Calcutta High Court (Appellete Side)
Md Habil & Ors vs The State Of West Bengal &Ors on 16 July, 2025
2025:CHC-AS:1314
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble Justice PARTHA SARATHI SEN
WPA 24588 of 2024
Md Habil & Ors.
Vs.
The State of West Bengal &Ors.
With
WPA 1436 of 2025
Abdul Tarif & Ors.
Vs.
State of West Bengal & Ors.
With
WPA 21918 of 2024
Hafizul Haque & Ors.
Vs.
The State of West Bengal & Ors.
WPA 24781 of 2024
Md. Habib Mandal & Ors.
Vs.
The State of West Bengal & Ors.
With
WPA 25438 of 2024
Abdul Latif & Ors.
Vs.
The State of West Bengal & Ors.
With
WPA 26090 of 2024
With
CAN 2 of 2025
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Jayanta Sardar & Ors.
Vs.
The State of West Bengal & Ors.
With
WPA 26237 of 2024
Basudeb Bej & Ors.
Vs.
The State of West Bengal & Ors.
With
WPA 26792 of 2024
Alamgir Sardar & Ors.
Vs.
The State of West Bengal & Ors.
With
WPA 29253 of 2024
Rumpa Samanta & Ors.
Vs.
The State of West Bengal & Ors.
With
WPA 845 of 2025
Syed Golam Mortaza & Ors.
Vs.
The State of West Bengal & Ors.
With
WPA 9578 of 2025
Nasir Ahammed
Vs.
The State of West Bengal & Ors.
With
WPA 2304 of 2024
(Ciruit Bench at Jalpaiguri)
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Subrata Bhowmick
Vs
The State of West Bengal and Ors.
For the petitioners in : Mr. Soumya Majumder, Sr. Adv.,
WPA 24588 of 2024, Mr. Biswaroop Bhattacharya, Adv.,
WPA 25438 of 2024 & Mr. Anindya Bose, Adv.,
WPA 26090 of 2024 Mr.1Golam1Mohiuddin,1Adv.,
1Mr. Mridul Biswas, Adv.
For the petitioners in : Mr. Bikash Ranjan Bhattacharya,Sr. Adv.,
WPA 1436 of 2025 Mr. Suman Sankar Chatterjee, Adv.,
Mr. Pronay Basak, Adv.
For the petitioners in: Mr. Anindya Mitra, Sr. Adv.,
WPA 845 of 2025 Mr. Uday Shankar Chatterjee, Adv.,
Mr. Bidisha Chakraborty, Adv.
For the State in : Mr. Sirsanya Bandopadhyay, Adv.,
WPA 24588 of 2024 & Mrs. Tapati Samanta, Adv.
WPA 1436 of 2025.
For the applicant in : Ms. Anita Khatri, Adv.
WPA 21918 of 2024 &
in CAN 6 of 2024.
Mr.Soumya Majumder,Sr. Adv.
For the petitioners in : Mr.Vishak Bhattacharya, Adv.,
WPA 21918 of 2024. Ms. Biyanka Bhattacharya Adv.
For the State in : Mr. Vimal Kumar Shahi, AGP
WPA 21918 of 2024. Ms. Pratiti Das, Adv.,
For the petitioner in : Mr. Sabyasachi Chatterjee, Adv.,
WPA 29253 of 2024 Mr. Badrul Karim Adv.,
Ms. Priyanka Pal, Adv.,
Ms. Monalisha Sinha, Adv.,
Mr. Aritra Ghosh, Adv.
For the State in : Mr. Biswabrata Basu Mallik, AGP
WPA 29253 of 2024. Mr. Tamal Taru Panda Adv.
For the State in : Mr. Biswabrata Basu Mallik, AGP
WPA 845 of 2025. Ms. Parna Roy Choudhury, Adv.
For the Madrasha Service : Mr. Pratik Dhar, Sr. Adv.
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Commission in WPA 24588 Ms. Madhurima Sarkar Adv.
of 2024, Mr. Prosenjit Mukherjee
WPA 21918 of 2024,
WPA 29253 of 2024,
WPA 24781 of 2024
WPA 25438 of 2024,
WPA 26237 of 2024,
WPA 845 of 2025,
WPA 1436 of 2025 &
WPA 2304 of 2024.
For the petitioners in : Mr. Dibyendu Chatterjee, Adv.,
WPA 24781 of 2024 and Mr. Pritam Majumdar, Adv.,
in WPA 26792 of 2024 Mr. Rahul Deb Goenka, Adv.,
Mr. Mainak Singha Barma, Adv.,
Ms. Satabdi Das, Adv.
For the State in : Mr. Supriyo Chattopadhyay, AGP
WPA 24781 of 2024 & Mr. Shamim Ul Bari, Adv.
WPA 25438 of 2024.
For the applicant in : Mr. Pratik Majumder, Adv.,
CAN 1 of 2024 with Mr. Snehasish Dey, Adv.
WPA 26090 of 2024 and
in CAN 3 of 2024 and
CAN 4 of 2024 in
WPA 25438 of 2024.
For the petitioners in : Mr. Firdous Samim, Adv.,
WPA 24588 of 2024 and Ms. Gopa Biswas, Adv.,
in WPA 26237 of 2024 Mr.Mainak Ghosal, Adv.,
Mr. Saikat Mallick, Adv.,
Mr. Hasanuz Zaman Molla, Adv.
For the State in WPA : Mr. Kishor Datta, Ld. AG,
26090 of 2024 Ms. Sumita Shar, Adv.,
Mr. Soumen Chatterjee, Adv.
For the State in WPA : Mr. Ansar Mandal, AGP,
26237 of 2024 Mr. Amit Kumar Ghosh, Adv.,
Mr. Suboshree Ghosh, Adv.
For the State in WPA : Mr. Swapan Banerjee, AGP,
26792 of 2024 Mr. Soumen Chatterjee, Adv.
For the petitioner in WPA : Mr. Samim Ahammed, Adv.,
WPA 9578 of 2025 Ms. Gulsanwara Pervin, Adv.,
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Ms. Saloni Bhattacharjee, Adv
For the Madrasah Board: Mr. Nadeem Sulaiman, Adv.,
Mr. Mahammad Jowwod, Adv.
For the petitioner in WPA : Ms. Debapriya Mitra, Adv.
2304 of 2024
For the State in WPA : Mr. Nabankur Paul, Adv.
2304 of 2024
Hearing concluded on: 02.07.2025.
Judgment on: 16.07.2025.
PARTHA SARATHI SEN, J. : -
1. Since identical set of facts and identical questions of law are involved in
the instant writ petitions, this Court proposes to dispose of the instant writ
petitions by a common judgement.
2. The subject matters of challenge in WPA 24588 of 2024, WPA 21918 of
2024, WPA 24781 of 2024, WPA 25438 of 2024, WPA 26090 of 2024, WPA
26237 of 2024, WPA 26792 of 2024, WPA 9578 of 2025 and WPA 2304 of 2024
are the legality and validity of the notices dated 05.08.2024 and 09.08.2024 as
issued by the West Bengal Madrasah Service Commission (hereinafter referred
to as 'the Commission' in short).
3. In WPA 29253 of 2024 the writ petitioners have prayed for issuance of
appropriate writ/writs against the Commission to give appointment as per
merit list dated 04.08.2024.In WPA 845 of 2025 and in WPA 1436 of 2025 the
writ petitioners have made identical prayers as have been made in WPA
29253/24.
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4. For effective adjudication of the instant lis some admitted facts are
required to be discussed and those are stated hereinbelow in seriatim:-
i. On 27.03.2010 the Commission published an advertisement for
holding First State Level Selection Test, 2010 (hereinafter referred
to as the said 'Test' in short) for filling up 272 numbers (tentative)
Group D posts (Group D peon and Laboratory Attendant) in
different non-aided government Madrasah in West Bengal.
ii. On 28.11.2010 a preliminary screening test/examination was
conducted by the Commission in three sessions.
iii. On 29.05.2011 the Commission conducted written examination in
connection with the said test where 26,445 candidates appeared
by qualifying preliminary screening test.
iv. Since the Commission did not publish the result of the said written
examination of the said test, one Soumen Malakar filed WPA 1722
(W) of 2018 against the Commission which came to be disposed of
by a Co-ordinate Bench on 23.07.2018 wherein the Commission
was directed to intimate the writ petitioner of the said writ petition
the result of evaluation of his answer script forthwith and if the
writ petitioner in the said writ petition is found to be qualified, the
Commission was directed to prepare the panel in terms of Rule 18
of the West Bengal Madrasah Service Commission Recruitment
(Selection and Recommendation of Persons for Appointment and
Transfer to the Posts of Teacher and Non-teaching Staff) Rules
2010 (hereinafter referred to as the said 'Rules of 2010' in short).
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The said Co-ordinate Bench by its order dated 23.07.2018 further
directed the Commission and its instrumentalities to issue
invitation letter to the successful candidates of such written
examination for the personality test without waiting for any
instruction from the State of West Bengal. The said order clearly
stipulates that the entire exercise is to be completed within the
stipulated period as mentioned therein.
v. Challenging the said order dated 23.07.2018 the Commission
preferred an appeal before a Division Bench of this Court being
MAT 907 of 2018 which was disposed of on 04.02.2020 whereby
and whereunder the said Division Bench did not interfere with the
order dated 23.07.2018 as passed by the said Co-ordinate Bench.
However, the said Division Bench modified the said order to the
extent directing the Commission to exercise strictly in terms of the
direction passed by the Co-ordinate Bench within 6 months.
vi. Subsequent to passing of the order and judgment dated
04.02.2020 the Commission again approached the said Division
Bench for extension of time for compliance of the order dated
23.07.2018 as passed by the learned Single Bench and by an order
dated 12.09.2023 the Hon'ble Division Bench extended such time
for further six months.
vii. On 13.06.2024 the self same Division Bench while entertaining
another application for extension of time as filed by the
Commission was pleased to extend the time for a further period of
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three months from date to complete the exercise strictly in terms of
order of the Single Bench subject to payment of cost of Rs.2 lacs by
the Commission.
viii. On 04.08.2024 the Commission published a notice to the effect
that 24577 numbers of candidates who appeared in the written
examination as held on 29.05.2011 need not to appear in written
examination again.
ix. On 05.08.2024 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
29.05.2011 have been permitted to appear in the written
examination for the said test on 01.09.2024.
x. On 09.08.2024 a similar notice was published by the Commission
in English.
xi. On 01.09.2024 pursuant to the aforesaid two notices dated
05.08.2024 and 09.08.2024 the Commission conducted written
examination of 73,978 candidates.
xii. On 12.09.2024 the Commission published the list of successful
candidates in the written examinations as held on 29.05.2011 and
01.09.2024 for appearing in personality test.
xiii. From 18.09.2024 to 30.09.2024 Commission took personality test
of 3,233 candidates.
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xiv. On 04.10.2024 the Commission published final merit list who
would be called for counseling in respect of 297 vacancies.
5. In course of his submission Mr. Soumya Majumdar, learned Senior
Advocate duly assisted by Mr. Aninda Bose appearing on behalf of the writ
petitioners in WPA 24588 of 2024, WPA 25438 of 2024 and WPA 21918 of
2024 at the very outset submits that the petitioners of the aforementioned
three writ petitions participated in the written test as held on 29.05.2011. At
this juncture Mr. Majumdar draws attention of this Court to the copy of the
judgement and order dated 23.07.2018 as passed by the said Co-ordinate
Bench in WPA 1722(W) of 2018 (Shri Soumen Malakar vs. State and
Ors.).
6. Attention of this Court is also drawn to the order dated 25.11.2024 as
passed by another Co-ordinate Bench of this Court in WPA 21918 of 2024
(Hafizul Haque and Ors. vs. the State of West Bengal and Ors.) and the
order dated 14.10.2024 as passed in WPA 25438 of 2024. Attention of this
Court is also drawn to page no.11 of the comprehensive affidavit as filed by the
Commission as affirmed on 17.04.2025.
7. It is submitted that on perusal of the aforementioned two orders dated
14.10.2024 and 25.11.2024 it would reveal that in the aforementioned two writ
petitions the Commission did not disclose any specific date and/or period
regarding alleged flaws and/or technical errors in evaluating some OMR sheets
in the screening test as held on 28.11.2010. Drawing attention to page nos. 18
and 19 of the composite affidavit as filed by the Commission it is submitted by
Mr. Majumdar that though it is the case of the Commission that after
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12.09.2023 the Commission started the process of re-evaluation of OMR sheets
of the screening test as held on 28.11.2010 however from the internal page
nos. 6 and 7 of the order dated 13.06.2024 as passed in MAT 907 of 2018 (the
West Bengal Madrasah Service Commission and Anr. vs. SoumenMalakar
and Anr.) it would reveal that the Hon'ble Division Bench in the said appeal
expressly held that the said Division Bench was unable to comprehend the
stand of the Commission that further written test would be required to be
taken when the same was not accepted by the Single Bench as well as by the
Division Bench.
8. It is thus submitted by Mr. Majumdar that the version the Commission
that it was not restrained by the Division Bench of this Court from holding
further written examination of 73,978 candidates is contrary to the truth.
9. At this juncture Mr. Majumdar draws attention of this Court to the copy
of the interlocutory application being CAN 4 of 2024 as filed in connection with
WPA 21918 of 2024 wherein the petitioners of the said interlocutory
application had prayed for clarification and/or modification of the order dated
25.01.2024 as passed by another Co-ordinate Bench in WPA 21918 of 2024
(Hafizul Haque and Ors. vs. State of West Bengal) whereby and whereunder
the Commission was directed to conclude the selection examination of the year
2010 without taking any fresh written test in respect of any other candidate in
terms of the notice dated 05.08.2024.
10. It is submitted by Mr. Majumder that from the averments made in the
said interlocutory application it would reveal that subject matter of
consideration before the Hon'ble Supreme Court in respect of the self same
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examination is with regard to numbers of actual vacancy which has got no
relevance over the written examination as held on 29.05.2011.
11. It is thus submitted by Mr. Majumder that since the notices dated
05.08.2024 and 09.08.2024 as issued by the said Commission are contrary to
the direction of the Single Bench in the case of Soumen Malakar i.e. WP
1722 (W) of 2018 and the judgement and order dated 13.06.2024 as passed
by a Division Bench of this Court in MAT 907 of 2018 and the order dated
25.11.2024 as passed by another Co-ordinate Bench in the case of Hafizul
Haque i.e. WPA 21918 of 2024 the aforesaid two notices cannot be permitted
to be sustained in the eye of law and therefore the aforesaid two notices may be
quashed by issuing appropriate writ/writs with a further direction for quashing
of the subsequent actions taken by the Commission pursuant to the said two
notices under challenge dated 05.08.2024 and 09.08.2024.
12. Mr. Firdous Samim, learned advocate appearing on behalf of the writ
petitioners in WPA 26237 of 2024 at the very outset draws attention of this
Court to paragraph nos. 14 and 15 of WPA 26237 of 2024. In course of his
submission Mr. Samim draws further attention of this Court to the various
clauses of the said Rules of 2010. It is submitted by Mr. Samim that holding of
second written examination on 01.09.2024 pursuant to the aforementioned two
notices under challenge is violative of the said Rules of 2010 since the said
Rules of 2010 do not permit the Commission to hold written examination in
two phases for the aforementioned test. It is further submitted by Mr. Samim
that the said Rules of 2010 also do not prescribe any mechanism for
normalization and scaling of different sets of question papers in the self same
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written examination. It is further argued by Mr. Samim that after initiation of
the recruitment process the Commission is not entitled to change the rules of
examination without giving due adherence to the provisions of the said Rules of
2010.
13. It is further argued by Mr. Samim that the said Rules of 2010 also do not
empower the Commission to re-evaluate the OMR sheet afresh and thus in
absence of any specific provision in the said Rules of 2010 action of the
Commission regarding alleged re-evaluation must be held to be impermissible.
14. Drawing attention to the composite affidavit as filed by the Commission
vis-à-vis to paragraph 17 of the order dated 13.06.2024 as passed by the
Hon'ble Division Bench in the intra court appeal being MAT 907 of 2018 it is
submitted by Mr. Samim that the Commission cannot be permitted to raise the
issue regarding holding of written test for the second time in view of the fact
the same was made at rest by the Hon'ble Division Bench in the
aforementioned appeal by specifically holding that the said Division Bench was
unable to comprehend the stand of the Commission that further written test
was required to be conducted. It is thus submitted by Mr. Samim that the
matter in issue as has been sought to be raised by the Commission in their
comprehensive affidavit is identical with the matter in issue in CAN 20 of 2024
as filed in MAT 907 of 2018 and therefore the same may be held as barred
under the principle of res judicata.
15. It is further contended by Mr. Samim that Clauses 15 to 18 of the said
Rules of 2010 clearly indicate that the written test and/or written examination
must be held to be in one go. It is thus submitted by Mr. Samim that holding
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two separate written examinations for the aforementioned selfsame test is
violative of Article 14 of the Constitution since equals have been treated
differently without reasonable basis and thus chance of improper
discrimination by conferring particular privileges upon a class of persons
arbitrarily selected from a large number of persons all of whom stand in the
same relation to the privilege granted cannot be ruled out. It is thus submitted
by Mr. Samim that in absence of any reasonable basis for a classification as
has been wrongly done by the Commission the aforementioned two notices
dated 05.08.2024 and 09.08.2024 may be quashed and the subsequent actions
as taken by the Commission pursuant to the aforesaid two notices may also be
set aside.
16. Mr. Biswaroop Bhattacharya, learned advocate appearing on behalf of
the writ petitioners in WPA 26090 of 2024 in course of his argument draws
attention of this Court to page nos. 53 to 55 of the said writ petition being
copies of two notices dated 04.08.2024 and 05.08.2024 as published by the
said Commission. It is submitted by Mr. Bhattacharya that in the two notices
dated 04.08.2024 there were no indications on the part of the Commission
regarding holding of further written examination of the said test however, in
the notification dated 05.08.2024 which is the subject matter of challenge in
the instant writ petition the Commission for the first time disclosed that it
would allow 73,978 candidates for appearing in the written test.
17. At this juncture Mr. Bhattacharya draws attention of this Court to page
no.49 of WPA 26090 of 2024 being a copy of the notice dated 30.07.2024. It is
submitted by Mr. Bhattacharya that by the said notice dated 30.07.2024 the
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Commission categorically indicated that in compliance of the order passed in
WPA 1722 (W) of 2018 and in terms of the judgement and order dated
13.06.2024 as passed in MAT 907 of 2018 the said Commission was planning
to complete the recruitment process of the said test. In course of his
submission Mr. Bhattcharya draws attention of this Court to the order dated
12.09.2023 and 13.06.2024 as passed by the Hon'ble Division Bench in MAT
907 of 2018 vis-a-vis the order dated 25.11.2024 as passed by the Co-ordinate
Bench in WPA 21918 of 2024 (Hafizul Haque and Ors. Vs. The State of
West Bengal and Ors.). It is submitted by Mr. Bhattacharya that on conjoint
reading of the aforementioned three orders it would reveal that neither the
Hon'ble Division Bench in the said appeal nor a Co-ordinate Bench of this
Court in the case of Hafizul Haque (supra) permitted the Commission to hold
further written examination as has been done by the Commission pursuant to
the two notices under challenge.
18. It is thus submitted by Mr. Bhattacharya that the purported action of the
Commission on the basis of the aforesaid two notices under challenge is per se
illegal and tantamounts to violation of the direction of the Hon'ble Division
Bench and the Co-ordinate Bench.
19. Placing his reliance upon the judgement and order dated 30.05.2024 of
the Hon'ble Supreme Court in WP(Civil) no.456 of 2025 (Aditi and Ors. Vs.
National Board of Examination in Medical Science and Ors) it is
submitted by Mr. Bhattacharya that by holding two different written
examinations for the said test the Commission acted in an arbitrary manner
inasmuch as the Commission had miserably failed to visualize that holding of
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two separate examinations for the self same recruitment process would not
entail at per evaluation of the competitive merit of the candidates who took the
examinations.
20. It is thus submitted by Mr. Bhattacharya that on such score the
aforementioned two notices under challenge and the subsequent actions of the
Commission pursuant to such notices may be quashed. It is further submitted
by Mr. Bhattacharya that while issuing the aforesaid two notices under
challenge and while conducting second written test the Commission has failed
to visualize the true spirit of the doctrine of 'level playing field' which is
embodied in Article 19 (1)(g) which is also to be construed in terms of
principles laid down in Articles 14 and 21 of the Constitution of India. In this
regard Mr. Bhattacharya places his reliance upon the reported decision of
Reliance Energy Ltd. and Anr vs. Maharashtra State Road Development
Corpn. Ltd and Ors. reported in (2007) 8 SCC 1.
21. Mr. Dibyendu Chatterjee, learned advocate appearing on behalf of the
writ petitioners in WPA 24781 of 2024 and in WPA 26792 of 2024 adopted the
argument of Mr. Majumdar and Mr. Bhattacharya.
22. Mr. Samim Ahmed, learned advocate appearing on behalf of the writ
petitioners in WPA 9578 of 2025 also places his reliance upon the order dated
23.07.2018 as passed by a Co-ordinate Bench in the case of Soumen Malakar
(supra).It is submitted by Mr. Ahmed that before the Co-ordinate Bench in the
case of Soumen Malakar (supra) the stand of the Commission was on account
of non-receipt of instruction from the Government they could not publish the
result. It is further submitted by Mr. Ahmed that the alleged technical flaws on
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the part of the Commission resulting in alleged deprivation of 73,978
candidates was never brought to the notice of either of the Co-ordinate Bench
or of the Division Bench who were hearing the writ petitions and the intra
court appeal arises therefrom in the case of Soumen Malakar(supra) and such
factum was also not brought to the notice of another Co-ordinate Bench when
the said Co-ordinate Bench was dealing with the case of Hafizul Haque
(supra) as would be evident from the order dated 25.01.2024 as passed in WPA
21918 of 2024.
23. Mr. Ahmed further argued that from the materials placed before this
Court it would reveal that the written test dated 01.09.2024 was taken by the
Commission in gross violation of the orders passed in case of Soumen
Malakar (supra) and Hafizul Haque (supra) as well as of the Division Bench
in an appeal preferred by the Commission against the judgement passed in the
case of Soumen Malakar(supra). Placing his reliance upon the reported
decision of Manohar Lal (Dead) by Lrs. Vs. Urgrasen (dead) By Lrs. with
Ghaziabad Development Authority vs. Ugrasen (dead) by Lrs. reported in
(2010) 11 SCC 557 it is submitted by Mr. Ahmed that in the event this Court
finds breach on the part of the Commission in obeying the orders of this Court,
this Court has every authority to bring back the parties to the same position as
if the orders have not been violated. It is further submitted by Mr. Ahmed that
even an unsuccessful candidate has his right to challenge a recruitment
process in the event it is found that an ineligible candidate has been selected
and/or the process of selection is either tainted or invalidated. In this regard
Mr. Ahmed places his reliance upon the reported decision of Mriganka
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Mondal vs. Dr .Asitabha Das and Ors. and University of Kalyani vs.
Asitabha Das and Ors. reported in (2019) 1 CHN 310.
24. In his next fold of submission Mr. Ahmed draws attention of this court to
the order dated 04.02.2022 as passed in MAT 907 of 2018 by a Division Bench
of this Court. it is submitted that the Hon'ble Division Bench in the said order
04.02.2020 had recorded that the appellant/Commission had forgone all other
grounds of challenge initially made in the said appeal and only restricted its
prayer to the extension of time for compliance of the order as passed by the Co-
ordinate Bench in the case of Soumen Malakar(supra). It is thus submitted by
Mr. Ahmed that at present the Commission ought not to be permitted to take a
contrary stand in the instant writ petition.
25. It is further argued by Mr Ahmed that the writ petitioners who are
supporting the action of the Commission had accepted their failure in the
written examination as held on 29.05.2011 by not challenging the said result
in a court of law and therefore the said writ petitioners cannot come forward at
present for implementation of the decision of the Commission pursuant to the
aforementioned two notices under challenge.
26. Per contra Mr. Dhar, learned senior advocate appearing on behalf of the
respondent/Commission at the very outset draws attention of this Court to the
order dated 23.07.2018 as passed by a Co-ordinate Bench of this Court in the
case of Soumen Malakar(supra). It is submitted by Mr. Dhar that on perusal
of the said order dated 23.07.2018 in WPA 1722 (W) of 2018 it would reveal
that the prayer of the writ petitioner Soumen Malakar was restricted to the
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preparation of the panel in terms of the Clause 18 of the said Rules which was
allowed by the Co-ordinate Bench.
27. It is further submitted by Mr. Dhar that from the order dated 04.02.2020
as passed in MAT 907 of 2018 in an intra court appeal preferred by the
Commission the Hon'ble Division Bench specifically directed the Commission
to complete the exercise strictly in terms of the direction passed in the case of
Soumen Malakar (supra) within six months from date. It is thus submitted by
Mr. Dhar that on conjoint perusal of the said order dated 23.07.2018 and
04.02.2020 as passed by a Co-ordinate bench and the Division Bench
respectively it would reveal that the said two decisions either expressly or
impliedly did not debar the Commission to deal with any other issues relating
to the said test i.e. the recruitment examination.
28. It is further submitted by Mr. Dhar that the situation which was
prevailing subsequent to the detection of the technical flaws by the
Commission was not prevailing when the aforementioned two orders were
passed. It is thus submitted by Mr. Dhar that the findings of the Division
Bench dated 12.09.2023 and 13.06.2024 while disposing of some interlocutory
application for extension of time is merely an obiter since before the Division
Bench the germane issue was non-publication of the result of the written
examination as held on 29.05.2011 as directed to be published by the Co-
ordinate Bench within a stipulated period. In support of his contention Mr.
Dhar places his reliance upon the reported decision of Arun Kumar Aggarwal
vs. State of Madhya Pradesh and Ors. reported in (2014) 13 SCC 707.
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29. It is further submitted by Mr. Dhar that holding second written
examination after detection of technical flaws by the Commission for 73,978
candidates and the legality, justifiability and correctness of the decision of the
Commission for holding such second written examination was/were never ratio
decidendi either in the case of Soumen Malakar (supra) or in the appeal
preferred from the judgement as passed in case of Soumen Malakar (supra)
before the Division Bench. It is thus submitted by Mr. Dhar that in view of
such proposition of law, the argument of the learned advocates for the writ
petitioners who have challenged the aforementioned two notices are not
sustainable in law since the orders and judgments as passed in the case of
Soumen Malakar (supra) and in the in intra court appeal as arising therefrom
had got no restrictive and prohibitory effect over the act done by the
Commission to prevent the abuse of process and /or to do substantial justice
to those candidates who have been wrongly eliminated on account of technical
flaws of the Commission. In this regard Mr. Dhar places his reliance upon the
reported decision of State of Gujarat and Ors. vs. Utility Users' Welfare
Association and Ors. reported in (2018) 6 SCC 21.
30. It is further submitted by Mr Dhar that the circumstances under which
the Co-ordinate bench and the Division Bench passed the orders in the case of
Soumen Malakar (supra) and in the intra court appeal arising therefrom are
different from the circumstances in which the notices under challenge have
been published and therefore only logical deduction can be drawn from the
orders of the Co-ordinate bench and the Division Bench in the case of Soumen
Malakar (supra) and in the intra court appeal as preferred therefrom that
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those have been passed in different factual situations which are
distinguishable from the factual situations as involved in the instant writ
petitions. It is thus submitted by Mr. Dhar that by no stretch of imagination it
can be said that the said orders had got any prohibitory effect upon the action
of the Commission as has been discharged in good faith. In this regard Mr.
Dhar places his reliance upon reported decision of Davinder Singh and Ors.
vs. State of Punjab and Ors. with Dilbagh Singh and Ors. vs. State of
Punjab and Ors. reported in (2010) 13 SCC 88.
31. Placing reliance upon the reported decision of Dadu Dayalu
Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas and Anr.reported in
(2008) 11 SCC 753, Bussa Overseas and Properties Private Limited and
Anr. vs. Union of India and Anr. reported in (2016) 4 SCC 696 and State of
Haryana vs. Ranbir Alias Rana reported in (2006) 5 SCC 167 it is further
argued by Mr. Dhar that it would be proper and appropriate if the ratio of the
orders as passed by the Single Bench and the Division Bench in the case of
Soumen Malakar (supra) and the intra court appeal arising therefrom is
viewed in connection with the issues involved in the instant writ petitions since
the same is very much vital for effective disposal of the instant writ petitions.
32. It is further submitted by Mr. Dhar that after detection of flaws of the
Commission, the Commission has regularized the irregularities in order to do
justice to the deserving candidates who have been wrongly eliminated basically
at the fault of the Commission and thus by no stretch of imagination it can be
said that an illegality cropped upon the action of the Commission as wrongfully
argued on behalf of the petitioners. In this regard Mr. Dhar places his reliance
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upon a reported decision of Vikas Pratap Singh and Ors. vs. State of
Chattisgarh and Ors. with Rajendra Singh Kanwar and Ors. vs. State of
Chattisgarh and Ors. and Rajendra Singh Kanwar and Ors. vs. Rahul
Bhagat and Ors. reported in (2013) 14 SCC 494.
33. It is further argued by Mr. Dhar that the writ petitioners who were
challenging the impugned notices have got no indivisible right to employment
and thus they have got no locus standi to challenge the subsequent two
notifications of the Commission in absence of any arbitrariness and/or
perversity in the action of the commission inasmuch as the notice dated
04.08.2024 clearly indicates that the successful candidates of the written test
dated 29.05.2011 would no way be deprived. In support of his contention
Mr.Dhar places his reliance upon the reported decision of Dinesh Kumar
Kashyap and Ors. vs. South East Central Railway and Ors. reported in
(2019) 12 SCC 798.
34. Placing reliance upon the reported decision of Ajithkumar P. and Ors.
vs. Remin K.R and Ors. with Girilal D. vs. Nidheesh B. and Ors. reported
in(2015) 16 SCC 778 and Duddilla Srinivasa Sharma and Ors. vs. V.
Chrysolite reported in(2013) 16 SCC 702 it is submitted by Mr. Dhar that in
the said two reported decisions the Hon'ble Supreme Court upheld the decision
of the recruiting authority to conduct a preliminary examination when an
unmanageable large number of applications are received for filing up a limited
number of posts.
35. In course of his argument Mr. Dhar further draws attention of this court
to the photocopy of the question papers in connection with the written test as
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held on 29.05.2011 as well as in connection with the written examination as
has been held on 01.09.2024 pursuant to the subsequent two notifications
under challenge. It is submitted by Mr. Dhar that on comparative study of the
said two question papers it would reveal that keeping in mind that the written
examinations were taken in two phases and also in order to avoid any
arbitrariness and in order to entail at par evaluation, the question paper in
respect of the subsequent written test had been set by the Commission in such
a manner so that same levels can be maintained.
36. It is further contended by Mr. Dhar that in WPA 24588 of 2024 as well as
in similar other writ petitions the main allegation of the writ petitioners against
the Commission is that the Commission had issued two notices under
challenge dated 05.08.2024 and 09.08.2024 for conducting further written test
of 73978 candidates violating the order of the Co-ordinate Bench as passed on
23.07.2018 in WP 1722(W) of 2018 as well as the different orders as passed by
the Division Bench in MAT 907 of 2018. Placing reliance upon the reported
decision of State of Assam vs. Barak Upatyaka D.U. Karamchari Sanstha
reported in (2009) 5 SCC 694it is submitted by Mr. Dhar that the observation
of the Hon'ble Division Bench for not comprehending the stand of the
Commission for holding further written test on the ground of detection of error
in evaluation of the answer sheets was not a ratio deci dendi in the said appeal
and therefore the orders of the Hon'ble Division Bench while disposing several
interlocutory applications for extension of time to publish result cannot be
termed as a precedent.
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37. It is thus submitted by Mr. Dhar that the ratio of the decision of the Co-
ordinate Bench as passed in WP-1722(W) of 2018 as well as the orders passed
in the intra court appeal has got no binding effect preventing the commission
to hold further written examination in respect of those candidates who have
been eliminated wrongly on account of wrong evaluation of answers sheets in
the screening examination. In his next fold of submission Mr. Dhar further
argued that Clause 16 of the said Rules permits the Commission to hold
written test of all the eligible candidates. It is thus submitted by Mr. Dhar that
the word 'test' as mentioned in Clause 16 of the said Rules of 2010 should also
be considered as tests i.e. in plurality in terms of provisions of General Clauses
Act. In this regard Mr. Dhar places his reliance upon the reported decision of
State of Punjab and Ors. vs. Ram Singh Ex-constable reported in (1992) 4
SCC 54.
38. Drawing attention to page nos. 190, 191 and 195 of the comprehensive
affidavit as submitted by the Commission it is argued by Mr. Dhar that from
the copies of the orders as have been passed by the Hon'ble Supreme Court in
WP Civil Diary no.38860 of 2024 it would reveal that the Commission was not
prevented for holding the second written test on 01.09.2024 pursuant to the
aforementioned two notices under challenge since the subject matter of
litigation before the Hon'ble Supreme Court is restricted to the numbers of
vacancies in the recruitment process as has been initiated pursuant to the
advertisement dated 27.03.2010.
39. It is thus submitted by Mr. Dhar that the writ petitions challenging the
notices dated 05.08.2024 and 09.08.2024 may be dismissed considering the
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fact that the Commission had committed no irregularity in holding second
written examination of 73,978 numbers of candidates after detection of the
errors of evaluation of the answers sheets in the screening test and also
considering the larger public interest as involved in such recruitment process.
In this regard Mr. Dhar places his reliance upon the reported decisions of
Chairman, All India Railway Recruitment Board and Anr. vs. K. Shyam
Kumar and Ors. reported in (2010) 6 SCC 614.
40. Mr. Mitra, learned Senior Advocate appearing on behalf of the writ
petitioners in WPA 845 of 2025 submits before this Court that the Commission
being an authority under Article 12 of the Constitution is duty bound to correct
its mistake as soon as the same is detected. It is further submitted that the
mistake does not give any right to anyone to claim that such mistakes should
be allowed to be perpetuated.
41. It is further submitted by Mr. Mitra that the writ petitioners who have
challenged the aforementioned two notices dated 05.08.2024 and 09.08.2024
have practically acquiesced to the action of the Commission inasmuch as
immediately after publication of the said two notices under challenge the said
writ petitioners did not approach this Court challenging the legality, validity
and correctness of the said two notices. It is submitted by Mr. Mitra that on the
contrary the writ petitioners have allowed the Commission to hold the written
examination and even to hold personality test and subsequent thereto when
the said writ petitioners found them unsuccessful they have approached this
Court for ventilating their alleged grievance in the prerogative writ jurisdiction
of this Court.
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42. It is further submitted by Mr. Mitra, that the writ petitioners who have
challenged the aforementioned two notices have consciously suppressed that
they were unsuccessful either in the written test or in the personality test and
therefore the said writ petitioners have got no locus standi to file those writ
petitions challenging the said two notices.
43. In his next limb of submission Mr. Mitra further contends that none of
the parties to the instant writ petitions were parties before the Co-ordinate
Bench in WP-1722(W) of 2018 and MAT 907 of 2018 and therefore the orders
passed in WP-1722(W) of 2018 and MAT 907 of 2018 cannot be generalised
against the non-parties.
44. Placing his reliance upon the reported decision of Sk. Mohd. Rafique vs.
Managing Committee, Contai Rahamania High Madrasahh and Ors.
reported in (2020) 6 SCC 689 it is submitted by Mr. Mitra that the said
judgment was pronounced on 6th January, 2020 whereby and whereunder the
Hon'ble Supreme Court held Sections 8,9, and 12 of West Bengal Madrasah
Service Commission Act, 2008 (hereinafter referred to as the said Act of 2008),
to be valid and constitutional. It is submitted by Mr. Mitra that none of the
parties in WP- 1722(W) of 2018 and in MAT 907 of 2018 have brought to the
notice of the Courts that while passing the judgment and order dated
23.07.2018 by the Co-ordinate Bench and while passing the judgement and
order dated 04.02.2020 in MAT 907 of 2018 as well as the subsequent orders
dated 12.09.2023 and 13.06.2024, as passed by the Division Bench the
Commission was practically defunct in view of the judgement under challenge
in the reported decision of Sk. Mohd. Rafique (supra).
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45. It is submitted by Mr. Mitra that after 06.01.2020 the Commission
became functional in view of the pronouncement of the judgment in the case of
Sk. Mohd. Rafique (surpa) and thus there cannot be any justification to
disbelieve the contention of the Commission regarding subsequent detection of
error in evaluation of answer sheets of a substantial number of candidates'
OMR sheets in the screening test.
46. In course of his submission Mr. Mitra further draws attention of this
Court to the orders dated 23.07.2018 as passed by a Co-ordinate Bench of this
Court in WP-1722(W) of 2018 and the orders dated 04.02.2020, 12.09.2023
and 13.06.2024 as passed in MAT 907 of 2018 by a Division Bench of this
Court. It is submitted by Mr. Mitra that there was no dictum of this High Court
either in Single Bench or in the Division Bench in the earlier round of litigation
to overlook the mistake as has been noticed by the Commission.
47. 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 Single Bench
or by the 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 . Placing reliance upon the reported decision of
Smt. Muktakesi Dawn and Ors. vs. Haripada Mazumdar and Anr.
reported in AIR (1988) Cal 25 it is submitted by Mr. Mitra that the order
dated 13.06.2024 as passed in MAT 907 of 2018 is no-way connected with the
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merit of the said intra court appeal (MAT 907 of 2018) inasmuch as the said
order dated 13.06.2025 was passed by the Division Bench while disposing an
application for extension of time (CAN 20 of 2024) for the publication of the
result by the Commission.
48. Placing reliance upon the reported decision of Ranjan Kumar And ors.
vs. State of Bihar and Ors. reported in (2014) 16 SCC 187 it is submitted
by Mr. Mitra that since in the earlier round of litigation the writ petitioners of
WPA 845 of 2025 were not parties, no adverse order can be passed against the
writ petitioners in WPA 845 of 2025 by this High Court in the said earlier
round of litigations and in fact no such adverse orders have been passed. It is
thus submitted by Mr. Mitra that no logical deduction can be made regarding
invalidity of the candidatures of the 73,978 numbers of affected candidates on
account of wrong evaluation of the OMR sheets by the Commission since the
said 73,978 numbers of affected candidates were not parties in the earlier
round of litigations.
49. On being asked by this Court Mr. Mitra contended that the Commission
was very much justified for not filing any review petition before the Division
Bench since there was no error apparent on the face of the record in the
judgement and order dated 04.02.2020 as well as in subsequent two orders
dated 12.09.2020 and 13.06.2024 as passed in MAT 907 of 2018.
50. Drawing attention to the said Rules it is further argued by Mr. Mitra that
holding of written examination in two phases was not expressly prohibited by
the said Rules and that for the said reason none of the writ petitioners before
this Court have ever objected regarding holding of screening test on different
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question papers in three shifts. It is further submitted that on comparative
study of the question papers of the written examination as held on 29.05.2011
and 01.09.2024 it would reveal that 'level playing field and the process of
normalization was duly maintained by the Commission.
51. Placing reliance upon the reported decision of Chandigarh
Administration and Ors. vs. Naurang Sigh and Ors. reported in (1997) 4
SCC 177 it is argued by Mr. Mitra that it would not be proper for this Court by
allowing the Commission to continue with the mistake as detected by it
inasmuch as the writ petitioners who were challenging the notices dated
05.308.2024 and 09.08.2024 would otherwise enjoy the benefit dehors of their
right not conferred by any statute. It is thus submitted by Mr. Mitra that it is a
fit case for dismissal of the writ petitions challenging the aforementioned two
notices dated 05.08.2024 and 09.08.2024 and for allowing the writ petition
being WPA 845 of 2025 in terms of the prayers made therein.
52. 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 were also successful in the personality test.
53. In course of his argument Mr. Bhattacharya, learned Senior Advocate
has filed the server copy of the order dated 13.05.2024 as passed in Special
Leave Petition (Civil Diary) no. 19069 of 2024 which have been filed assailing
the order dated 12.09.2023 by some unsuccessful candidates of the written
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examination dated 29.05.2011 before the Hon'ble Supreme Court. Mr.
Bhattacharya also files a photocopy of the said special leave petition as filed
before the Supreme Court along with a photocopy of the application seeking
permission to file special leave petition which are taken on record.
54. It is submitted by Mr. Bhattacharya that from the said order dated
13.05.2024 as passed by the Hon'ble Supreme Court it would reveal that the
SLP challenging the order dated 12.09.2023 as passed in MAT 907 of 2018 was
dismissed.
55. It is further argued by Mr. Bhattacharya that neither the Division Bench
while passing the order dated 12.09.2023 nor the Hon'ble Supreme Court while
passing the order dated 13.05.2024 had any occasion to consider the
justifiability of holding second written examination by the Commission. It is
further submitted by Mr. Bhattacharya that the Division Bench while passing
the order dated 13.06.2024 had also not considered the said aspect.
56. It is thus submitted by Mr. Bhattacharya that for the aforesaid reason by
no stretch of imagination it may be held that the Division Bench while passing
the Order dated 12.09.2023 and 13.06.2024 either expressly or impliedly
prohibited the Commission to hold further written examination.
57. In his next limb of submission Mr. Bhattacharya draws attention of this
Court to Clauses 7 and 8 of the said Rules. It is submitted by Mr.
Bhattacharya that Clause 7 of the said Rules permits the Commission to hold
selection process State wise/ Region wise/ Area wise and thus there cannot be
any difficulty in holding the same examination in two phases. It is further
argued by Mr. Bahttacharya that in the event the Commission is directed to
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continue with the mistake as detected by it though at a very belated stage that
would tantamount to violation of the Constitutional mandate as enshrined in
Articles 14 and 16 of the Constitution. Drawing attention to Clauses 15 and 16
of the said Rules it is further argued by Mr. Bhattacharya that in terms of the
said Rules the Commission held and conducted written examination of all
eligible candidates and thus such action of the Commission cannot be
questioned since the same was done following due procedure.
58. It is further argued by Mr. Bhattacharya that the theory of normalization
has got no manner of application in the written examinations as held and
conducted by the Commission inasmuch as the Commission had conducted
the said two written tests clearly on the basis of the said Rules maintaining
same level and in absence of any specific allegation regarding any mala fide or
bias against the Commission, there cannot be any scope to interfere with the
conscious effort made by the Commission. In this regard Mr. Bhattacharya
places his reliance upon the reported decisions namely:- Vijay Kumar
Sharma and Ors. vs. Chairman, School Service Commission and Ors.
reported in (2001) 4 SCC 289, Vijay Syal and Anr vs. State of Punjab
reported in (2003) 9 SCC 401 and Mahinder Kumar and Ors. vs. High
Court of Madhya Pradesh reported in (2013) 11 SCC 87.
59. Mr. Sabyasachi Chatterjee, learned advocate appearing on behalf of the
writ petitioners in WPA 29253 of 2024 at the very outset submits before this
Court that the writ petitioners who are his clients appeared in the written
examination as held on 01.09.2024 and they are found to be successful in
such written examination as well as in the personality test. It is submitted by
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Mr. Chatterjee that the writ petitioners who are challenging the action of the
Commission pursuant to the notices dated 05.08.2024 and 09.08.2024 have
not come before this Court with clean hands.
60. It is further contended by Mr. Chatterjee that immediately after
publication of the said two notices dated 05.08.2024 and 09.08.2024 the said
writ petitioners have not approached this High Court by filing any writ petition.
It is further contended by Mr. Chatterjee that the said writ petitioners waited
till publication of the combined result of the written examinations as held on
29.05.2011 and 01.09.2024 and even till publication of the final merit list after
the personality test as held between 18.09.2024 to 30.09.2024 and thus
finding them unsuccessful in such examinations approached this High Court
by filing multiple writ applications. It is thus submitted by Mr. Chatterjee that
those writ petitioners were not at all vigilant and the said writ petitioners have
miserably failed to justify their latches and negligence in approaching this
Court in appropriate time i.e. immediately after publication of the said two
notifications under challenge.
61. Drawing attention to page no.49 of the comprehensive affidavit-in-
opposition as filed by the Commission being a copy of an advertisement dated
27.03.2010 as published by the Commission in connection with the said test it
is argued by Mr. Chatterjee that in the said advertisement it has been
specifically mentioned that the marks obtained in the preliminary screening
examination would not be added to the marks obtained in final written
examination/tests by the qualified clerk and Group D candidates.
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62. It is argued by Mr. Chatterjee that the Commission consciously used the
word 'tests' in such advertisement which clearly indicates that the Commission
in such advertisement had categorically mentioned that final written
examination might be held more than once, which is why, plural form of 'test'
has been used in such advertisement. It is thus submitted by Mr. Chatterjee
that in view of such the writ petitioners who are challenging the
aforementioned two notices cannot question the authority of the Commission
in holding the second written examination on 01.09.2024.
63. In course of his submission Mr. Chatterjee also draws attention of this
Court to the order dated 23.07.2018 as passed in the case of Soumen
Malakar (supra) as well as to the orders dated 04.02.2020, 12.02.2023 and
13.06.2024 as passed in the intra court appeal being MAT 907 of 2018 in the
earlier round of litigation. It is submitted by Mr. Chatterjee that while passing
the said four orders a Co-ordinate Bench of this Court and the Hon'ble Division
Bench of this Court put much stress on the completion of the recruitment
process as initiated in the year 2010 and thus neither the said Single Bench
nor the said Division Bench had any opportunity to consider the fate of 73,978
numbers of candidates who have been wrongly eliminated by the Commission
in the screening test on account of technical defect that is evaluation of their
OMR sheets with wrong answer key. Drawing attention to the copy of the
interlocutory application being CAN 20 of 2024 as filed in MAT 907 of 2018 it is
submitted by Mr. Chatterjee that considering the plight of the candidates who
have been wrongly eliminated in the screening test the Commission
approached the Division Bench of this Court for extension of time to publish
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the result however, the prayer for extension of time was turned down by the
Division Bench by its order dated 13.06.2024.
64. It is submitted by Mr. Chatterjee that while disposing CAN 20 of 2024
the Division Bench though declined to grant further time to the Commission
but did not expressly prohibit the Commission to hold second written
examination in respect of 73,978 successful candidates who appeared in the
written test as held on 01.09.2024.
65. Drawing attention to Articles 14 and 16 of the Constitution it is
submitted by Mr. Chatterjee that the action of the Commission is thus required
to be scrutinized from the angles of the said constitutional provisions in terms
of the different orders as passed by the Single Bench and/or Division Bench
and/or Hon'ble Supreme Court in the earlier round of litigation.
66. Placing his reliance upon the reported decision of State of Assam and
Ors. vs. Arubindo Rabha and Ors. reported in (25) SSC Online SC 523. It is
argued by Mr. Chatterjee that from the factual scenario as involved in the
instant writ petitions there cannot be any difficulty in holding that the decision
of the Commission for holding the second examination on 01.09.2024 is
neither unreasonable nor contrary to the doctrine of proportionality. It is
further argued by Mr. Chatterjee that in this case the Commission has made a
perfect balance by opting the right option from the available options and
therefore the action of the Commission may be held to have passed the test of
proportionality.
67. It is further submitted by Mr. Chatterjee that the Commission has rightly
noticed that 73,978 number of candidates are not tainted and on account of a
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mistake committed by the Commission they have to suffer and for the said
reason the Commission rightly allowed those candidates to appear in the
second written examination maintaining the balance of proportionality and in
terms of the provisions of Article 14 read with Article 16 of the Constitution of
India.
68. It is further submitted by Mr. Chatterjee that since the Commission has
taken a fair and reasonable decision in the recruitment process under
challenge, by no stretch of imagination it can be said that the decision making
process of the Commission was either perverse or vitiated on account of
consideration of some extraneous material and thus the decision of the
Commission ought not to have interfered in a judicial review.
69. Placing reliance upon the reported decision of Rajesh Kumar and Ors.
vs. State of Bihar and Ors. with Abhishek Kumar and Ors. vs. State of
Bihar and Ors. reported in (2013) 4 SCC 690 it is argued by Mr. Chatterjee
that the Commission had no option to cancel the written examination as held
on 29.05.2011 on account of detection of the error in evaluating the answers
sheets of 73,978 candidates with wrong answer key in the screening test in
view of the orders passed in the case of Soumen Malakar (supra) as well as in
view of the orders passed in MAT 907 of 2018 and therefore the Commission
had to adopt the second available option for holding second written
examination maintaining same level field. It is thus submitted by Mr.
Chatterjee that in such factual scenario issuance of the notices under
challenge by the Commission and their subsequent actions ought not be
disturbed.
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70. In course of his reply Mr. Majumdar, learned senior advocate appearing
on behalf of the writ petitioners in WPA 24588 of 2024, WPA 25438 of 2024
and WPA 21918 of 2024 submits before this Court that the Doctrine of
Probability as canvassed by Mr. Chatterjee has got no manner of application in
the instant lis. It is further submitted by Mr. Majumder that the goal which
cannot be achieved by the Commission before the Division Bench in MAT 907
of 2018 cannot be permitted to be achieved at the behest of others.
71. It is further submitted by Mr. Majumdar that this Court while disposing
of the instant writ petition cannot review the judgement of the Division Bench
as passed in MAT 907 of 2018 which would otherwise lead to judicial anarchy.
It is further submitted by Mr. Majumdar that the order dated 23.07.2018 as
passed in the case of Soumen Malakar (supra) and the orders as passed in
MAT 907 of 2018 are binding upon the Commission and therefore there is
hardly any scope to avoid those orders by taking the shield of the proposition
ratio decidendi.
72. Mr. Bhattacharya appearing on behalf of the writ petitioners in WPA
26090 of 2024 in his reply submitted that the Commission had miserably failed
to justify as to why they hold second written examination especially when the
Division Bench in MAT 907 of 2018 expressly rejected the Commission's prayer
for holding any further examination.
73. Mr. Samim, learned advocate appearing on behalf of the writ petitioners
in WPA 26237 of 2024 in reply submits before this Court that the Division
Bench in MAT 907 of 2018 rejected the Commission's interlocutory application
being CAN 20 of 2024 ignoring the disclosure of alleged technical flaws.
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74. Mr. Ahmed, learned advocate appearing on behalf of the writ petitioners
in WPA 9578 of 2024 in his reply contended that the decision making process
of the Commission may be looked into in accordance with law in this judicial
review.
75. This Court has meticulously perused the entire materials as placed
before this Court. This Court has given its due consideration over the
submissions of the learned advocates for the contending parties.
76. For effective adjudication of the instant writ petitions if I look to the said
Act of 2008 it reveals that initially under Section 8 of the said Act of 2008 the
Commission was empowered to select and recommend persons to be appointed
to the vacant post of teachers in accordance with the provisions of the said act.
With the enactment of Amendment Act of XXXIII of 2008 the Commission was
empowered to select and recommend non-teaching staff other than teachers,
including librarians, clerks and other group D staff.
77. At this juncture this Court proposes to look to some of the Clauses of the
said Rules of 2010 which are quoted hereinbelow in verbatim:-
"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
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.
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(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/Area 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-in-charge, 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 number 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
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
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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."
78. At this juncture I propose to look to the reported decisions as cited from
the Bar.
i. In the reported case of Aditi (supra) the Hon'ble Supreme Court
while dealing with the subject of holding of NEET/PG 2025
examination in two shifts came to a finding that holding
examination in two shifts would inevitably enable arbitrariness
and would not entail at par evaluation.
ii. In the reported decision of Reliance Energy Ltd. (supra) it has
been held by the Hon'ble Supreme Court that 'level playing field' is
an important concept under Article 19(1) (g) of the Constitution
since the said doctrine provides space within which equally placed
competitors are allowed to bid so as to sub-serve the large public
interest. It has been held further that the decision or acts which
result in unequal and discretionary treatment would violate the
doctrine of 'level playing field' as embodied in Article 19 (1) (g) and
time has come, therefore, to show Article 14 which refers to the
principle of equality should not be read as a standalone item but it
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should be read in conjoint with Article 21 which embodies several
aspects of life.
iii. In the reported decision of Manohar Lal (Dead) by Lrs. (surpa) it
has been held by the Hon'ble Supreme Court that an order passed
by an authority in breach, even an interim order is a nullity and of
no consequence and the Court may bring back the parties to the
same position.
iv. In the reported decision of Mriganka Mondal (surpra) it has been
held that even an unsuccessful candidate has right to challenge a
selection process which is per se illegal and where illegalities are
glaring and in such cases estoppels, waiver and acquiescence may
not have any application.
v. In the case of Arun Kumar Aggarwal (surpra) the Hon'ble
Supreme Court while interpreting the term obiter dicta came to the
finding that it is the mere observation of the Judge on a legal
question suggested by a case before him but not arising in such a
manner as to require decision by him.
vi. In the case of Utility Users' Welfare Association and Ors.
(supra) the Hon'ble Supreme Court while dealing with the
proposition of 'ratio decidendi' held that ratio decidendi is what is
absolutely necessary for the decision of the case. It has been held
further that 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 inversed i.e. to remove from the text of the judgement as if it did
40
2025:CHC-AS:1314
not exist. It has been held further that in the event the conclusion
of the case would still have been the same without examining the
proposition then it would be recorded as the ratio decidendi of the
said case. This test has been followed to imply that the ratio
decidendi is what is absolutely necessary for the decision of the
case.
vii. In the case of in the case of Davinder Singh and Ors.(surpa) the
Hon'ble Supreme Court again dealing with the subject of ratio
decidendi expressed that a judgement is the authority for the
proposition of which it decides and not what can logically be
deduced therefrom. The observation of the Court must be read in
the context in which they appear to have been stated. The
judgement of the Court is not to be construed as statute.
viii. In the decision of Dadu Dayalu Mahasabha, Jaipur (Trust)
(supra) it has been held that the observation made by the superior
court is not binding rather what would be binding is the ratio of
decision.
ix. The same view was taken by the Hon'ble Supreme Court in the
case of Bussa Overseas and Properties Private Limited (surpra)
while dealing with the proposition of ratio deci dendi.
x. In the case of Ranbir Alias Rana (supra) the same view has been
taken by the Hon'ble Supreme Court as in the case of Dadu
Dayalu(supra).
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xi. In the reported decision of Vikash Pratap Singh (supra) it has
been held that if in a selection process irregularity in evaluation is
detected, there is no illegality on the part of selecting authority to
correct the same by including the deserving candidates and
eliminating the undeserving ones.
xii. In the reported decision of Dinesh Kumar Kashyap (supra) it has
also been observed by the Hon'ble Supreme Court placing reliance
upon the reported decision of Sankarshan Dash reported in
(1991) 3 SCC 147 that a successful candidate does not acquire an
indefeasible right to be appointed and thus the State has no
obligation to fill up all or any of the vacancies. It has been held
further, that it does not mean that the State has licence to act in
an arbitrary manner.
xiii. In the reported decision of Ajithkumar P. (supra) it has been
observed by the Hon'ble Supreme Court that there is justification
for holding a screening test when numbers of examinees are
unmanageably large.
xiv. In the reported decision of Duddilla Srinivasa Sharma (supra)
the same view was taken as in the Ajithkumar (supra).
xv. In the reported decision of Barakh Uppataka (supra) the Hon'ble
Supreme Court made a distinction between the precedents which
is a ratio decidendi is thus distinguishable from an interim order
which does not finally and conclusively decides any issue.
42
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xvi. In the reported decision of Ram Singh (supra) it has been held
that in a disciplinary proceeding 'act of misconduct' includes 'acts'
in view of provisions of the General Clauses Act.
xvii. In the reported decision of K. Shyam Kumar and Ors.(supra) it
has been held that a decision maker can always rely upon
subsequent materials to support the decision already taken when
larger public interest is involved. It has been held further that
there is no illegality and/or irregularity in placing reliance upon
the subsequent report to sustain the cancellation of the
examination conducted where there was serious allegation of mass
copying.
xviii. In the reported decision of Sk. Mohammad Rafique (supra) the
Hon'ble Supreme Court found that Sections 8, 10, 11 and 12 of the
West Bengal Madrasah Service Commission Act, 2008 are valid
and constitutional.
xix. In the reported decision of Smt. Muktakesi Dawn(supra) it has
been held that decision arrived at while disposing an application
for temporary injunction cannot take the place of the findings in
the final decision of the suit.
xx. In the reported decision of Ranjan Kumar (supra) it has been held
that if a person who is likely to suffer from the order of the court
and has not been impleaded as party has a right to ignore the said
order as if the said order has been passed in violation of principle
of natural justice.
43
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xxi. In the reported decision of Naurang Singh (supra) it has been
noticed by the Hon'ble Supreme Court 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 and/or wrong.
xxii. In the reported decision of Vijay Kumar Sharma (supra) the
Hon'ble Supreme Court noticed that the appellants before it were
empanelled and there are vacancies for appointing the appellants.
Accordingly the Hon'ble Supreme Court directed the authority for
giving appointment to the appellants since it found no justification
on the part of the said authority for not appointing the appellants.
xxiii. In the reported decision of Jharna Sarkar the Division Bench of
this Court 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.
xxiv. In the reported decision of Vijay Syal (supra) it was held by the
Hon'ble Supreme Court that in absence of any specific allegation of
any mala fide or bias against the board constituted for selection
there cannot be any justification to come to a conclusion that there
was a conscious effort made on the part of the board to bring the
some candidates within the selection zone.
xxv. In the reported decision of Vijay Syal reported in (2003) 9 SCC
401 it was held by the Hon'ble Supreme Court that in absence of
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any proof of inherent vice in the selection process and/or specific
allegation or mala fide or bias there cannot be any justification to
interfere with the selection process.
xxvi. In the reported decision of Mahinder Kumar And Ors (supra) the
Hon'ble Supreme Court held that where 3000 candidates appeared
for a written examination and answer sheets were evaluated by
different District Judges, it cannot be held that there was every
scope for variation in the assessment of answers and thus a fair
procedure to normalise the marks of the candidates was not
adopted.
xxvii. In the reported decision of Arubindo Rabha (supra) the Hon'ble
Supreme Court held that the unreasonableness test looks, not
necessarily at the merits of the decision, but the way decision was
made; the available courses of action of the deciding authority are
scrutinized to ascertain what a reasonable man would do. On the
other hand the proportionality test is more wide reaching in its
approach, closely analysing the course of action vis-à-vis the
situation requiring a remedy.
xxviii. In the reported decision of Rajesh Kumar (supra) the Hon'ble
Supreme Court held that in the event it is detected that the key
which was used for evaluating the answer sheets was itself
defective, it would affect the result of the entire examination qua
every candidate whether or not he was a party to the proceeding. It
also goes without saying that if the result was vitiated by the
45
2025:CHC-AS:1314
application of wrong key, any appointment made on the basis
thereof would also be rendered unsustainable. The High Court
was, in that situation entitled to mould the relief preferred for in
the writ petition.
79. In the backdrop of the aforementioned factual scenarios, the
aforementioned relevant rules and the propositions of law as enunciated in the
aforementioned reported decisions as cited from the Bar, I consider that in
order to arrive at a logical conclusion of the instant writ petitions the
judgement and order dated 23.07.2018 as passed in case of Soumen Malakar
(supra) [(WP-1772(W) of 2018)] is required to be looked into. The relevant
portion of the judgement and order dated 23.07.2018 is quoted hereinbelow in
verbatim:-
"........Accordingly, the present writ petition is disposed of after recording
that the writ petitioner did appear in the examination of 1st State Level
Selection Test (NT) Group-D on May 29, 2011 and not March 27, 2011 as
submitted by both the learned advocate for the writ petitioner and the Mr.
Dewan, learned counsel for the Commission and by directing the
respondent Nos.2 and 3 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. No instruction will be required from the State of West
Bengal for completing this exercise. The entire exercise as aforesaid shall
be completed within a period of fourteen days from the date of
communication of this order, if not already done and a logical effect shall
be given to the exercise within a further period of seven days......"
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80. It thus appears to this Court that the Co-ordinate Bench while disposing
the case of Soumen Malakar(supra) directed the Commission to prepare the
panel if the writ petitioner Soumen Malakar is qualified. It is pertinent to
mention herein that the said test of 2010 is an examination for a recruitment
process and therefore in order to ascertain that the said Soumen Malakar is
successful or not, the Commission had got no other alternative but to publish
the entire result of the written examination as held on 29.05.2011.
81. Undisputedly challenging the order and judgement dated 23.07.2018 as
passed in the case of Soumen Malakar(supra) the Commission has preferred
an intra court appeal being MAT 907 of 2018 which came to be disposed of by
a Division Bench of this Court by its judgement and order dated 04.02.2020.
The relevant portions of the judgement and order dated 04.02.2020 as passed
in MAT 907 of 2018 are also required to be perused and thus are also quoted
below in verbatim-
"........In the supplementary affidavit the appellant has foregone all other
grounds of challenge initially made in the instant appeal and sought for
extension of time to complete such exercise in terms of the impugned order.
According to the appellant, 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 learned Advocate appearing for the respondent no. 1, however,
did not oppose such prayer and consented for extension of time to
complete the exercise as directed by the Single Bench.
In view of the subsequent stand now taken by the appellant, we do
not delve to go deep into the legality and infirmity of the impugned order.
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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.
In view of the above the appeal and application are disposed of.
There will be no order as to costs."
82. It thus appears to this Court that before the Division Bench in the said
intra court appeal the Commission had consciously foregone the grounds of
appeal except the ground that the time limit as fixed by the Co-ordinate Bench
in the case of Soumen Malakar (supra) is insufficient. Considering the
predicament of the Commission the said appellate court while upholding the
order dated 23.07.2018 modified the time limit as fixed by the Co-ordinate
Bench within six months from date.
83. Subsequently, the Commission and several non-parties to the said
appeal approached the Division Bench in MAT 907 of 2018 praying for
modification of the final order dated 04.02.2020 as well as for impleading them
party in the said application. The Hon'ble Division Bench by its order dated
12.09.2023 held thus:-
".......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
48
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of time having filed by the appellants is pending, which, in our opinion,
does not confers 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 4th February 2022 by 6 months from date..........."
84. It thus appears to this Court that by the said order dated 12.09.2023 the
Hon'ble Division Bench in MAT 907 of 2018 while extending further six months
observed that as on the said day no materials have been placed before the said
Division Bench regarding alleged illegalities and irregularities as have been
canvassed on behalf of the Commission in the instant writ petitions.
85. On 13.06.2024 in MAT 907 of 2018 another order came to be passed on
an interlocutory application being CAN 20 of 2024 as filed by the Commission.
The said interlocutory application being CAN 20 of 2024 was with the following
caption:-"An application for modification and/or extension of time as prescribed
in the order dated 12.09.2023 passed by the ......". This Court considers that
some relevant paragraphs of CAN 20 of 2024 are required to be looked into and
those are also reproduced below:-
"........................................................................................................
3. The Appellant state, that, on 12 September, 2023, during the pendency
of such applications, they had already taken a policy decision to conduct
fresh written examination of a total of 1,01,064 candidates i.e. 74, 618
candidates who had already appeared in the written examination of Group
D held on 29 May 2011. Copy of the order dated 12 September 2023
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passed by the Appellants is annexed hereto and marked with letter
"____________".
4..............
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 the hearing, if necessary.
ii. .........
iii. .........
iv. The list of 1,01,064 candidates eligible for appearing at written
examination of Group-D has already been prepared.
v. The Appellant are in the process of identification of centers, fixing
the date of examination and issuance of admit card."
86. The Hon'ble Division Bench while disposing the CAN 20 of 2024
expressed the following view:-
"17.................................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.
18.........................
19.........
20.We, therefore, impose a cost assessed at Rs.2,00,000/- (Rs. Two Lakhs
only) to be deposited by the appellant with the State Legal Services
Authority within fifteen days from date."
87. Since it is the contention of Mr. Majumdar, Mr. Banerjee, Mr.
Bhattacharya, Mr. Firdous Samim and Mr. Samim Ahmed, learned advocates
appearing on behalf of the petitioners in WPA 24588 of 2024,21918of 2024,
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24781 of 2024, 25438 of 2024, 26090 of 2024, 26237of 2024, 26792 of 2024,
9578 of 2025 that in view of the said four orders dated 23.07.2018,
04.02.2020, 12.09.2023 and 13.06.2024 as passed by the Co-ordinate Bench
and the Hon'ble Division Bench of this Court respectively, the Commission was
permitted to conduct any further examination and therefore the notices dated
05.08.2024 and 09.08.2024 are bad in law as well as their subsequent actions
on the basis of said two notices are required to be quashed and since on the
contrary it has been contended by Mr. Dhar appearing for the Commission, Mr.
Chatterjee in WPA 29253 of 2024, Mr. Mitra in WPA 845 of 2025 and Mr.
Bhattacharya in WPA 1436 of 2025 that the aforementioned four orders never
restricted the Commission to hold the second written examination, the moot
question which arises for consideration before this Court is whether the
Commission is at all justified in issuing the two notices under challenge as well
as in holding the written examination on 01.09.2024 despite passing the
aforementioned orders by the Co-ordinate Bench as well as by the Division
Bench.
88. For the cost of repetition, it is once again pertinent to mention herein
that in course of their respective arguments Mr Majumdar, Mr. Banerjee, Mr.
Bhattacharya, Mr. Samim and Mr. Ahmed categorically contended that since
the Division Bench in the aforementioned orders prohibited the Commission
from holding any fresh written examination in respect of the said test, the
publication of the aforesaid two notifications under challenge cannot be
permitted to sustain in the eye of law and the said notices are per se illegal and
issuance of the same tantamount to violation of directions as passed by the
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Hon'ble Division Bench. On the contrary it is the consistent stand of Mr. Dhar,
Mr. Chatterjee, Mr. Bhattacharya and Mr. Mitra that the aforementioned three
orders as passed by the Hon'ble Division Bench in MAT 907 of 2018 are merely
obiter and further holding of second written examination on 01.09.2024
pursuant to the aforementioned two notices under challenge were never the
subject matter in the said intra court appeal and therefore was not a ratio
decidendi in the said appeal since the factum of subsequent detection of error
in the evaluation of the answer sheets of the preliminary written examination
thereby depriving a large number of genuine successful candidates was never
placed before the Division Bench.
89. In order to assess whether the Commission and the writ petitioners who
are supporting the stand of the Commission are at all justified this Court once
again proposes to look to the relevant portion of the order dated 12.09.2023 as
passed by the Division Bench in MAT 907 of 2018. It appears from the order
dated 12.09.2023 that before the Division Bench on 12.09.2023 on the part of
the Commission the plea of certain illegalities and irregularities have been
placed however, the Hon'ble Division Bench did not reopen the issues as
involved in the said appeal in view of the fact as on 12.09.2023 no substantive
application was filed by the Commission.
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
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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.
91. Materials have been placed before this Court that challenging the order
dated 12.09.2023 as passed in MAT 907 of 2018 the Commission preferred a
SLP before the Supreme Court being SLP (Civil Diary) no.19069 of 2024 which
was however dismissed by the Hon'ble Supreme Court by its order dated
13.05.2024 declining to interfere with the impugned order dated 12.09.2023.
92. No materials have been placed before this Court challenging the order
dated 13.06.2024 as passed by the Division Bench any SLP has been preferred.
Such being the position this Court has got no hesitation to hold that the orders
dated 12.09.2023 and 13.06.2024 as passed in MAT 907 of 2018 have reached
its finality.
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.
95. Since it has been strenuously argued on behalf of the commission and
on behalf of the writ petitioners who are supporting the stand of the
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Commission that holding of written examination for 73,978 numbers ofalleged
eligible candidates was not the subject matter in the case of Soumen Malakar
(supra) as also in MAT907 of 2018 therefore applying the principle of ratio
decidendi, the observation as made by the Co-ordinate Bench as well as by the
Division Bench in the aforementioned two proceedings noway binds the
Commission for holding the second written examination pursuant to the two
notices under challenge, this Court will make an endeavour to come to a logical
conclusion as to how far the said arguments are tenable.
96. On perusal of the order dated 23.07.2018 as passed by a coordinate
bench of this case in the case of Soumen Malakar (supra) it reveals that in
the said writ petition the main grievance of the writ petitioner was non-
publication of the result of the written examination as held on 29.05.2011
wherein the writ petitioner to the said writ petition participated. By virtue of
the said order dated 23.07.2018 the said coordinate bench while disposing the
said writ petition directed the commission to intimate the result to the writ
petitioner within a stipulate period along with some consequential reliefs.
97. At this juncture if I again look to the order dated 04.02.2020 as passed
by the Division Bench in the intra court appeal being MAT 907 of 2018, it
would reveal that by the said order dated 04.02.2020 the said Court while
affirming the order of the coordinate bench merely modified the time limit for
publication of result. On perusal of the subsequent two orders dated
12.09.2023 and 13.06.2024 as passed in MAT 907 of 2018 it reveals that the
Hon'ble Division Bench of this Court however again extended the time limit for
publication of result of written examination as held on 29.05.2011 obviously
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with some remarks and/or findings and/or observations against the
commission which have been elaborately discussed in the foregoing
paragraphs.
98. In order to decide whether the said remarks and/or findings and/or
observations against the commission as made by the Hon'ble Division Bench is
ratio decidendi this Court proposes to look to the reported decisions of Utility
Users' Welfare Association( supra) wherein the Hon'ble Supreme Court held
thus :
"114. In order to test whether a particular proposition of law is to be
treated as the ratio deci dendi 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 deci
dendi of the case. This test has been followed to imply that the ratio deci
dendi is what is absolutely necessary for the decision of the case. "In order
that an opinion may have the weight of a precedent", according to John
Chipman Grey 39, "it must be an opinion, the formation of which, is
necessary for the decision of a particular case".
99. In the reported decision of Davinder Singh(supra) while dealing with the
issue of ratio decidnedi the Hon'ble Supreme held thus :
"18 . A judgment, as is well known, is the authority for the proposition
which it decides and not what can logically be deduced therefrom. This
Court in Union of India v. Major Bahadur Singh has observed: (SCC p. 373,
para
"9. The courts should not place reliance on decisions without discussing as
to how the factual situation fits in with the fact situation of the decision on
which reliance is placed. Observations of the courts are neither to be read
as Euclid's theorems nor as provisions of the statute and that too taken out
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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 discussion is meant to explain and not to define.
Judges interpret statutes, they do not interpret judgments. They interpret
words of statutes; their words are not to be interpreted as statutes."
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.
101. In view of such, this Court is of the considered view that the remarks
and/or the findings and/or the observations against the commission as made
by the Hon'ble Division Bench in MAT 907 of 2018 in its orders dated
12.09.2023 and 13.06.2024 were never ratio decidendi in the said intra court
appeal as well in the case of Soumen Malakar(supra).
102. In view of such, this Court is of further considered view that the said
remarks and/or the findings and/or the observations of the Hon'ble Division
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Bench cannot put any fetter upon the Commission in taking decision to hold
second written examination in respect of the aforementioned 73,978 numbers
of candidates.
103. At this juncture this Court proposes to look to the action of the
Commission while issuing the aforementioned two notices dated 05.08.2024
and 09.08.2024 and the subsequent actions taken by it from the angle of
"Doctrine of Legitimate Expectation" though the learned advocates for the
contending parties to the instant writ petitions have made no deliberation on
such doctrine.
104. In doing so this Court shall make an endeavour to come to a logical
finding as to whether the writ petitioners in WPA 24588 of 2024, WPA 21918 of
2024, WPA 24781 of 2024, WPA 25438 of 2024, WPA 26090 of 2024, WPA
26237 of 2024, WPA 26792 of 2024, WPA 9578 of 2025 and WPA 2304 of 2024
(herein after referred to as the ' said nine writ petitions' in short) who are
challenging the aforementioned two notices have at all got any right to
challenge the subsequent aforementioned actions of the Commission.
105. In order to understand the "Doctrine of Legitimate Expectation" this
Court proposes to look to a Constitutional Bench decision of the Hon'ble
Supreme Court in the case of Sivanandan C.T and Ors. vs. High Court of
Kerala and Ors. reported in (2024) 3 SCC 799, the relevant portions of which
are quoted hereinbelow in verbatim:-
"............(a) Doctrine of legitimate expectation under common law
18. The basis of the doctrine of legitimate expectation in public law is founded on
the principles of fairness and non-arbitrariness in Government dealings with
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individuals. It recognises that a public authority's promise or past conduct will
give rise to a legitimate expectation. The doctrine is premised on the notion that
public authorities, while performing their public duties, ought to honour their
promises or past practices. The legitimacy of an expectation can be inferred if it
is rooted in law, custom, or established procedure.
............................................................................................................
23. The doctrine of legitimate expectation emerged as a common law doctrine to guarantee procedural fairness and propriety in administrative actions. Legitimate expectation was developed by the courts to require a degree of procedural fairness by public authorities in their dealings with individuals. Denial of an assured benefit or advantage was accepted as a ground to challenge the decision of a public authority.
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25. In Union of India v. Hindustan Development Corpn. reported in (1993) 3 SCC 499 this Court clarified the contours of the doctrine of legitimate expectation in the following terms:
(i) legitimate expectation arises based on a representation or past conduct of a public authority:
(ii) legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular or natural sequence:
(iii) legitimate expectation provides locus standi to a claimant for judicial review:
(iv) the doctrine is mostly confined to a right of a fair hearing before a decision and does not give scope to claim relief straightaway;
(v) the public authority should justify the denial of a person's legitimate expectation by resorting to overriding public interest; and
(vi) the courts cannot interfere with the decision of an authority taken by way of policy or public interest unless such decision amounts to an abuse of power.
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27.A claim based on the doctrine of procedural legitimate expectation arises where a claimant expects the public authority to follow a particular procedure before taking a decision. This is in contradistinction to the doctrine of substantive legitimate expectation where a claimant expects conferral of a substantive benefit based on the existing promise or practice of the public authority. The doctrine of substantive legitimate expectation has now been accepted as an integral part of both the common law as well as Indian jurisprudence.
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34. This Court has consistently held that a legitimate expectation must always yield to the larger public interest. In Sethi Auto Service Station v. DDA21, this Court clarified that legitimate expectation will not be applicable where the decision of the public authority is based on a public policy or is in the public interest, unless the action amounts to an abuse of power. The doctrine of legitimate expectation cannot be invoked to fetter valid exercise of administrative discretion. 22 In P. Suseela v. UGC23, the claimants challenged the UGC Regulations which made it mandatory for candidates seeking to be appointed to the post of Lecturer or Assistant Professor to qualify at the NET examination. The Court held that the legitimate expectation of the claimants must yield to the larger public interest having highly qualified Assistant Professors and Lecturers to teach in educational institutions governed by the UGC.
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38. The doctrine of legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it. The public authority has the discretion to exercise the full range of choices available within its executive power. The public authority often has to take into consideration diverse factors, concerns, and interests before arriving at a particular policy decision. The courts are generally cautious in interfering with a bona fide decision of public authorities which denies a legitimate expectation provided such a decision is taken in the larger public interest. Thus, public interest 59 2025:CHC-AS:1314 serves as a limitation on the application of the doctrine of legitimate expectation. Courts have to determine whether the public interest is compelling and sufficient to outweigh the legitimate expectation of the claimant. While performing a balancing exercise, courts have to often grapple with the issues of burden and standard of proof required to dislodge the claim of legitimate expectation.
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46. From the above discussion, it is evident that the doctrine of substantive legitimate expectation is entrenched in Indian administrative law subject to the limitations on its applicability in given factual situations. The development of Indian jurisprudence is keeping in line with the developments in the common law. The doctrine of substantive legitimate expectation can be successfully invoked by individuals to claim substantive benefits or entitlements based on an existing promise or practice of a public authority. However, it is important to clarify that the doctrine of legitimate expectation cannot serve as an independent basis for judicial review of decisions taken by public authorities. Such a limitation is now well recognised in Indian jurisprudence considering the fact that a legitimate expectation is not a legal right. 33 It is merely an expectation to avail a benefit or relief based on an existing promise or practice. Although the decision by a public authority to deny legitimate expectation may be termed as arbitrary, unfair, or abuse of power, the validity of the decision itself can only be questioned on established principles of equality and non- arbitrariness under Article 14. In a nutshell, an individual who claims a benefit or entitlement based on the doctrine of legitimate expectation has to establish:
(i) the legitimacy of the expectation; and (ii) that the denial of the legitimate expectation led to the violation of Article 14.
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57. The following are our conclusions in view of the above discussions:
57.1. The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being termed as arbitrary and violative of Article 14:60
2025:CHC-AS:1314 57.2. An individual who claims a benefit or entitlement based on the doctrine of substantive legitimate expectation has to establish the following: (i) the legitimacy of the expectation; and that (ii) the denial of the legitimate expectation led to a violation of Article 14:
57.3. A public authority must objectively demonstrate by placing relevant material before the court that its decision was in the public interest to frustrate a claim of legitimate expectation;................................................."
106. Keeping in mind the aforementioned principle of law if I consider the said 'Doctrine of Legitimate Expectation" in the context of the factual scenarios as involved in the instant writ petitions it appears to this court that it is the consistent stand of the Commission that 73,978 numbers of candidates have been wrongly eliminated in the screening test examination on account of evaluation of their answer sheets with the wrong answer key which was subsequently detected and thus the Commission had issued the said two notices under challenge following which it had taken next course of action for holding the second written test on 29.05.2011.
107. It is pertinent to mention herein that none of the Learned Advocates appearing on behalf of the writ petitioners in WPA 24588 of 2024, WPA 21918 of 2024, WPA 24781 of 2024, WPA 25438 of 2024, WPA 26090 of 2024, WPA 26237 of 2024, WPA 26792 of 2024, WPA 9578 of 2025, WPA 2304 of 2024 in course of their argument had contended that the said 73,978 numbers of candidates are either tainted and/or they have been unnecessarily favoured by the Commission. On the contrary it is the consistent stand of the said writ petitioners in the aforementioned writ petitions that on account of the orders passed in the case of Soumen Malakar (supra) as well as the orders passed in 61 2025:CHC-AS:1314 intra-court appeal no. MAT 907 of 2018 the commission is practically debarred from holding any further written examination in respect of the said test and further the said rule does not permit the commission to hold second written examination and thus the combined merit list as published by the commission is defective on account of failure on the part of the Commission to maintain same level playing field.
108. Admittedly the writ petitioners of WPA 24588 of 2024, WPA 21918 of 2024, WPA 24781 of 2024, WPA 25438 of 2024, WPA 26090 of 2024, WPA 26237 of 2024, WPA 26792 of 2024, WPA 9578 of 2025, WPA 2304 of 2024 appeared in the written examination on 29.05.2011 and one of such examinee being Soumen Malakar approached the Co-ordinate Bench ventilating his grievance on account of non-publication of the result of such written examination. Undoubtedly the writ petitioners in the aforementioned nine writ petitions practically stand on the same footing with Soumen Malakar since it is their legitimate expectation that the Commission will publish the result of such written examination as held on 29.05.2011.
109. In considered view of this Court such expectation of the writ petitioners of the aforementioned nine writ petitions is merely an expectation to avail benefit or relief based on their appearance in the said written examination as held on 29.05.2011. However, such legitimate expectation cannot serve as an independent basis for judicial review of the decisions taken by the commission which is an authority under Article 12 of the Constitution especially when a decision has been taken by the commission based on public interest that is to 62 2025:CHC-AS:1314 say in the interest of all successful candidates who have qualified in the screening test.
110. It thus appears to this court that the publication of the aforementioned two notices dated 05.08.2024 and 09.08.2024 and the consequential actions taken by the commission pursuant to the said two notices were taken by the Commission under a compelling circumstance i.e. in the public interest which in considered view of this Court is sufficient to outweigh the legitimate expectation of the writ petitioners of the aforementioned nine writ petitions for challenging the action of the Commission. This Court further holds that since the decisions of the Commission to hold the second written examination for the remaining 73,978 eligible candidates is found to be consistent and since such decision has been taken in a transparent manner, there is hardly any scope to hold that the action of the Commission is either arbitrary or motivated or perverse. It further appears to this Court that by giving chance to 73,978 eligible candidates for appearing in second written examination the commission has practically complied with the true spirit of the provisions of Article 14 of Constitution of India.
111. In view of discussion made hereinabove this Court is thus of considered view that the action of the commission in issuing the two notices under challenge and their subsequent actions on the basis of such notices cannot be challenged taking recourse to doctrine of legitimate expectation.
112. In order to come to a logical conclusion as to whether the action of the commission suffers from 'Wednesbury unreasonableness' this Court also proposes to look to the reported decision of Arubindo Rabha (supra) where the 63 2025:CHC-AS:1314 Hon'ble Supreme Court had occasion to consider the 'Wednesbury unreasonableness' test vis-a-vis the test of 'proportionality' in the action of an authority. Some relevant portions of the reported decision of Arubindo Rabha (supra) are quoted hereinbelow in verbatim:-
"28. ....................................It was held that the unreasonableness test looks, not necessarily at the merits of the decision, but the way the decision was made; the available courses of action of the deciding authority are scrutinised to ascertain what a reasonable man would do. On the other hand, the proportionality test is more wide reaching in its approach, closely analysing the course of action vis-à-vis the situation requiring a remedy.
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35......................Normally, it is not for the courts to interfere unless the process smacks of mala fides. However, the right to be considered for public employment being a Fundamental Right, it would be safe and prudent to have recruitment rules to govern the process of selection so that the best possible talent is appointed in public service. Obviously, assessing the merit of the candidates aspiring for public employment on the basis of a prescribed standard would not only provide a level playing field for each of them, the excellence of any institution to which the appointment is to be made would depend directly on the proficiency of its members/staff and that would, in turn, depend on the quality and merit of those who offer themselves for selection and ultimately get selected, necessitating the selection to be conducted without any hidden taint or masked mala fides.
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37.As the factual narrative has unfolded, it is not that the High Court was called upon by any unsuccessful candidate to test the bona fide of the earlier Government decision not to frame recruitment rules and/or not to prescribe a written examination and/or to require the aspiring candidates 64 2025:CHC-AS:1314 to only go through an interview; on the contrary, the facts presented evince that it is the successor Government that had taken an informed decision not to proceed with the earlier process and to start a new process. At that stage of decision making, possibly, three options were available to the Government, being (1) allow the process to be taken to its logical conclusion, without being unduly bothered by the illegalities/irregularities detected and referred to by the PCCF; (ii) cancel the entire process and start it anew; and (iii) separate the grain from the chaff and to proceed with the former and complete the process. No doubt, the Government could have set right the process by preferring the third option. However, once the Government arrived at the decision considering the illegalities/irregularities detected by the PCCF that the process ought to be started afresh and preferred the second option to the first and third options, thereby cancelling the previous process, the High Court ought to have applied the proportionality test to adjudge whether the perfect balance was struck by preferring that option out of the other available options. Sadly, such test has not been applied.
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49..........The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field."
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 65 2025:CHC-AS:1314 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 66 2025:CHC-AS:1314 be successful in the touchstone test of 'Wednesbury unreasonableness' test as well as the test of 'proportionality'.
117. Since on behalf of the petitioners of the aforementioned nine writ petitions it has been contended that in the second round of written examination as held on 01.09.2024 same level playing field was not maintained, this Court directed the commission to place before this Court a set of question paper of the first written examination as well as a set of question paper in the second written examination along with photocopies thereof.
118. Pursuant to the directions of this Court the commission had placed the said two sets of question papers before this court along with photocopies thereof, however, the originals of which have been returned to the learned advocate for the commission after making due comparison thereof.
119. This court has meticulously gone through the question papers of two different written examinations. It never transpires to this court that the said two question papers are of completely different standard. On the contrary it appears that in such two such question papers, same level playing field have been maintained.
120. It further transpires to this Court that the argument of the writ petitioners that the process of normalization in the two written tests have not been made is also found to be not convincing inasmuch as no materials could be placed on behalf of the writ petitioners of the aforementioned nine writ petitions that there was at all any scope for variation in the assessment of answers as alleged.
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121. On behalf of the writ petitioners of the aforementioned nine writ petitions it has further been strongly contended that the said rules do not permit the commission for holding multiple written tests and thus the written examination as held on 01.10.2024 must be held to be in contravention of the said rules. This court finds no merit in such submission inasmuch as rightly pointed out by Mr. Dhar, learned senior advocate appearing on behalf of the commission that the said rules expressly does not prohibit the commission for holding further written test in respect of those candidates who have been eliminated wrongly on account of wrong evaluation of answer sheets by wrong answer key.
122. This court further finds no merit in the argument as advanced by Mr. Samim that the said rules does not permit the commission to re-evaluate OMR sheets afresh since based on the propositions of law in the reported decisions of Sivanandan C.T (supra) as well as Arubindo Rabha (supra) this court has already come to a finding that in absence of any material to show that the commission had acted in an unfair and arbitrary manner the action of the commission cannot be questioned on the touchstone of 'Wednesbury unreasonableness'.
123. In view of the discussion made hereinabove, this Court thus finds no merit in the writ petitions namely; WPA 24588 of 2024, WPA 21918 of 2024, WPA 24781 of 2024, WPA 25438 of 2024, WPA 26090 of 2024, WPA 26237 of 2024, WPA 26792 of 2024, WPA 9578 of 2025 and WPA 2304 of 2024 and those are thus dismissed.
124. Consequently, all interim orders passed in connection with the aforementioned nine writ petitions stand hereby vacated. 68
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125. With the disposal of the aforementioned nine writ petitions, all pending interlocutory applications are also disposed of.
126. The West Bengal Madrasah Service Commission is hereby directed to complete the process of First State Level Selection Test, 2010 in accordance with the provisions of West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of Persons for Appointment and Transfer to the Posts of Teacher and Non-teaching Staff) Rules, 2010 positively within 21 working days from the day of passing of this judgement.
127. With the aforementioned observations WPA 29253 of 2024, WPA 845 of 2025 and WPA 1436 of 2025 are also disposed of.
128. Urgent photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.
(PARTHA SARATHI SEN, J.)