Calcutta High Court (Appellete Side)
Arunima Paul & Ors vs State Of West Bengal & Ors on 16 July, 2025
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Smita Das De
MAT 1017 of 2025
CAN 1 of 2025
Arunima Paul & Ors.
Vs.
State of West Bengal & Ors.
For the Appellants : Mr. Bikash Ranjan Bhattacharya, Sr.Adv.,
Mr. Firdous Samim, Adv.,
Ms. Gopa Biswas, Adv.
Mr. Hasanuz Zaman Molla, Adv.
Mr. Mainak Ghosal, Adv.
Mr. Amitava Deb, Adv.
For the State : Mr. Kishore Datta, Ld. A.G.,
Mr. Sirsanya Bandopadhyay, Sr. St. Counsel,
Mr. Biswabrata Basu Mallick, Ld. AGP.,
Mr. Vivekananda Bose, Jr. St. Counsel,
Mr. Soumen Chatterjee, Adv.
Mr. Sandip Das, Adv.
Mr. Debayan Sen, Adv.
Mr. N. Ojha, Adv.
For W.B.B.S.E : Ms. Koyeli Bhattacharyya, Adv.
Mr. Bibek Datta, Adv.
For W.B.C.S.S.C : Mr. Kalyan Bandopadhyay, Sr. Adv.
Mr. Biswarup Bhattacharya, Adv.
Mr. Arka Kumar Nag, Adv.
Mr. Rahul Kumar Singh, Adv.
Hearing concluded on : 14th July, 2025
Judgment on : 16th July, 2025
2
Soumen Sen, J :
1. The appeal is arising out of an order passed by the learned Single Judge on 7th July, 2025 in connection with several writ petitions heard analogously relating to the recruitment process initiated under the notification dated 30th May, 2025 issued by the Secretary of West Bengal Central School Service commission vide Memo no.
1092/7016/CSSC/ESST 2025 and the West Bengal School Service Commission selection for appointment to the post of Assistant Teachers for upper primary level of Classes except work education and physical education classes IX -X and Classes XI-XII Rules of 2025 (hereinafter referred to as "said Rules of 2025") For the purpose of convenience henceforth West Bengal School Service Commission shall be described as "WBSSC" and West Bengal Central School Service Commission shall be described as "WBCSSC" in abbreviated form.
2. The present appeal is directed against a portion of the impugned order whereby the contention of the appellant that the recruitment process initiated in 2025 on the basis of the said Rules of 2025 could not be made applicable to the present appellants as they are to be considered under the recruitment Rules, 2016 was rejected by a reasoned order. Submission on behalf of the Appellants
3. Mr. Bikash Ranjan Bhattacharyya, learned Senior Counsel appearing on behalf of the appellants has submitted that in terms of the judgment of the Hon'ble Division Bench dated 22nd April, 2024 read with the judgment of the Hon'ble Supreme Court on 3rd April, 2025 and the 3 modification order passed by the Hon'ble Supreme Court on 17 th April, 2025 in the Misc. Application no. 709 of 2025 in Civil Appeal No. 4805 of 2025, WBCSSC is not authorized or permitted to fill up the vacancies declared for the 1st SLST 2016 along with other vacancies. It is submitted that the declared vacancies of 1st SLST 2016 are only required to be filled up in terms of the previous recruitment Rules 2016 for Class IX-X and Classes XI-XII respectively based on the eligibility criterion mentioned in Rules of 2016.
4. It is submitted that even in the Misc. Application no. 709 of 2025 where the WBCSSC had applied for extending the service of the untainted candidates till the fresh selection process is initiated and concluded specific averments has been made in paragraph 5 of the said Misc. Application in which it has been stated that appropriate steps have been taken in terms of the judgment dated 3rd April, 2025 for filling up the vacancies "which have arisen on account of the selection process having been set aside". In view of such clear stand of the applicant Board it is no more open to the Commission to initiate a fresh process by declaration of further vacancies in its notification dated 30th May, 2025. If further vacancies have arisen by reason of passage of time a fresh recruitment process may be initiated to fill up such vacancies. The said Rules of 2025 cannot have any manner of application or could be given a retrospective effect for the filling up the vacancies declared and earmarked for SLST 2016.
5. Mr. Bhattacharyya has referred the paragraph 363(xi) of the judgment of the Hon'ble Division Bench and paragraphs 45 and 49 of the judgment 4 of the Hon'ble Supreme Court to emphasise that the aforesaid orders permit the WBCSSC only to fill up the declared vacancies involved in the first SLST 2016. Mr. Bhattacharya has emphasized the phrase "a fresh selection process in respect of declared vacancies involved in this selection process" in paragraph 363(xi) has to be read with the averments made by the WBBSE in paragraph 5 of the Misc. Application no. 709 of 2025 in which the phrase "which have arisen on account of the selection process having been set aside" has been used by the WBBSE.
6. Mr. Bhattacharyya has submitted that the findings, observations and directions contained in the aforesaid orders are to be strictly followed. The notification of the WBCSSC dated 30th May, 2025 in so far as it attempts to fill up further vacancies would be in clear violation of the aforesaid directions and not permissible in law. Mr. Bhattacharyya further submits that there has been significant changes in the Rules of 2025 which would render the present appellants disqualified. It is submitted that the prior teaching experience for 10 years was not an eligibility criteria in the earlier notification, moreover, the percentage of marks had been arbitrarily increased from 45% to 50% with a clear and mala fide intention to make the present appellants disqualified. An otherwise qualified candidates in terms of the orders mentioned above would now be not allowed to participate under the Rules of 2025. The present notification and Rules are intended and tailored to exclude the candidates qualified to participate under the Recruitment Rules of 2016. Moreover, all the appellants or most of them have become over age by 5 this time and will be disqualified under the said Rules of 2025. All the appellants are victims of circumstances and unless the said Rules of 2025 is set aside or appropriately modified the present appellants would loose valuable rights that have accrued in their favour under the recruitment process initiated in 2016 in accordance with the Rules of 2016.
7. Mr. Bhattacharyya has strenuously argued that neither the order of the Hon'ble Division Bench nor two several orders of the Hon'ble Supreme Court has limited the participation to the candidates appointed in the said selection process of 2016 in the fresh selection process. It is submitted that the words used are "candidates" in paragraphs 45 and 49 of the judgment of the Hon'ble Supreme Court which includes the candidates participated in the selection process of 2016 irrespective of their names being included in the panel. In view thereof, the fresh selection process should embrace the untainted candidates who have participated in the 1st SLST, 2016.
8. Mr. Bhattacharyya has also submitted that if it is clarified in so far as the present appellants are concerned that they would be considered under the recruitment rules of 2016 it would serve the purpose of the appellants. The clubbing of the vacancies is not in the contemplation of the orders on the basis of which a fresh recruitment process has to be initiated and accordingly the court may set aside the direction for clubbing of vacancies in the notification dated 30th May, 2025. Submission on behalf of the State 6
9. Mr. Kishore Dutta, learned Advocate General appearing on behalf of the State of West Bengal has submitted that the writ petition is not maintainable at the instance of the present appellants. The writ petitioners are neither selected nor empanelled candidates in the panel prepared on the basis of the recruitment process initiated for the 1st SLST, 2016. They were also not under scrutiny in the previous round of litigation.
10. Mr. Advocate General has seriously questioned the locus of the writ petitioners. It is submitted that the writ petitioners have not pleaded how they are aggrieved by the Rules of 2025 and in this regard he has referred to the pleadings in the writ petition at paragraphs 5, 8 and 9 and also paragraphs 1, 2, 4(iii), 4 (vii) and paragraph 7 of the stay petition. It is submitted that the pleadings would not show what right of the writ petitioners have been infringed by the subject Rules of 2025. There is no affectation of any of the rights of the writ petitioners.
11. Mr. Advocate General has submitted that the selection process that was initiated in terms of the Recruitment Rules of 2016 is no more in existence. Prior to the Rules of 2025, West Bengal School Service Commission (Selection for Appointment to the Post of Assistant Teachers in Jr. High, Secondary and Higher Secondary Schools) Rules, 2019 was issued by the department vide notification no. 231-SE/S/1S-21/19 dated 18th February, 2020 and the said Rule is now being superseded by the Recruitment Rules of 2025. The preamble of the Rules of 2025 would should that the said Rule is made in supersession of the Rules of 2019 and not the Rules of 2016 since the Rules are non-existent, having 7 been superseded by the Rules of 2019. The recruitment can only take place in accordance with the existing rules. The writ petitioners cannot claim any relief on the basis of a rule which has been abolished and non-existent. A rule which has been abolished cannot form the basis of an expectation in a writ petition filed in respect of recruitment process initiated in 2025. It is submitted that the judgment of the Hon'ble Division Bench and the judgment and order of the Hon'ble Supreme Court have not specifically stated that the fresh recruitment process should be in accordance with the Recruitment Rules of 2016. The only few categories of candidates who were appointed but lost their job have been given the right to participate in the fresh selection process. It is submitted that paragraph 49 of the judgment of the Hon'ble Supreme Court does not direct fresh recruitment has to be in accordance with the Rules of 2016. When the Hon'ble Division Bench decided the issue, the Recruitment Rules of 2016 was not in force, in fact, the Recruitment Rules, 2019 was prevailing at the relevant point of time. The said rule has now been superseded by the Recruitment Rules of 2025.
12. Mr. Advocate General has justified the variation in the vacancies list by referring to Rule 2(y) and 2(o) of the Rules of 2025. It has been submitted that the vacancies advertised are tentative vacancies and Final Vacancy will be the one published before the publication of Interview List. Variation in the vacancy list is thus permissible and contemplated. Assuming arguendo, the writ petitioners/appellants arguments are accepted, that the non-existent Rules of 2016 shall prevail, as allegedly directed by the Hon'ble Supreme Court, the Rules 8 of 2016 also contemplate publication of Final Vacancy list 15 days prior to written examination under Rule 8(3)(b). Therefore, even going by the Rules of 2016, vacancies are bound to increase. There is no vested right to a procedure provided in 2016 Rules. In fact, if a narrow interpretation is given to the orders dated 3rd April 2025 and 17th April 2015 of the Hon'ble Supreme Court, and the submission of writ petitioners/appellants is accepted, the Rules of 2016 will become unworkable in as much as many provisions cannot be given effect to and the remaining provisions will not help in complying with the Orders of the Hon'ble Supreme Court. To exemplify, it is submitted age relaxation is not contemplated under the Rules of 2016 and Rule 9(3) will become redundant and unworkable. Therefore, for all intent and purpose, Selection Process under the Rules of 2025 should be allowed to be proceeded without reading into the judgments and orders of this Hon'ble Court and the Hon'ble Supreme Court of India.
13. Mr. Advocate General has submitted that once old rules are substituted and the said old rules ceases to exist, the old rules cannot survive as clearly held in the decision of the Hon'ble Supreme Court in Firm A.T.B. Mehtab Majid & Co. v. State of Madras & Anr.1 (paragraph 20).
14. It is submitted that the rule making power of the executive has not been challenged. The vires of the said rules although challenged in the writ petitions have not been argued or pressed during hearing. Hence it has to be assumed that the appellants are not challenging the vires of 1 AIR 1963 SC 928: 1962 SCC Online SC 51:1963 (14) STC 355 9 the Recruitment Rules, 2025. Once it is accepted that the rule making authority has the power to specify method of recruitment, its power to revise and substitute cannot be doubted. The method of recruitment falls within the domain of the authority. The decision of the Hon'ble Supreme Court in LT. CDR. M. Ramesh Vs. Union of India & Ors.2 (Paragraph 21) has been relied upon for the proposition that the authority which has the power to specify the method of recruitment must be deemed to have the power to revise and substitute the same. This argument is made in order to justify the action of the Government in revising the vacancy list after 2016.
15. It is submitted that the creation and/or policy to create any post or prescribing the qualification for such post is within the exclusive domain of the executive and the justification for such policy decision are ordinarily not interfered with nor the Court can give any direction to create a post or prescribe any qualification for a post as clearly observed in C.S. Venkatasubramanian v. State Bank of India 3 (paragraph 4). Similarly, the decision of the authority to fill up or not to fill up the post is again a policy decision which is immune from judicial review and Court cannot interfere with any such decision of the Government as clearly laid down in State of Orissa & Ors. v. Bhikari Charan Khuntia & Ors.4 (paragraph 8).
16. Mr. Advocate General, however, has fairly submitted that the executive does not enjoy an absolute immunity with regard to its policy 2 2018(16) SCC 195 3 1997(1) SCC 254 4 (2003) 10 SCC 144 10 decisions as in a judicial review, the Court can always interfere with such policy decision if it is capricious, totally arbitrary and not informed with reasons. However, the present appellants cannot question the policy decision of the Government to fill up vacancies by a fresh selection process as they have no right to challenge the criteria or the change in rules that have been framed to ensure academic excellence. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in Rachna & Ors. Vs. Union of India & Anr. 5 (paragraphs 43 to 45).
17. The appellants have no fundamental right to any of the posts or adherence to any particular rule to be followed for the purpose of considering their eligibility for the post of Assistant Teachers.
18. It is submitted that when an expert committee has formulated the guidelines relating to recruitment of teachers, unless it is established that such change of policy would be in clear violation of statute or constitutional provision or is arbitrary, the decision of the authorities are to be respected. It is submitted that the rules relating to prior teaching experience was one of the criteria in the notification earlier to 2016 and that has been reinstated in the Recruitment Rules of 2025 to ensure quality teachers and proficiency in teaching standard. Whether the recruitment policy of 2016 is better than the Recruitment Rules of 2025 is not a ground for declaring any of the rules as ultra vires or to be interfered with in deciding the claim of the writ petitioners for being considered under the Recruitment Rules of 2016 only and in this regard reliance has been placed upon Bajaj Hindustan Limited v. Sir Shadi 5 (2021) 5 SCC 638 11 Lal Enterprises Ltd. & Anr.6 (Paragraph 41) and State of Madhya Pradesh v. Narmada Bahao Andolan & Anr. 7 (Paragraphs 35 and 36).
19. In so far as the variation in marks criteria is concerned Mr. Advocate General has submitted that NCTE is the expert body to fix the criteria for teachers' eligibility, in our Country. Revision in requirement in marks is pursuant to NCTE guidelines. Courts cannot substitute its views with that of the experts. Teachers' eligibility is fixed not for the benefit of the Teachers, but for the students. These students are the unrepresented class before this Hon'ble Court. Standards laid for the teaching of the students should not be meddled with. An interpretation ought not be given, which gives rise to a situation that some teachers satisfy present NCTE guidelines and some do not, making an anomalous situation. Candidates do not have any right to challenge the increase or decrease of zone of consideration.
20. It is submitted that the writ petitions are based on an apprehension of potential violation of the fundamental rights of the petitioners insofar as it includes prior teaching experience and enhancement of the percentage of marks. It is submitted that the bona fide of the writ petitioners are to be tested on the basis of such misplaced apprehension as none of the petitioners can come within the categories of candidates who have been protected by the judgment of the Hon'ble Division Bench and the judgment and order of the Hon'ble Supreme Court.
6 (2011) 1 SCC 640 7 2011 (7) SCC 639 12
21. Mr. Advocate General relying upon the decision of the Hon'ble Supreme Court in Sushil Kumar Sharma v. Union of India & ors.8 in Paragraphs 12 and 14 has submitted that mere possibility of abuse of a provision of law does not per se invalidate a resolution. Once a statutory provision is otherwise intra vires, mere possibility of abuse of power in a given case would not make it objectionable or unconstitutional. The said decision is relied upon in the context of showing that the writ petitioners have failed to show that any of the fundamental rights or statutory laws or rules have been violated or infringed. Mr. Advocate General has submitted that "reading down" cannot be resorted to by the appellants as they have not challenged the vires of the delegated legislation in their argument. The principal of reading down is applicable whenever a provision, which is questioned, is found to be ultra vires by the court but there is scope for the court to read the same down in a manner so as to save it from being declared constitutionally invalid. ((see. Allahabad University etc. V. Geetanjali Tiwari (Pandey) & Ors. reported in 2024 SCC Online SC 3776) per Dipankar Datta J. in paragraph 42) Submission on behalf of the WBCSSC
22. Mr. Kalyan Bandopadhyay, learned Senior Counsel, appearing on behalf of the Commission, in adopting the submission of the learned Advocate General, has submitted that the locus of the appellants are required to be decided first. The writ petitions are required to be decided on the basis of the averments made in the writ petition. It is submitted that the writ petitioners have failed to disclose affectation of any of their 8 (2005) 6 SCC 281 13 fundamental or statutory rights. The writ petitioners have described themselves to be untainted candidates who have participated in the selection process of 2016 without disclosing any particulars.
23. In the absence of any challenge to the validity of the Recruitment Rules, 2025, the writ petitioners cannot pick and choose any particular Rule and argue that the said Rules are to be read down or invalidated in order to accommodate the writ petitioners. Mr. Bandopadhyay has referred to the affidavit-in-opposition filed by the Commission to show that there are total 35726 vacancies of Assistant Teacher in Class IX-X and Class XI-XII and these seats are required to be filled up in the Second State Level Selection Test (SLST). The number of vacancies in the 2nd SLST is much more than the number of vacancies which were sought to be filled up vide the 1st SLST. However, the posts of Assistant Teachers in some subjects, where sufficient teachers were not recommended during the 1st SLST due to lack of eligible candidates and no further requirement was felt for such Assistant teachers in the successive decade, were not declared vacant during the 2nd SLST. The posts that have been reduced were found to be vacant after the 1st SLST, as no one was recommended against these posts. It is submitted that the writ petitioners have failed to make out any case that the reduced posts have affected their rights in any manner. In the absence of any infringement of any legal right, no mandamus would be issued in favour of the writ petitioners. It is submitted that till 13th July, 2025 at 1:00 am (approximately), a total of 2,98,692 applications have been received for the posts of Assistant Teaches of Classes IX-X and a total of 14 2,23,259 applications have been received for the posts of Assistant Teaches of Classes XI-XII. It is submitted that the judgment of the Hon'ble Supreme Court has made it clear that only two categories of candidates have been given age relaxation and there is no specific mentioning that fresh recruitment process should be in respect of the vacancies that were decaled in 2016 and cannot extend to any further vacancies that have arisen in the meantime. The vacancies may arise between the date of advertisement and date of actual recruitment. In referring to the Recruitment Rules, 2025, it is submitted that the judicial review of subordinate legislation is very limited. Unless it violates the fundamental rights of the citizens or opposed to the provisions of the Constitution, or opposed to any statutory provisions or manifestly arbitrary it cannot be struck down. It is not open for the Courts in the judicial review to set aside a policy merely on the ground of availability of a better, fairer or wiser alternative. Legality of the legislation and not the wisdom or soundness of it, is the subject matter of judicial review. It is submitted that the petitioners are seeking relaxation of various eligibility criteria as prescribed in the 2025 Rules and in the Notification dated 30th May, 2025. However, the Courts cannot issue any direction to make an appointment by granting relaxation of eligibility or in contravention thereof, as fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the executive and cannot be the subject matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service for which appointments are to be made or has no 15 rational nexus with the objects sought to be achieved by the statute. It is submitted that the petitioners are not able to make out any case that 2025 Rules violate the Constitutional principles or the West Bengal School Service Commission Act, 1997.
24. Mr. Bandopadhyay has justified the awarding of 10 marks for prior teaching experience on the ground that it is also extended to the teachers who have taught in schools under Kendriya Vidyalaya Sangathan, Navodaya Vidyalaya Samity, State Council of Educational Research and Training, West Bengal and other government-sponsored schools. Marks for prior teaching have been provided with a view to appointing experienced teachers who will be able to teach students. In this regard he has relied upon the decision of the Hon'ble Supreme Court in the case of Mahesh Chand Bareth & Anr. v. State of Rajastan & Ors.9. There is an intelligible differentia between unsuccessful candidates and in service teachers, which the writ petitioners have sought to veil from this Hon'ble Court in this proceeding.
25. Mr. Bandopadhyay has submitted that no relief can be granted unless there is foundational pleading. The enquiry of the Writ Court should be restricted as part of the writ petition of the counter/reply affidavit. The findings of the Courts have to be based on the pleadings as have been produced before it. All the Rules of procedure prescribed in the selection process are for the purpose of selecting the best candidates amongst the applicants. Condition of eligibility of entitlement to secure marks which 9 (2024) 8 SCC 124 16 have been laid down are matters of policy over which Courts have no expertise and the judicial review would not extend the cases where regulations are framed by experts having a major idea of what is required and what is not for appointment on teaching posts. In aid of such submission, Mr. Bandopadhyay has relied upon a recent decision of the Hon'ble Supreme Court in Allahabad University etc. v. Gitanjali Tiwari (Pande) & Ors.10. The said decision is also relied upon to show the meaning of 'reading down' a statute which can be resorted to whenever a provision, which is questioned, is found to be ultra vires by the Court, but there is a scope for the Court to read the same down in the manner so as to save it from being declared constitutionally invalid. It is submitted that in the absence of any such infirmity in the said Rules, the question of reading down any provision of the Recruitment Rules, 2025 does not arise. Reliance is placed upon paragraphs 12 to 14 of the decision of the Hon'ble Supreme Court in the case of State of Gujarat & Ors. v. Arvindkumar T. Tewari & Anr. 11 (paragraph 12 to
14) to argue that Rules existing on the date of advertisement should be applied to decide the eligibility criterion as any person appointed without requisite qualification would be contrary to statutory rules and would be void. Once an appointment is declared to be bad and void such appointment cannot be continued or preserved merely because the person has been employed for a long time.
10 (2024) SCC OnLine SC 3776 11 (2012) 9 SCC 545 17
26. Mr. Bandopadhyay has argued that the writ petitioners have failed to disclose any infirmity of the Rules of 2025 and in the writ petitions, nothing has been disclosed to show that such Rules of 2025 is likely to affect them. Moreover, it has not been disclosed that if the petitioners were at all eligible for the post which have not been included in the Recruitment Rules, 2025 or they were qualified for the post. These are some of the essential facts to be pleaded and proved before any relief can be granted to the writ petitioners.
27. A copy of the affidavit of compliance in terms of the order dated 17 th April, 2025 on behalf of the State of West Bengal filed before the Hon'ble Supreme Court is produced wherever it appears that the Notification dated 30th May, 2025 has been disclosed in compliance with the order dated 17th April, 2025.
28. In reply, Mr. Bikash Ranjan Bhattacharyya, learned Senior Counsel, has submitted that the writ petitioners are not challenging the vires of the Recruitment Rules, 2025 as their rights as untainted candidates are fully secured and has to be tested an anvil of the judgment of the Hon'ble Division Bench in paragraph 363 (xi) read with paragraph 49 of the judgment of the Hon'ble Supreme Court.
29. The New Recruitment Rules have been framed with a clear intention to exclude the present untainted candidates who would be ineligible under the Recruitment Rules of 2025.
Observation:
18
30. The principal issue raised in this appeal is the applicability of the said Rule of 2025 in relation to the candidates who have participated in the first SLST 2016 for Classes IX-X and Classes XI-XII. The present appellants are wait listed candidates. They were not given any appointment letters. In such circumstances it has be seen whether they at all have any right to challenge the present recruitment process. In our respectful reading of the concluding paragraphs of the judgment of the Hon'ble Supreme Court encapsulated in paragraphs 45 to 49 certain benefits and concession have been given to disabled candidates and candidates not specifically tainted. The disabled candidates were allowed to participate with appropriate age relaxation along with untainted candidates. These two categories of candidates could take part in the fresh selection process with certain relaxation. Apart from the aforesaid two categories no other category was specifically mentioned who would be entitled to any such relaxation or concessions in the fresh selection process to fill up vacancies. The appellants cannot be treated at par with the disabled or untainted candidates who were appointed but lost their job as the entire selection process was vitiated by fraud and corruption. In such background in our respectful reading of the judgment of the Hon'ble Supreme Court, paragraph 49, age relaxation was allowed only to such categories of candidates who were appointed in the said selection process. The reliance on paragraph 5 of the Misc. application filed before the Hon'ble Supreme Court in our view does not come to the aid of the present appellants as they were not given any benefits of age relaxation and other concession. Admittedly, they were 19 not appointed. The appellants by reason of mere participation do not acquire any vested right. It is a mere exception that in the event all the posts are not filled up or any vacancy arises due to failure of a successful candidate to join the post within a stipulated time if they are 'waiting list' candidates they would be considered for filling up such vacant posts in terms of the merit list. Mr. Bhattacharyya has raised another issued. It is strenuously argued that some of the provisions contained in said rules of 2025 are contrary to the orders and directions of the Hon'ble Division Bench and the Hon'ble Supreme Court. It is submitted that Recruiting Authority ought not to have altered the provisions relating to fixation of 50% marks instead of 45% which was in the earlier recruitment rules for the graduation/post-graduation level which would enable the candidates to be considered as eligible. According to the petitioners, distribution of marks i.e. 10 for prior teaching experience, 10 for interview and 10 for lecture demonstration ought not to have been provided which would grant the Recruiting authority and the Interview Board unbridled power to allot marks indiscriminately.
31. The learned Single Judge in rejecting the submission on behalf of the appellants with regard to clubbing of subsequent vacancies and fixation of minimum marks in the selection process has made the following observation:
"28. On reading of the judgment of the Hon'ble Division Bench dated 22nd April, 2024 which merged with the judgment of the Hon'ble Supreme Court dated 3rd April, 2025, it does not appear that recruiting authority cannot enhance the number of vacancies 20 meant for 1st SLST, 2016 for Classes IX & X and XI & XII by clubbing subsequent vacancies. What is required is inclusion of vacancies which were meant for 1st SLST, 2016 for Classes IX & X and XI & XII. Similarly, nowhere any embargo has been imposed thereby preventing State authorities including WBCSSC from framing separate rules for filling up those vacancies.
29) Fixation of minimum marks in a selection process which in the present case has been fixed as 50% instead of 45% which was prevalent in graduation and post graduation level is policy decision of the recruiting authority which ought not to be interfered with.
30) In view of aforesaid discussion, respondent authorities including WBCSSC are directed to proceed with the selection process which started vide recruitment notification dated 30th May, 2025 but in the said selection process tainted candidates shall not be permitted to participate........."
32. The policy decision of the Government is subjected to judicial scrutiny only in exceptional circumstances where it appears that the policy or some clauses in the policy is/are manifestly arbitrary, discriminatory, malafide, unreasonable or unfair or if it is found to be against any statute or constitution. If it is dehors the provisions of the act or legislation and if the delegate has acted in excess or beyond its power of delegation such policy can be declared to be ultra vires. The Recruitment Rules 2025 per se is not under challenge. Intelligible differentia for the purpose of selection of suitable candidates shall not be interfered with unless such criteria appears to be arbitrary. There is an intelligible differentia between unsuccessful candidates and in service candidates. 21
33. When an expert body has taken a policy decision with regard to the eligibility criteria of candidates to be applied for appointment of Assistant Teachers for classes IX-X and classes XI-XII and has elaborately laid down the guidelines the court in judicial review should not substitute the said views with its own perceptions. Education plays an important role in shaping the society and country. The most competent, brilliant and proficient candidates are to be appointed in a competitive examination. It should have larger participation so that their skill and proficiency are adequately and rigorously assessed before they are appointed as teachers in the education institutions. The enhancement of the mark or declaration of further vacancies in our respectful view is not arbitrary. By reason of passage of time the number of vacancies have increased and everyday courts are confronted with large number of cases where vacancies could not be filled up due to pendency of the litigations. Although the WBCSSC and WBBSE are responsible for the present impasse that has adversely impacted and affected the education system, it is high time that all the vacancies are filled up if required by the clubbing the vacancies as the separate recruitment process for vacancies declared in 2016 and beyond it would cause serious inconvenience and delay in filling up existing vacancies. It would also affect the State exchequer. The court is concerned with appointment of quality teachers through competitive examination for filling up all existing vacancies. There cannot be any greater concern for the court than the academic interest of the students. We have come across cases where the pupil teacher ratio is abnormally high and due to 22 non-filling up of vacancies the students are suffering. We accept the submission of the learned Advocate General and Mr. Kalyan Bandopadhyay, Sr. Advocate for laying down the criterion and justification for increasing the number of vacancies. Moreover, the Rules of 2016 was substituted by the Rules of 2019 and now the preamble of the Rules of 2023 shows that it was framed in supersession of the earlier. Once the old is substituted by the new rule it ceases to exist and it does not revive automatically when the new rule is held to be invalid per Raghubar Dayal, J. in Firm A.T.B Mehtab Majid (supra) paragraph
20. The submission of Mr. Advocate General as summarized in paragraphs 12 and 13 aforesaid are accepted.
34. The awarding of 10 marks is an weightage to be given on the basis of experience and it is only expected that in a selection process of this nature and kind, all the candidates are required to undergo the rigours of the selection process. In order to select the most suitable candidates, proportionate weightage based on the length of experience to the extent of 10 marks be given to such candidates is not arbitrary. The object is to select an appoint experience teacher. As rightly pointed out by the Ld. Advocate General and also Mr. Kalyan Bandyopadhyay learned Senior Counsel appearing on behalf of the Commission the appellants/writ petitioners are not coming within the purview of the categories in whose favour benefits and concessions have been extended in paragraph 49 of the judgment of the Hon'ble Supreme Court. They are not the candidates selected in the 2016 recruitment process. In the meantime, they have not also applied for service in any educational institution. It shall be the 23 duty and responsibility of the State to ensure quality education and the eligibility criteria should be framed keeping in mind the interest of the students. If we accept the submission of Bikash Ranjan Bhattacharyya, learned Senior Advocate then for the selection for the same subject teacher two different eligibility criteria has to be applied. The eligibility criteria in the selection process of 2016 is different from recruitment process of 2025. The Rules are more stringent and student centric. The revision in the eligibility criterion is in accordance and consonance with the NCTE guidelines. NCTE is an expert body to fix the criterion. NCTE is the statutory regulator for teacher education. In exercise of its powers under Section 32 of the NCTE Act, it makes regulations specifying norms, standards and guidelines, inter alia, prescribing minimum qualifications. The Commission has followed the said guidelines prepared and recommended by an expert body. There cannot be any compromise on the standard prescribed by NCTE. Education system will fail if we compromise on its "quality". All recruitment rules must prescribe eligibility criterion with the object of recruiting best qualified teacher. A good teacher is the first assurance of 'quality' education in a school. Any compromise on the qualification of teachers would necessarily mean a compromise on the 'quality' of education. Jacques Barzun, the American educationlist and historian, in his seminal work 'Teacher in America', says "teaching is not a lost art, but the regard for it is a lost tradition".[see. Devesh Sharma v. Union of India; 2023 SCC Online SC 985]. While candidates with 45% marks in Graduation may be eligible for the same subject a candidate requires to apply under the 24 Recruitment Rules of 2025, would have to fulfill the criteria of 50% and both of them if appointed may be a teacher for the same subject teaching in different educational institution. This will result in discrimination and a compromise on the quality. The prior teaching experience is an important factor as experienced teacher may impart education for effectively and efficiently. The recruitment Rules 2025 has not been challenged by any of the appellants. The delay in the fresh recruitment is due to the pending litigations and when the opportunity for employment is opened by advertisement it is always open for the authority to decide the eligibility and other criteria in the academic interest and for the benefit of the student. We accept the submission on behalf of the State respondents that there was no specific direction in the order of the Hon'ble Supreme Court by which the State is obligated only to fill up the declared vacancies of 1st SLST 2016. All the orders relating to the issue has directed fresh recruitment to be carried out without any specific reference to the recruitment Rules 2016. In our respectful reading of the orders there are no restriction imposed for allowing candidates to participate in the fresh selection process who may have participated and not selected or for fresh candidates who are eligible as on the date of advertisement. Moreover, in our respectful reading there is no restriction on the Board or the Commission to fix the number of vacancies. In fact, creation of further vacancies has not been seriously opposed by the learned Counsel for the appellants. The only objection seems to be that the further vacancies that have arisen after 1st SLST, 2016 are to be filled up by a separate recruitment process. The power of the State either to 25 increase or reduce the number of seats have not been seriously challenged. The submission of Mr. Advocate General and Mr. Kalyan Bandopadhyay in this regard is accepted.
35. If the Government felt that the experience gained by the candidates is relevant the court cannot take a different view in judicial review. Similarly, prescribing any age limit for a given post and also deciding the extent to which any relaxation can be given to the said age limit are essentially matters of policy. The criteria laid down in the recruitment process of 2025 was intended to select the best of the candidates. The right to education guaranteed in terms of Article 21-A clearly envisages quality education being imparted to the children which in turn would signify that the teacher must be meritorious and the best of the lot. Any process which applied equally to all the candidates and was designed to garner the best talent, cannot be called arbitrary or irrational [See. Ram Sharan (supra)] per Uday Lalit, J. paragraph 68. The eligibility criterion in the Recruitment Rules of 2025 is in furtherance of the object of finding the best available talent.
36. The Constitutional Courts in a judicial review is not functioning as Appellate Authorities to examine the correctness, suitability and appropriateness of a policy nor they function as advisors to the executive on matters of policy which the executive is entitled to formulate and unless the Court comes to a finding that there is any violation of fundamental rights of the citizen or is opposed to the provisions of the Constitution or opposed to any statutory provision or manifestly arbitrary, as has been held in catena of decisions including the judgment 26 in Directorate of Film Festivals & Ors. Vs. Gaurav Ashwin Jain & Ors.12 (paragraph 16), the wisdom and soundness of the policy cannot be the subject matter of a judicial review.
37. It is the prerogative of the executive to decide how many appointments shall be made. The mere fact that the names of the candidates appear in the list will not entitle him to a mandamus that he be appointed. If it appears that the State Government while making the selection for appointment had departed from the ranking given in the list, there could have been a legitimate grievance on the ground that the State Government had departed from the rules in that respect. The selection for appointment would come provided a particular candidate is eligible for consideration. Arunima Paul and Ors. are not selected candidates and hence could not have been considered for appointment even under the Recruitment Rules of 2016. They have merely participated in the selection process as claimed. They are not similarly placed with the candidates mentioned in paragraph 49 of the judgment of the Hon'ble Supreme Court.
38. The interest of the student is of paramount consideration.
39. On such consideration we are not inclined to interfere with the impugned order.
40. The appeal and the application are accordingly dismissed. 12
(2007) 4 SCC 737 27
41. However, there shall be no order as to costs.
I agree (Soumen Sen, J.) (Smita Das De, J.)