -
(1) The Commission shall hold written test of all the eligible candidates.
(2) The Commission shall decide the procedure and the manner of conducting the State/Region/Ares Level Selection Test, and prepare detailed instructions in this regard in accordance with the provisions of the Act and the rules made thereunder:
(3) The Commission shall-
i) Select the examination centres;
ii) appoint Officer-in-charge for examination centres, custodians of confidential papers, supervisors, venue-incharge, invigilators, observers and
iii) make necessary arrangement for the conduct of examinations and collection of answer-scripts/sheets.
Provided that the Commission may hold Screening Test before holding Written Test, in case the numbér of candidates/. applicants in any category of post is huge, particularly in case of selection of clerks and Group-D staff in the manner as the Commission may deem fit and proper.
CHAPTER-VII Evaluation & Personality Test 60
17. Evaluation of Answer Scripts/Sheets:
The Commission shall get the answer scripts/sheets of the written examination evaluated by the examiners/computer based technique and prepare evaluation sheet medium, post, subject, category and gender wise on the basis of such evaluation.
18. Preparation of list of candidates for Personality Test - After the evaluation of the answer sheets of the written examination, the Commission shall prepare medium, post, subject, category and gender-wise list of the candidates; who shall qualify for personality test on the basis of the marks obtained by him/her in the written test and evaluation of academic and professional qualification (to be calculated on the basis of statement made in regard to academic qualification by a candidate at the time of submission of the application form) taken together and also teaching experience as per Schedules II & III, if applicable;
Provided that the number of qualified candidates for every category (of post) and/or subject (teacher and non-teaching staff) to be called for the personality test in order of merit, shall not exceed 1.5 times of the number of actual vacancy(ies);
Provided further that if more than one candidate scores same marks at the last rank/position of the list of qualified candidates, all such candidates at that position shall be called for the personality test..
19. Intimation letter-
After preparation of the list of eligible qualified candidates, the Commission shall call the candidates for Personality Test through Registered Post or Speed Post or Courier Service or by any other mode as the Commission may deem fit, mentioning the date, time and venue of Personality Test at least 20 (twenty) days ahead of the Personality Test:
Provided that the candidate can also obtain such information from the office or through the Website of the Commission.
20. Holding and Conduct of Personality Test -
61
The Commission shall hold and conduct the personality test of selected eligible candidates forming Personality Test Board(s).‖
111. In the aforesaid context if the order of the learned Single Judge and the Hon‟ble Division Bench in the earlier proceedings are considered it can be seen that Soumen Malakar to claim an appointment would be required to undergo the aforesaid process.
112. The order of the learned Single Judge plainly put is an order in personam benefitting Sri Malakar. Incidentally in the process of finding out the suitability of Sri Malakar rights may have accrued in favour of the successful candidates. If any of such candidate is aggrieved by any subsequent decision of the Commission or any inaction in implementing the said selection or any dispute arising out of such selection it has to be by an independent proceeding unless the Court keeps the original writ petition alive and allows amendment of the writ petition and permits addition of parties by applying principle akin to Order 1 Rule 8 of the Code of Civil Procedure, 1908. In the instant case the writ petition filed by Sri Malakar never acquired the representative capacity. The appeal carried by the Commission was against the order dated 23rd July, 2018 by which the Commission was directed to complete the process and find out whether Sri Malakar would be eligible or not and if eligible to give an appointment. At the time when the writ petition was being considered by the learned Single Judge a Special Leave Petition was pending in which orders were passed clearly mentioning that any appointment during the pendency of the SLP shall abide by the result of the said SLP. Ideally, the writ petition filed by Sri Malakar ought to have waited till the disposal of the Special Leave 62 Petition as Sri Malakar if appointed would be in a precarious position as his right would never crystalize until the validity of the West Bengal Madrasah Service Commission Act, 2008 is decided finally by the Hon‟ble Supreme Court. In the appeal being MAT 907 of 2018 the Hon‟ble Division Bench did not interfere with the order of the learned Single Judge and dismissed the appeal on 4th February, 2020 and by that time the validity of the West Bengal Madrasah Service Commission Act, 2008 was upheld. The dismissal of the appeal only means that the Commission is required to ascertain whether Sri Malakar would be eligible for appointment on completion of the entire selection process. The said order cannot be read beyond it. The Hon‟ble Division Bench by a subsequent order dated 12th September, 2023 has refused to entertain the application for impleadment as by reason of the order dated 4th February, 2020 it has become functus officio.
113. It is trite law that when proceedings stand terminated by final disposal of a writ petition or an appeal as the case maybe it is not open to the Court to reopen the proceedings by means of miscellaneous application in respect of the matter which provides a fresh cause of action. If this principle is not followed there would be confusion or chaos and the finality of the proceedings would cease to have any meaning as has been held in State of U.P. v. Brahm Datt Sharma,16 in paragraph 10 which reads as:
―10. The High Court's order is not sustainable for yet another reason. Respondents' writ petition challenging the order of dismissal had been finally disposed of on 10-8-1984, thereafter nothing remained pending before the High Court. No miscellaneous 16 (1987) 2 SCC 179 63 application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29-1-1986 he could have filed a separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided as separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.‖ (emphasis supplied)
114. It was precisely for this reason that in deciding the application for extension of time to complete the process the Hon‟ble Division Bench did not allow impleadment and decide the issues raised by such applicants.
115. Mr. Soumen Malakar, the writ petitioner did not file any separate writ petition alleging that the subsequent decision of the Commission to hold written test of 73,978 is bad.
116. A judgment physiologically if compared to a human body consists of various essential parts. A judgment is also an assimilation of various essential features, like in a human body the most essential and vital organ being the heart. In the anatomy of the judgment reason is the soul and heart. The ratio needs to be found out on a true and a meaningful 64 reading of the judgment. The ratio is the summation of the statement of legal rules or principles that are the essential basis for reaching a decision and conclusion. It is the reason for the decision that needs to be interpreted in the background of the facts. A slight change in facts may lead to a different conclusion. The judgment is an authority for what it decides. However, in a judgment if it is found that observations made are wholly unconnected with the issues and not relevant for the purpose of deciding the issue it needs to be ignored as it was only a passing comment or observation having no binding effect.
117. In Union of India v. Major Bahadur Singh17 the Apex Court settled the following principles in the matter of interpretation of judgments. Reliance is placed on paragraph 9 of the aforesaid judgment which reads as follows:
―9......Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussions is meant to explain and not to define.....‖ (emphasis supplied) 17 (2006) 1 SCC 368 65
118. In Nair Service Society v. State of Kerala18, it was held by the Apex Court that for construing a judgment, it must be read in its entirety. Paragraph 26 of the afore-mentioned judgment reads as follows:
―26. The observations aforementioned are not to be read in isolation.
For the purpose of construing a judgment, it is well known that the same must be read in its entirety......‖ (emphasis supplied)
119. Any observation in a judgment not deciding the issue cannot be said to be the ratio of the said judgment. Obiter would mean a comment which does not decide the merits of the matter. It is an observation casually made. Obiter dicta is not the ratio of the judgment.
120. Obiter Dicta in Stroud's Judicial Dictionary of Words and Phrases (10th Edn., 2nd Vol., Page 867) has been described as what the words literally signify, namely, statements by the way. If a judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case, and the reasons for the decision (Flower v Ebbw Vale Steel, Iron & Coal Co)19.
121. In G.W. PATON'S Jurisprudence, 4th Edition, p. 210, as cited in Ratanlal Nahata v Nandita Bose,20 "Ratio decidendi, literally, would refer to the 'reason of decision' or to the 'reason for deciding' but the use of the term to refer to the binding part of a case requires some attention to the actual terminology used in arguments about case law authority, for there has been 18 (2007) 4 SCC 1 19 [1934] 2 K.B. 132 at 154 20 AIR 1999 Cal 29 66 much confusion. To begin with, ratio decidendi is almost always used in contra-distinction to obiter dictum. An obiter dictum, of course, is always something said by a Judge. It is frequently easier to show that something said in a judgment is obiter and has no binding authority. Clearly something said by a Judge about the law in his judgment, which is not part of the course of reasoning leading to the decision of some question or issue presented to him for resolution, has no binding authority however persuasive it may be, and it will be described as an obiter dictum."
122. A decision is only an authority for what it actually decides and not for what may logically follow from it. Every judgment must be read as applicable to the particular facts proved, since the generality of expressions, which may be found there, are not intended to be expositions of the whole law but governed or qualified by particular facts of the case in which such expressions are to be found.
123. In Regional Manager v Pawan Kumar Dubey,21 it was held that ratio decidendi is the rule deducible from the application of law to the facts and circumstances of a case which constituents its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.
124. In the instant appeals it is to be considered whether the observations made by the learned Single Judge or the Hon‟ble Division Bench at all have a bearing on the issue under consideration. The writ 21 AIR 1976 SC 1766 67 petitioners contended that issuing fresh notices inviting written test of 73,978 candidates were impermissible in view of the orders passed in the earlier proceedings. We have in the preclude narrated and summarised the facts wherefrom it would clearly reveal that the issue of fresh written test was never an issue before the learned Single Judge nor before the Hon‟ble Division Bench. In fact, before the learned Single Judge Sri Soumen Malakar only wanted to consider his eligibility and appointment. It was only during the hearing of the application for extension of time being CAN 20 of 2024 the Commission had disclosed that since the Commission had found out that due to bona fide mistake eligible candidates have been left out, steps are being taken for holding a fresh written test of only those candidates who have been found eligible after the screening test and due to this reason the entire process could not be completed in time. The validity and propriety of such action by the Commission was not the issue before the learned Single Judge in Soumen Malakar (supra) nor before the Hon‟ble Division Bench. The Hon‟ble Division Bench while disposing of the appeal on 4th February, 2020 merely extended the period of compliance of the order passed in Soumen Malakar (supra) on 23rd July, 2018. It is only to facilitate completion of the entire process the time was extended from time to time on the basis of the explanations offered by the Commission. In fact, the Hon‟ble Division Bench was aware of its limitation as would be evident from the order dated 12th September, 2023 where it was observed that by reason of the order dated 4th February, 2020 the Hon‟ble Division Bench became functus officio. The order subsequent to 4th February, 2020 is only an order of extension and in deciding such applications the Hon‟ble Division Bench has expressed its 68 displeasure in the manner the Commission had proceeded with the matter. The propriety and validity of the notices issued for holding written test of 73,978 candidates were never an issue before the Hon‟ble Division Bench on 12th September, 2023 or in any subsequent proceeding for extension of time. When the final extension was allowed the Hon‟ble Division Bench was only considering that having regard to the conduct of the Commission further extension to comply with the order of the learned Single Judge dated 23rd July, 2018 could be granted. There was no challenge to the said notices in such proceedings. There has been no adjudication or a decision on the power of the Commission to hold written examination of 73,978 candidates subsequently found eligible for written examination. The power and jurisdiction of the Commission to hold such examination and complete the selection process in terms of the Recruitment Rules, 2010 was not raised or decided. Even for a plea of res-judicata to succeed it has to be an issue raised and finally decided. If any order is passed without argument, without reference to the relevant provisions of the Recruitment Rules, 2010 conferring power on the Commission to initiate and complete the process neither can it operate as res judicata or binding precedent. No argument was addressed before the Hon‟ble Division Bench that in the given facts and circumstances the decision of the Commission to hold a written examination of the remaining candidates found eligible subsequently without disturbing the candidates who have already participated in the written examination earlier was mala fide or arbitrary. The Hon‟ble Division Bench was only considering the question of extension of time to complete the selection process. If one has to assume that although the issue of validity of the 69 notices were logically involved in the facts and although the case had a specific outcome, the said issue not being argued or considered in the background of the relevant provisions and power of the Commission to act in exercise of powers conferred under the Recruitment Rules, 2010 any observation made with regard to such steps taken by the Commission for a fresh written test of the eligible candidates left out due to bona fide error noticed later by the Commission during the period when prayer for extension was pending are passing observations and not an authority on the point of power and jurisdiction of the Commission to undertake such exercise to rectify its mistake.
125. In fact, when the writ petition was disposed of the selection process was not complete. The validity of the notices could not have been challenged before the learned Single Judge as the said notices were issued during the pendency of the appeal. Before the Appellate Court in the application for extension the said notices were disclosed in justification of extension of time to complete the entire selection process. The Hon‟ble Division Bench made caustic remarks about the delay but did not adjudicate upon the validity of the said notices or decide or the authority and power of the Commission to undertake such exercise to hold a fresh written test for the eligible candidates who were left out due to the mistake of the Commission. The order of the Hon‟ble Division Bench is required to be read in the aforesaid context.
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126. The judgments are to be read, understood and applied contextually. As observed in Municipal Corporation, Delhi v. Gurnam Kaur22, the Hon‟ble Supreme Court in paragraph 12 held the following: -
―12. In Gerard v. Worth of Paris Ltd. (k). [(1936) 2 All ER 905 (CA)], the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd.
v. Bremith Ltd. [(1941) 1 KB 675], the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided ―without argument, without reference to the crucial words of the rule, and without any citation of authority‖, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.‖ (emphasis supplied) 22 (1989) 1 SCC 101 71
127. In Union of India v. Dhanwanti Devi,23 the Apex Court has in paragraph 9 discussed the concept of binding precedent and ratio decidendi which reads as follows: --
‗9. ....... It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained 23 (1996) 6 SCC 44 72 on a consideration of the judgment in relation to the subject- matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents.....‖ (emphasis supplied)
128. Similarly, in Director of Settlements, A.P. v. M.R. Apparao24, the Apex Court has made similar observation in paragraph 7 which reads as follows: --
―7. ..... But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has ―declared law‖ it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a 24 (2002) 4 SCC 638 73 decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An ―obiter dictum‖ as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision......‖ (emphasis supplied)
129. The same stand was further reiterated by the Hon‟ble Supreme Court of India in the decision Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group25 in paragraph 312 which reads as follows:
―312. ......A judgment, it is well settled, cannot be read as a statute. Construction of a judgment, it is well settled, should be made in the light of the factual matrix involved therein. What is more important is to see the issues involved therein and the context wherein the observations were made. Any observation made in a judgment, it is trite, should not be read in isolation and out of context.‖ (emphasis supplied)
130. Moreover, the Hon‟ble Division Bench was conscious of the fact that it had become functus officio after 4th February, 2020 and hence the subsequent orders were confined to extension and not an adjudication on the notices. The basis of the writ petitions filed by the appellants is the interpretation of the order of the learned Single Judge and the Hon‟ble Division Bench perceived as prohibiting any such future exercise for holding a fresh written examination of candidates found eligible before the selection process is complete and who became victim of an error of the Commission 25 (2006) 3 SCC 434 74 during evaluation which are discernible from the OMR sheets preserved by the Commission for posterity.
131. The observations against the Commission by the Hon‟ble Division Bench in MAT 907 of 2018 in its orders dated 12.09.2023 and 13.06.2024 were never binding precedent or ratio decidendi in the said intra-Court appeal nor it operates as res judicata.
132. The Recruitment Rules, 2010 expressly do not prohibit the Commission from holding a second written test in respect of those candidates who have been eliminated wrongly on account of wrong evaluation of OMR sheets by an incorrect answer key. Therefore, Commission did not exceed the limits laid down by the statute. However, it is very true that the Commission consumed more than a decade to complete the recruitment process leaving the fate of thousands of candidates in a lurch presumably due to pendency of matters concerning the validity of the West Bengal Madrasah Service Commission Act, 2008. Although there is no contention that tainted candidates have been selected by the Commission or any irregularity has crept in the re-evaluation process, delayed initiation of the fresh written examination process is likely to give rise for allegations of bias, mala fide and misuse of power although the present challenge is not based on any of such allegations. The law laid down in Vikas Pratap Singh & Ors. (supra) states that if the irregularities in evaluation could be noticed and corrected specifically and undeserving select candidates be identified and, in their place, deserving candidates be included in select list, then no illegality would be said to have crept in the process of re-evaluation. 75
133. In State of Assam v. Arabinda Rabha26, in paragraph 28 it was held:
―28. ......... this Court noticed that the RRB had three courses of action once the irregularities had been brought to light. The first option was to conduct the written examination again for all the eligible candidates, which would be expensive and time consuming. The second option was to conduct re-test for the candidates who had obtained the minimum qualifying marks. The third option would have been to exclude the sixty-two candidates who were identified as having indulged in impersonation. The RRB, relying on the vigilance report, held that there were allegations and prima facie evidence of mass copying as well as leakage of question papers and these irregularities could not be tackled by just excluding the sixty- two candidates accused of impersonation. This Court held that the actions of the RRB to conduct the re-test for candidates who obtained the minimum qualifying marks struck the right balance, as the first option would have been too expensive and time consuming and the third option would have been too restrictive in combatting the irregularities in the examination.‖ (emphasis supplied)
134. Relying upon the decision of the Hon‟ble Supreme Court in Arabinda Rabha (supra), the learned Single Judge in paragraphs 113-116 of the impugned judgment held the following: -
―113. In the event the proposition of law as decided in the reported decision of Arubindo Rabha (supra) is applied in the factual aspects of this case, it appears to this court that after disposal of the aforementioned intra-court appeal being MAT 907 of 2018 the Commission had following options: -
a) Allowing the said recruitment process to be taken to its logical conclusion, without being bothered by the errors committed by it on 26 2025 SCC OnLine SC 523 76 account of wrong evaluation of 73,978 eligible candidates in the screening test.
b) Cancelling written examination as held on 29.05.2011 and to hold the same afresh allowing all the examinees found to be successful in the screening test.
c) Holding second written examination for the 73,978 eligible candidates maintaining same level field and thus to complete the entire process.
114. It appears that the Commission rightly did not go for option (a) hereinabove as otherwise its action would be violative of Article 14 read with Article 19(1) (g) of the constitution.
115. The commission cannot opt for option (b) since the commission has been expressly prohibited by the orders dated 12.09.2023 and 13.06.2024 passed by a Division Bench of this Court in the said intra-court appeal for holding a written examination afresh of 1,01,064 numbers of candidates.
116. In view of such, it appears to this Court that the commission had only option left i.e option (c) as mentioned (supra) which has been opted by the commission keeping in mind the sanctity of the competitive recruitment examination upon close analysis of the situation. This court thus finds that the decision of the commission for holding second written examination after publication of the aforementioned two notices under challenge is quite reasonable and the same was befitting for the situation as was prevailing then. It thus appears to this court that the decision of the Commission for holding of the second written examination maintaining same level playing field is found to be successful in the touchstone test of ‗Wednesbury unreasonableness' test as well as the test of ‗proportionality'.‖ (emphasis supplied)
135. Therefore, the decision of the Commission to hold a second written examination for 73,978 candidates on September 1, 2024 who were 77 unable to appear for the written examination held on May 29, 2011 due to incorrect evaluation of OMR sheets by the Commission cannot be characterised as arbitrary, illegal and mala fide. The Commission has preserved the OMR sheets.
136. In our considered view, the observations of the Hon‟ble Division Bench in its orders dated 12th September, 2023 and 13th June, 2024 in the said intra-Court appeal cannot put any handcuff upon the Commission in taking a policy decision to hold a fresh written test on 1st September, 2024 in respect of 73,978 candidates.
137. The appellants have not alleged that there has been any malafide exercise of power or the decision to hold a fresh written test was mala fide. The Rule of game was not changed as all throughout separate question papers were set for screening test for three sessions.
138. It is to be noted that a mistake committed by an administration cannot furnish a valid or legitimate ground for the Court to direct the administration to go on repeating that mistake as held in the decision Chandigarh Administration (supra). A Division Bench of this Court in the decision Indian Oil Corporation Ltd. (supra) held that if a person enjoys benefit de hors his right conferred by statute or by agreement he cannot claim continuation of the same and other party is entitled to rectify such mistake and/or wrong. We accept the submissions made on behalf of the Commission and interveners.
139. The interest of all the eligible candidates is of paramount importance. On such consideration, we are not inclined to interfere with the impugned judgment.
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140. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.
(Soumen Sen, J.) I agree.
(Apurba Sinha Ray, J.)