Calcutta High Court (Appellete Side)
Md. Nurul Hasan Mondal & Ors vs The State Of West Bengal & Ors on 12 May, 2026
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
The Hon'ble Mr. Justice Bivas Pattanayak
W.P.A. 688 of 2025
(CAN 1 of 2025; CAN 2 of 2026)
Md. Nurul Hasan Mondal & Ors.
Versus
The State of West Bengal & Ors.
With
W.P.A. 3120 of 2025
Md. Rakibullah Goldar & Ors.
Versus
The State of West Bengal & Ors.
With
W.P.A. 3414 of 2025
Sahin Md. Al Amin & Anr.
Versus
The State of West Bengal & Ors.
With
W.P.A. 611 of 2025
(CAN 1 of 2026)
Abu Bakar Khan & Ors.
Versus
The State of West Bengal & ors.
For the petitioner : Mr. Kamalesh Bhattacharyya
(in WPA 688 of 2025) Mr. Anindya Bhattacharyya
For the petitioner : Mr. Somesh Kr. Ghosh
(in WPA 3120 of 2025 & Ms. Priyanka Saha
WPA 3414 of 2025) Mr. Suman Mukherjee
Ms. Tulika Bag
For the petitioner
(in WPA 611 of 2025) : Mr. Shahan Shah
Mr. Soumen Barman
Mr. Md. Shahjahan
Ms. Sanjita Sarkar
2
For Madrasah Service Commission : Ms. Madhurima Sarkar
For the State
(in W.P.A. 688 of 2025) : Mr. Supriyo Chattopadhyay,
ld. AGP
Mr. Sabyasachi Mondal
For the Madrasah Board : Mr. Nadeem Sulaiman
Mr. Mijanul Kabir
For the State
(in W.P.A. 3120 of 2025) : Mr. Jayanta Samanta
Mr. Kaustav Chatterjee
For the State
(in W.P.A. 3414 of 2025 : Mr. Samim Ul Bari
Ms. Indrani Nandi
For the State
(in WPA 611 of 2025) : Mr. Sirsanya Bandopadhyay,
ld. Sr. Adv.
Ms. Tapati Samanta
For the Applicants
in CAN 1 of 2026 : Mr. Sk. Abumusa
(In WPA 611 of 2025)
Heard on : 24.12.2025, 28.01.2026,
11.02.2026, 18.02.2026
25.02.2026
Reserved On : 25.02.2026
Judgment on : 12.05.2026
Bivas Pattanayak, J.:-
1. The aforementioned writ petitions have been preferred challenging
clarification Notification being No. WBMSC/7th SLST (AT)/Notice/07/2024
dated 24th December, 2024 issued by the Secretary, West Bengal Madrasah
Commission (hereinafter referred to as „the Commission‟) clarifying that there
was no negative marking in evaluation of Teacher Eligibility Test (in short,
„TET‟) OMR Answer Sheets in TET (Arabic) for Classes I-IV and TET (Arabic
3
and Advance Arabic) for Classes V-VIII and thereby withdrawing the negative
marking system in the said examination.
2. The brief fact of this case is as follows. The Commission notified 7th State
Level Selection Test (in short „SLST‟) for recruitment of Assistant Teachers
(A.T.) 2023 for classes IX-X & classes XI-XII and TET (Advance Arabic,
Arabic for classes V-VIII and Arabic UG for classes I-IV) vide Memo no.
MSC/Notice/03/2023 dated 4th May 2023. Thereafter, the Commission
published another notice being no. WBMSC/7th SLST/Notice/01/2024
dated 17th January 2024 informing all concerned that TET examination of
7th SLST (AT) for classes I-IV and classes V-VIII will be held on 28th January
2024. The petitioners participated in the TET examination of 7th SLST (AT)
for classes I-IV and classes V-VIII. It was mentioned in the guidelines as well
as in serial no.10 of the instruction of the booklet that for two wrong
answers, one mark would be deducted. The results of the said examination
were published on 21st December 2024. Subsequent to publication of such
results it was clarified vide Notification No. WBMSC/7th SLST
(AT)/Notice/07/2024 dated 24th December, 2024 that there was no negative
marking in evaluation of TET OMR Answer Sheets in TET (Arabic) for
Classes I-IV and TET (Arabic & Advance Arabic) for Classes V-VIII as per
NCTE Rules. Such condition was lifted after completion of examination as
well as publication of the results, which is palpably illegal. Challenging such
action of the respondent authorities, particularly the Commission, the
petitioners have filed the aforementioned writ petitions.
3. In WPA 611 of 2025, similarly circumstanced candidates filed application being CAN 1 of 2026 seeking for their impleadment. Likewise, in WPA 688 of 4 2025, also similarly circumstanced candidates filed application being CAN 1 of 2025 and CAN 2 of 2026 seeking for their impleadment. The aforesaid applications for impleadment were not objected to by the respondents concerned at the time of hearing. Accordingly, applicants of CAN 1 of 2026 in WPA 611 of 2025 are added as petitioner Nos. 11 to 19 and the applicants of CAN 1 of 2025 and CAN 2 of 2026 in WPA 688 of 2025 are impleaded as petitioner Nos. 14 to 39 respectively. The applications are accordingly allowed and disposed of. Liberty is granted to the learned advocate on record for the petitioners in WPA 611 of 2025 and WPA 688 of 2025 to make necessary amendment in the cause title of the respective writ petitions.
4. Mr. Kamalesh Bhattacharyya, learned advocate appearing for the writ petitioners as well as added petitioners in WPA 688 of 2025 submitted that the 7th SLST (A.T) 2023 was initiated by the Commission for Class V-VIII having total marks 150. The writ petitioners participated in the said examination. The Commission in its information guidelines for 7th SLST at note 11 and in the OMR sheet at serial no. 10 mentioned that there will be negative marking for wrong choice of option and one mark will be deducted for every two wrong answers. The petitioners in the course of examination attempted only such questions which according to the petitioners were absolutely correct and the petitioners did not attempt the questions where they had doubt of the answer or were not sure. The results of 7th SLST (AT) were published on 21st December, 2024 and the petitioners were held unsuccessful. Most of the petitioners have narrowly missed the cut off marks required to be successful candidates. The mystery was disclosed by the Commission after three days of the declaration of the results i.e. on 24th 5 December, 2024 informing that the evaluation of TET OMR Answer Sheet has been made without negative marking. If the clause for deduction of marks against wrong answer was not introduced at the first instance, the petitioners would have attempted all questions and fetched more marks than what has been awarded. The rule of examination as was announced prior to examination was changed subsequently, after the examination was over and that too after declaration of results. The rule of game cannot be changed once the game is started. To buttress his contention, he relied on the decision of the Hon'ble Supreme Court passed in Mohd. Sohrab Khan versus Aligarh Muslim University and others1. Relying on the decision of Hon'ble Supreme Court passed in Pramati Educational and Cultural Trust versus Union of India2, he submitted that the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as „RTE Act of 2009‟) is not applicable to the Minority Educational Institution established under Article 30(1) of the Constitution of India. Section 1(5) of the said Act of 2009 excludes application of the said Act to Madrasah. Therefore, NCTE regulation which has been introduced following RTE Act of 2009, providing that there shall be no negative marking in TET Examination, cannot be made applicable in the case of examination conducted by the Commission. As per rule 7(4) of the West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of Persons for appointment and Transfer to the Post of Teacher and Non- 1 (2009) 4 SCC 555.
2 (2014) 8 SCC 1 6 Teaching Staff) Rules, 2023 (hereinafter referred to as „Rules of 2023‟) the Commission is empowered to introduce negative marking. Further the result of the TET examination since was not published in terms of recruitment procedure, the same is liable to be set aside by cancelling the selection list. In such circumstances, the Commission has two options either
(a) to recast the result of TET (Arabic) 7th SLST for Class V-VIII and publish the new result applying negative marking, or (b) to cancel the entire selection process and initiate selection process de novo with condition of "No negative marking" against the wrong answer. He seeks for appropriate orders.
5. Mr. Chittapriya Ghosh, learned advocate appearing for the petitioners in WPA 3120 of 2025 and WPA 3414 of 2025 submitted that in pursuance of Article 30 of the Constitution of India, the State Government by a Notification No.1465-MD/07 dated 12th October, 2007, declared all recognized and Government aided Madrasah in the State as Minority Educational Institutions and also enacted West Bengal Madrasah Service Commission Act, 2008 (hereinafter referred to as „Commission Act of 2008‟). The statutory mandate under the RTE Act of 2009 as well as the notifications and guidelines issued from time to time by the NCTE, being academic authority, are not applicable to the recognized and Government aided Madrasah in the State of West Bengal. In support of his contention, he also relied on Pramati Educational and Cultural Trust (Supra), Anjuman Ishaat E Taleem Trust versus The State of Maharashtra3. Under Rule 7 of the Rules of 2023, the Commission is vested with the authority to select 3 2025 SCC OnLine SC 1912 7 candidates based on SLST which may comprise any or all components outlined in sub-rule (1), as determined by the Commission. Rule 7 (4) empowers the Commission to implement negative marking for incorrect options. Thus, the Commission is entitled to conduct the TET not only by following NCTE guidelines but it can also exercise the broader powers conferred upon it under Rule 7 of the Rules of 2023. The Rule gives the Commission procedural authority to determine the actual conduct of the test including mode of the examination (OMR), imposition of the negative marking, or inclusion specific subjects. In exercise of the power conferred upon it, the Commission introduced negative marking in the TET and notified the same in the information guidelines, question booklet and other relevant official communications. However, the Commission unilaterally withdrew the condition of negative marking vide impugned notification dated 24th December, 2024, that too, upon completion of the TET examination and declaration of the results. The Commission cannot unilaterally withdraw and retract from its own decision of implementing negative marking on the ground of an alleged contravention of NCTE guidelines. Upon such unilateral withdrawal of negative marking after declaration of results, the Commission has compromised the integrity of the merit list. The action of withdrawal of condition of negative marking has allowed less meritorious candidates to qualify displacing genuinely meritorious aspirants. Furthermore, a retrospective change to the rules of the game not only violates the principle of fair competition but also opens the door for arbitrary selection and potential corruption.
8In the light of his aforesaid submission, he prayed for quashing and/or setting aside the impugned Notification dated 24th December, 2024 issued by the Secretary of the Commission withdrawing the negative marking system in the said examination.
6. Mr. Shahan Shah, learned advocate for the writ petitioners in WPA 611 of 2025 and as well as for the added petitioners, adopting the submissions advanced on behalf of the petitioners in the other writ petitions, submitted that by such Notification dated 24th December, 2024 clarifying that there will be no negative marking for wrong answers deprives the petitioners equal opportunity in the matter of public employment provided under Article 16 of the Constitution of India. Relying on the decision of the Hon'ble Supreme Court in Tej Prakash Pathak and others versus Rajasthan High Court and Others4, he submitted that the once the process of examination/recruitment commences, the rule of game cannot be changed. Therefore, the action of the Commission in withdrawing the negative marking system is not sustainable in the eye of law. He seeks that the TET Examination of 7th SLST (A.T), 2023 for Class I-IV and V-VIII should be cancelled and direction be issued for conducting fresh examination de novo.
7. In reply to the contentions raised on behalf of the petitioners in the aforementioned writ petitions, Mr. Pratik Dhar, learned Senior Advocate appearing on behalf of the Commission submitted that Rule 2 (xxviii) of the Rules of 2023 defines "TET" as the Teacher Eligibility Test conducted by the Commission as per the NCTE guidelines. Clause 6 of the NCTE guidelines dated 11th February, 2011 [under Section 23(1) of RTE Act of 2009] 4 (2025) 2 SCC 1 9 expressly mandates that "there will be no negative marking" in TET. This is a statutory mandate and not discretionary. Rule 7(4) of the Rules of 2023 empowers the Commission to introduce negative marking. However, it applies only to the SLST Main Examination for Classes IX-XII, not to upper primary TET. The combined advertisement both TET and SLST Main inadvertently mentioned negative marking without distinguishing between the two. This was an error in description, not in evaluation. The Commission corrected the error by following the law. It is settled law that, where there is a variance between the advertisement and statutory rules, the statutory rules will prevail. Any part of the advertisement, which is contrary to the statutory rules, has to give way to the statutory prescription. In support of his contention, he relied on the following decisions of the Hon'ble Supreme Court:
(i) Ashish Kumar versus State of UP and others5;
(ii) Employees State of Insurance Corporation versus Union of India and others6;
(iii) Union of India versus Uzair Imran and others7;
The Commission during evaluation did not apply negative marking and the Notification dated 24th December, 2024 merely discloses such fact. The doctrine presupposes prejudice. In the present case, the correction benefited all the candidates including the petitioners, who scored more marks without negative marking. A doctrine designed as a shield against prejudice cannot 5 (2018) 3 SCC 55 6 (2022) 11 SCC 392 7 (2024) 20 SCC 345 10 be used as a sword by candidates who is actually benefited. Thus, it cannot be said that there is a change in the rule.
Further all the petitioners participated in TET on 28th January, 2024 without demure. Successful TET candidate appeared for the main Examination on 19th January, 2025. Having participated at every stage, petitioners cannot challenge the process after an unfavourable result. The petitioners seek to enforce an error. The Commission's correction was made following the law. A mistake in the advertisement cannot be a basis for cancellation which has been corrected by the Commission in compliance with the NCTE guidelines. Departure from the terms of an erroneous advertisement by the Commission, to ensure conformity with statutory rules, is not impermissible. Relying on the decision of the Hon'ble Supreme Court in Union of India and another versus Narendra Singh8, he submitted that it is a settled principles of law that mistakes are mistakes and they can always be corrected by following due process of law. The non- application of negative marking was uniform for all TET candidates, therefore, there cannot be any case of discrimination. The petitioners though actually scored more without negative marking yet they failed despite this benefit. Where no prejudice is caused, writ relief is unwarranted. Although it has been pressed into the service on behalf of the petitioners that the NCTE regulation is inapplicable to Madrasah relying on Pramati Educational and Cultural Trust (supra), however, such decision will not apply in the present case for the reasons, firstly, such judgment of the Hon'ble Supreme Court is passed in a case of State of Rajasthan and not in respect 8 (2008) 2 SCC 750 11 of State of West Bengal and secondly, the observation and the finding in the said decision has been questioned by the other Bench of the Hon'ble Supreme Court, and reference has been made for consideration by a Larger Bench. Furthermore the constitutionality of the Madrasah Service Commission Act was upheld by the Hon'ble Supreme Court in Sheikh Mohmd Rafik versus Managing Committee, Contai, Rahamania High Madrasa and others9 after this Hon'ble Court had declared the Act as ultra vires. Thus, the Commission's status as a statutory body operating under NCTE norms is settled. Therefore, there cannot be any manner of doubt that NCTE regulations applies in case of Madrasahs as well. In the light of his aforesaid submissions, he prayed that the writ petitions being misconceived is liable to be dismissed.
8. Upon hearing the learned advocates for the respective parties, following issues have fallen for consideration.
(i) Whether the NCTE regulation introduced in accordance with provision of Sub-Section (1) of Section 23 of the RTE Act of 2009 applies in case of minority school aided or unaided Madrasah?
(ii) Whether the evaluation of the Answer Sheets by the Commission of the participating candidates without negative marking contravenes the rules and/or process of the examination?
Issue No.1: Whether the NCTE regulation introduced in accordance with provision of Sub-Section (1) of Section 23 of the Act of 2009 applies in case of minority school aided or unaided Madrasahs? 9 (2020) 6 SCC 689 12
9. In order to examine the aforesaid issue it would be appropriate to reproduce the proposition laid down by the Hon'ble Supreme Court in this context.
9.1. In Pramati Educational and Cultural Trust (supra), the Hon'ble Supreme Court has the occasion to deal with the issue whether the Constitution (93rd Amendment) Act, 93 of 2005 which amends Article 15 by inserting Clause 5 alters the basic structure or framework of the Constitution and is, therefore, illegal, invalid, unconstitutional and ultra vires the constituent power and void. In considering the aforesaid issue the Hon'ble Supreme Court held as follows:-
53. When we examine the 2009 Act, we find that under Section 12(1)(c) read with Section 2(n)(iv) of the Act, an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority is required to admit in Class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. We further find that under Section 12(2) of the 2009 Act such a school shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. Thus, ultimately it is the State which is funding the expenses of free and compulsory education of the children belonging to weaker sections and several groups in the neighbourhood, which are admitted to a private unaided school. These provisions of the 2009 Act, in our view, are for the purpose of providing free and compulsory education to children between the age group of 6 to 14 years and are consistent with the right under Article 19(1)(g) of the Constitution, as interpreted by this Court in T.M.A. Pai Foundation [T.M.A. Pai Foundation v.
State of Karnataka, (2002) 8 SCC 481] and are meant to achieve the constitutional goals of equality of opportunity in elementary education to children of weaker sections and disadvantaged groups in our society. We, therefore, do not find any merit in the submissions made on behalf of the non-minority private schools that Article 21-A of the Constitution and the 2009 Act violate their right under Article 19(1)(g) of the Constitution. 13
54. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no power to force admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions. Moreover, in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225] Sikri, C.J., has even gone to the extent of saying that Parliament cannot in exercise of its amending power abrogate the rights of minorities. To quote the observations of Sikri, C.J. in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225] :
(SCC p. 339, para 178) "178. The above brief summary of the work of the Advisory Committee and the Minorities Sub-Committee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities' rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British plan, the setting up of Minorities Sub-Committee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression „Amendment of the Constitution‟ as empowering Parliament to abrogate the rights of minorities." (emphasis supplied) Thus, the power under Article 21-A of the Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice.
55. When we look at the 2009 Act, we find that Section 12(1)(b) read with Section 2(n)(ii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of 14 members of the minority community which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of Class I children belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India [(2012) 6 SCC 1] insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.
56. In the result, we hold that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-sixth Amendment) Act, 2002 inserting Article 21-A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No. 1081 of 2013 filed on behalf of Muslim Minority Schools Managers' Association is allowed and Writ Petitions (C) Nos. 416 of 2012, 152 of 2013, 60, 95, 106, 128, 144-45, 160 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed. All IAs stand disposed of. The parties, however, shall bear their own costs.
9.2. Thus, the Hon'ble Court in its aforesaid decision held that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-sixth Amendment) Act, 2002 inserting Article 21-A of the Constitution do not alter 15 the basic structure or framework of the Constitution and are constitutionally valid and that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. However, it held that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. 9.3. In a subsequent decision in the case of Anjuman Ishaat E taleem Trust (supra) the Hon'ble Supreme Court respectfully expressed doubt as to whether Pramati Educational and Cultural Trust (supra) insofar as it exempts the application of the RTE Act to minority schools, whether aided or unaided, falling under clause (1) of Article 30 of the Constitution has been correctly decided by observing as follows.
"129. For the reasons discussed above, we hasten to observe with utmost humility at our command that the decision in Pramati Educational and Cultural Trust (supra) might have, unknowingly, jeopardized the very foundation of universal elementary education. Exemption of minority institutions from the RTE Act leads to fragmentation of the common schooling vision and weakening of the idea of inclusivity and universality envisioned by Article 21A. We are afraid, instead of uniting children across caste, class, creed, and community, it reinforces „divides‟ and „dilutes‟ the transformative potential of shared learning spaces. If the goal is to build an equal and cohesive society, such exemptions move us in the opposite direction. What commenced as an attempt to protect cultural and religious freedoms has inadvertently created a regulatory loophole, leading to a surge in institutions seeking minority status to bypass the regime ordained by the RTE Act.
130. It is trite that the State has been entrusted with the responsibility of achieving substantive equality by the framers of the Constitution with the introduction of Articles 14 and 15 of the Constitution. Knit neatly together, they mandate the State to ensure that the inherent inequality in the society is reduced by providing a level playing field to the weak and oppressed members of the society.
131. In the wake of Pramati Educational and Cultural Trust (supra), we are pained to observe that minority status seems to have become a vehicle for circumventing the mandate of the RTE 16 Act. In our humble opinion, it has opened up a situation whereby multiple institutions have sought to acquire minority status to become autonomous. It has also opened the door for potential misuse. Exemption of even aided minority institutions from the framework of the RTE Act has further encouraged the proliferation of minority-tagged schools not necessarily for the preservation of language, script, or culture, but to circumvent statutory obligations. This has distorted the spirit of Article 30(1), which was never intended to create enclaves of privilege at the cost of national developmental goals.
132. We end the discussion by observing that the true impact and legacy of a judicial pronouncement lies not merely in the precision of its reasoning, but by whether it stands the test of time; whether, years after its pronouncement, it continues to respond meaningfully to the problem it set out to address and serve the ends of justice or has failed to do so. The test of such a decision is whether it has alleviated or aggravated the practical challenges it sought to remedy and lived realities it endeavoured to shape. Painfully though, we regret to observe that the ruling in Pramati Educational and Cultural Trust (supra) strikes at the heart of good quality universal elementary education and its consequences are far-reaching."
9.4. Upon expressing doubt regarding the correctness of the ratio in Pramati Educational and Cultural Trust (supra), in paragraph no.210 of Anjuman Ishaat E taleem Trust (supra) the Hon'ble Supreme Court formulated issues for reference to a Larger Bench. The aforementioned paragraph is reproduced hereunder:-
"210. We, therefore, consider it expedient to follow the decision of this Court in Lala Shri Bhagwan v. Shri Ram Chand as well as long-standing subsequent precedents set by decisions of Constitution Benches prior to Aligarh Muslim University (supra) and urge the Hon‟ble the Chief Justice of India to consider the desirability as to whether the issues formulated hereunder, or such other issues as may be deemed relevant, do warrant reference to a larger Bench:
a. Whether the judgment in Pramati Educational and Cultural Trust (supra) exempting minority educational institutions, whether aided or unaided, falling under clause (1) of Article 30 of the Constitution, from the purview of the entirety of the RTE Act does require reconsideration for the reasons assigned by us?17
b. Whether the RTE Act infringes the rights of minorities, religious or linguistic, guaranteed under Article 30(1) of the Constitution? And, assuming that Section 12(1)(c) of the RTE Act suffers from the vice of encroaching upon minority rights protected by Article 30 of the Constitution, whether Section 12(1)(c) should have been read down to include children of the particular minority community who also belong to weaker section and disadvantaged group in the neighbourhood, to save it from being declared ultra vires such minority rights?
c. What is the effect of non-consideration of Article 29(2) of the Constitution in the context of the declaration made in Pramati Educational and Cultural Trust (supra) that the RTE Act would not be applicable to aided minority educational institutions? and d. Whether, in the absence of any discussion in Pramati Educational and Cultural Trust (supra) regarding unconstitutionality of the other provisions of the RTE Act, except Section 12(1)(c), the entirety of the enactment should have been declared ultra vires minority rights protected by Article 30 of the Constitution?"
9.5. It appears that the correctness of the ratio in Pramati Educational and Cultural Trust (supra) insofar as it exempts the application of the RTE Act to minority schools, whether aided or unaided, falling under clause (1) of Article 30 of the Constitution of India is pending before the Hon'ble Supreme Court.
9.6. In Sk. Mohd. Rafique (supra), a writ petition being No. 20650 (W) of 2013 was filed by the Managing Committee of Contai Rahmania High Madrasah before this Hon'ble Court challenging validity of the Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 contending, inter alia, that by virtue of the provisions of the Commission Act, 2008 the process of appointment of teachers in an aided Madrasah which was recognized as a minority institution, was taken over and entrusted to the Commission appointed under Section 4 of the Commission Act, 2008 and the Commission was empowered under the provisions of the 18 Commission Act, 2008 to make recommendations which would be binding on the Managing Committee of an aided Madrasah. It was further contended that the provisions of the Commission Act, 2008 transgressed upon the rights of a minority institution of choosing its own teachers. Such contentions were accepted by the learned Single Judge of the High Court and writ petition was allowed. Aggrieved by such order, an appeal was filed before the Hon'ble Division Bench and the appeal was dismissed by the Division Bench, affirming the view taken by the learned Single Judge. The decision of the learned Single Judge and the Division Bench of the High Court was challenged in the appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court set aside the view of the learned Single Judge and of the Hon'ble Division Bench of the this Court following the decision of eleven-
Judge Bench in T.M Pai Foundation versus State of Karnataka reported in (2002) 8 SCC 481 which dealt with the questions touching upon the rights of the minority educational institutions under Article 29 and 30 of the Constitution and observed as follows:-
"59. In our considered view going by the principles laid down in the decision in T.M.A. Pai Foundation case [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , the provisions concerned cannot, therefore, be said to be transgressing the rights of the minority institutions. The selection of the teachers and their nomination by the Commission constituted under the provisions of the Commission Act, 2008 would satisfy the national interest as well as the interest of the minority educational institutions and the said provisions are not violative of the rights of the minority educational institutions.
60. The aforesaid conclusions have been arrived at by us in keeping with the principles laid down by this Court in T.M.A. Pai Foundation case [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] .
61. We are aware that in Brahmo Samaj Education Society [Brahmo Samaj Education Society v. State of W.B., (2004) 6 SCC 224 : 2 SCEC 618] , Sindhi Education Society [Sindhi Education Society v. State (NCT 19 of Delhi), (2010) 8 SCC 49 : (2010) 2 SCC (L&S) 522 : 3 SCEC 743] and Chandana Das [Chandana Das v. State of W.B., (2020) 13 SCC 411] , decided after T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , this Court had also dealt with the question whether the authorities concerned could validly nominate teachers to be appointed in minority educational institutions. Brahmo Samaj Education Society [Brahmo Samaj Education Society v. State of W.B., (2004) 6 SCC 224 : 2 SCEC 618] did not specifically deal with the question whether rules were valid or not and left it to the authorities to bring the rules and regulations in conformity with the principles in T.M.A. Pai Foundation case [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] . Sindhi Education Society [Sindhi Education Society v. State (NCT of Delhi), (2010) 8 SCC 49 : (2010) 2 SCC (L&S) 522 : 3 SCEC 743] dealt with the issue in the context of reservation. It also found that the teachers nominated by the authorities concerned would not be compatible to teach in educational institutions run by linguistic minorities. In Chandana Das [Chandana Das v. State of W.B., (2020) 13 SCC 411] the basic issue was whether the institution concerned was a minority institution or not. Sindhi Education Society [Sindhi Education Society v. State (NCT of Delhi), (2010) 8 SCC 49 : (2010) 2 SCC (L&S) 522 : 3 SCEC 743] and Chandana Das [Chandana Das v. State of W.B., (2020) 13 SCC 411] dealt with statutory regimes which did not have any special features or matters concerning compatibility of teachers which could be required going by the special characteristics of the minority educational institutions. However, the additional feature in the present matter shows that the composition of the Commission with special emphasis on persons having profound knowledge in Islamic culture and theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of and thus the present case stands on a different footing.
62. We, therefore, have no hesitation in going by the test culled out in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] and hold that the provisions of the Commission Act, 2008 are not violative of the rights of the minority educational institutions on any count.
63. In the premises, while allowing these appeals, we set aside the view taken by the Single Judge and the Division Bench of the High Court and dismiss Writ Petition No.20650(W) of 2013 and other connected matters. We also hold Sections 8, 10, 11 and 12 of the Commission Act to be valid and constitutional.
64. In the end, we declare all nominations made by the Commission in pursuance of the provisions of the Commission Act to be valid and operative. However, if after the disposal of the matters by the High Court any appointments are made by the concerned Madarshas, such appointments of teachers shall be deemed to be valid for all purposes.
But the Commission shall hereafter be competent to select and 20 nominate teachers to various Madarshas in accordance with the provisions of the Commission Act and the Rules framed thereunder." 9.7. It is manifest that the Hon'ble Supreme Court in its aforesaid decision has held that the Commission shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of Commissions Act, 2008 and the rules framed thereunder. It is relevant to note that the West Bengal Madrasah Service Commission introduced West Bengal Madrasah Service Commission Recruitment (Selection, Recommendation of persons for Appointment and Transfer to the posts of teacher and non-teaching staff) Rules 2023 in exercise of power conferred by Section 18 read with Sections 8, 9 and 24 of the West Bengal Madrasah Service Commission Act, 2008 and in supersession of the earlier West Bengal Madrasah Service Commission Recruitment (selection and recommendation of persons for appointment and transfer of teacher and non-teaching staff) Rules 2010. As per Rule 2(xxviii) of the Rules of 2023, Teacher Eligibility Test (in short „TET‟) means Teacher Eligibility Test for Primary and Upper Primary Level covered under these rules conducted by the Commission as per NCTE guidelines. Bearing in mind the decisions of the Hon'ble Supreme Court in Sk. Mohd. Rafique (supra) and the provisions of Rule 2 Sub-Rule (xxviii), the NCTE guidelines squarely applies in respect of TET examination conducted by the Commission.
9.8. Moreover, it is relevant to note that all the petitioners have appeared in the examination without any demur. None of the petitioners have challenged the notification of commission published for holding 7th SLST, 2023 or the Rules of 2023 or the information guidelines on the ground that NCTE 21 guidelines does not apply to Madrasah. In Tusharkanti Banerjee versus State of West Bengal reported in 2001 Supreme (Cal) 779, a Co-ordinate Bench of this Court relying on several decisions of the Hon'ble Supreme Court observed as follows.
"(7) FURTHERMORE, in the instant case, the petitioner intended to challenge the vires of Clause 6 (a) of the Recruitment Rules after being unsuccessful to secure the first position in the panel. The petitioner cannot do such. In the judgment of Omprakash Shukla v. Akhileswar Shukle, reported in (1986) Supp. SCC 285, the point has been decided by the apex Court. It is held by the apex Court in the said case, that a candidate when appeared in any competitive examination, he was expected to know about its Constitution and validity of examination, hence, he cannot assail its Constitution and validity of examination later on. Applying the apex Court judgment, the writ petitioner now cannot challenge this Clause 6 (a) at this present moment as ultra vires, when the petitioner appeared in the selection process and subjected himself for determination of his merit before the selection committee.
Hence, applying the doctrine of estoppel as well as waiver, the petitioner is debarred from challenging the same. Furthermore, there is no foundation regarding such challenge of said Clause 6 (a) of Rules as ultra vires, save and except the contention that higher qualification to be considered upon relying on Clause 6 (b) of said rule. Clause 6 (b) is to be read in context to the Clause 6 (a ). It is now a settled legal proposition that while interpreting the provision of statute, harmonious construction must be made. Taking into account of the Clause 6 (b) in the light of the Clause 6 (a) of Rule 6 of Recruitment Rules, 1995, the contention of the learned Advocate fails. However, learned Advocate for the petitioner submits that Clause 6 (b) will prevail over the Clause 6(a). The contention as made by the learned Advocate for the petitioner in interpretation of the statute cannot be legally accepted in view of the specific provision under Clause 6 (a) with the word 'no' and a mandatory word 'shall'. This point has been considered by the judgment of the Division Bench reported in 1999 (1) CLJ 11 at para 9 wherein it is held that Clause 6 (a) is the determining factor in the matter of allotment of the marks on qualification prescribed. Furthermore, on a bare reading of Clauses 6 (a) and 6 (b), this Court is not finding any dispute about non allotment of the marks in respect of those qualifications as are not prescribed in the prior permission. Clause 6 (b) only provides that selection committee shall assess the recognised qualifications which are relevant to the post from the school level which menas that no qualifications which are not recognised by any Board and/or University would be considered by the Selection Committee. The words in Clause 6 (b) are not in contrast with clause 6 22 (a ). Clause 6 (a) relates to separate provision about allotment of marks directing the members of the Selection Committee to allot marks only in respect of the qualifications which are not above the qualification prescribed by the District Inspector of Schools concerned in the prior permission. Hence, this Court is not finding any conflict in between the Clause 6 (a) and Clause 6 (b) as both the two Clauses are not different issue and in that view of the matter the submission of the learned Advocate for the petitioner that Clause 6 (b) will prevail over Clause 6
(a) has no substance and such contention is accordingly rejected. Bearing in mind the aforesaid proposition of law, it is quite clear that a candidate when appeared in any competitive examination, he was expected to know about its Constitution and validity of examination, hence, he cannot assail its Constitution and validity of examination later on. Thus, the petitioners who appeared in the examination without any objection cannot assail the Constitution and validity of the examination at a later stage. Issue No.2: Whether the evaluation of the Answer Sheets by the Commission of the participating candidates without negative marking contravenes the rules and/or process of the examination?
10. It is not in dispute that the information guidelines for 7th SLST (Assistant Teachers) 2023 in clause No.11 of the Note provides that there will be negative marking for wrong choice of option. One mark will be deducted for every two wrong answers. The booklet of 7th SLST TET, 2023 in the instruction column No.10 also provided that there will be negative marking for wrong choice of option and one mark will be deducted for every two wrong answers. Although such instruction was provided for negative marking in the information guidelines as well as in the instruction of the booklet, however, after declaration of the result on 21st December, 2024, the Commission issued a Notification being WBMSC/7th SLST (AT)/notice 07/2024 on 24th December, 2024, clarifying that there was no negative 23 marking in the evaluation of TET OMR answer-sheet as per NCTE Rules. Now, it is to be examined whether such action actually contravenes the rules and/or process of examination.
10.1 As per the Rules of 2023, the TET Examination is to be conducted by the Commission following NCTE Rules. The NCTE guidelines for conducting Teacher Eligibility Test (TET) under "Structure and Content of TET" in Clause 6 provides that all questions will be multiple choice questions (MCQs), each carrying one mark, with four alternatives out of which one answer will be correct. There will be no negative marking. The examining body should strictly adhere to the structure and content of the TET specified below. Thus, even if the instruction provided by the Commission indicated that there will be negative marking but as per NCTE guidelines in holding TET examination, there cannot be any negative marking. Indisputably this was an error on the part of the Commission to provide instructions that there will be negative marking. Mr. Dhar, learned Senior Advocate appearing for the Commission relying on Ashis Kumar (supra), Employees‟ State Insurance Corporation (supra), Uzair Imran (supra) and Narendra Singh (supra) submitted that where there is a variance between the advertising and statutory rules, the statutory rules will prevail and the mistakes can be corrected.
10.2. In Ashis Kumar (supra) the appellant belonging to Other Backward Caste who graduated (BA) with psychology and has also done post graduation in psychology from Kanpur University and also obtained Masters Degree in Human Resource Management and Industrial Relations from Lucknow University submitted application for the post of psychologist 24 pursuant to an advertisement issued by Director of Social Welfare Department, UP. The appellant was issued admit card for appearing in the written examination. The appellant appeared and was declared successful and included in the merit list. By a letter dated 2nd May, 2003 the appellant was asked to appear along with original certificates for verification of documents. The appellant appeared along with all the documents. He was informed that he was not eligible and his appointment for the post of Psychologist cannot be made. In such factual backdrop, the Hon'ble Supreme Court observed as follows:-
"27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is statutory rules which take precedence. In this context, reference is made in judgment of this Court in the case of Malik Mazhar Sultan & Anr. Vs. U.P. Public Service Commission & Ors., 2006 (9) SCC 507. Paragraph 21 of the judgment lays down above proposition which is to the following effect:
"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 01.07.2001 and 01.07.2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisements but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only of permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."25
10.3. In Employees‟ State Insurance Corporation (supra) the respondents 3 to 25 joined as Assistant Professors at ESIC Model Hospital, Rajajinagar, Bengaluru. They joined service between 7.2.2012 and 26.6.2014. The recruitment and promotion of its teaching staff were governed by the Employees' State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations, 2015 ("the ESIC Recruitment Regulations, 2015") which came into effect on 5.7.2015. The Central Government, through the Central Health Service Division of the Ministry of Health and Family Welfare, issued the DACP scheme through an Office Memorandum dated 29.10.2008. The DACP scheme contemplated promotion as Associate Professor upon completion of two years of service in the post of Assistant Professor as an officer under the Ministry of Health and Family Welfare. After two years of service as Assistant Professor on 2.2.2017, the contesting respondents sought promotion under the DACP scheme and instituted proceedings before the Central Administrative Tribunal ("CAT"), Bengaluru. On 7.2.2018, CAT relied on the submission by the counsel for the appellant and held that the ESIC Recruitment Regulations, 2015 were not relevant for adjudication of the matter. CAT also relied on a letter dated 23.9.2014 addressed by the Joint Director of ESIC to the Dean of ESIC which mentioned the implementation of the DACP scheme to the Medical Officer Cadres. Thus, CAT directed the appellant to consider the contesting respondents for promotion under the DACP scheme. The appellant challenged the order of CAT in a writ petition before the High Court of Karnataka. The High Court dismissed the petition on 5.9.2019 [ESI Corpn. v. Union of India, 2019 SCC 26 OnLine Kar 3519]. The order was challenged before the Hon'ble Supreme Court which observed as follows:
"20. The advertisements issued by the appellant mentioned that the DACP scheme would be applicable for its recruits. However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. In Malik Mazhar Sultan v. U.P. Public Service Commission [Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 : 2006 SCC (L&S) 1870] ("Malik Mazhar Sultan") a two-Judge Bench of this Court clarified that an erroneous advertisement would not create a right in favour of applicants who act on such representation. The Court considered the eligibility criteria for the post of Civil Judge (Junior Division) under the U.P. Judicial Service Rules, 2001 against an erroneous advertisement issued by the U.P. Public Service Commission and held : (SCC p. 512, para 21) "21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."
21. In Ashish Kumar v. State of U.P. [Ashish Kumar v. State of U.P., (2018) 3 SCC 55 : (2018) 1 SCC (L&S) 464] a two-Judge Bench of this Court followed the decision in Malik Mazhar Sultan [Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 : 2006 SCC (L&S) 1870] in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant recruitment rules and held : (Ashish Kumar case [Ashish Kumar v. State of U.P., (2018) 3 SCC 55, para 27 : (2018) 1 SCC (L&S) 464] , SCC p. 64, para 27) "27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the 27 advertisement and in the statutory rules, it is the statutory rules which take precedence."
22. The contesting respondents urged that the advertisements indicated the applicability of the DACP scheme before the ESIC Recruitment Regulations, 2015 were issued. However, a subsequent amendment to the Recruitment Regulations would override the conditions prescribed in the advertisement. In Rajasthan Public Service Commission v. Chanan Ram [Rajasthan Public Service Commission v. Chanan Ram, (1998) 4 SCC 202 : 1998 SCC (L&S) 1075] a two-Judge Bench of this Court held that an earlier advertisement becomes infructuous after a subsequent amendment to the service rules : (SCC p. 212, para 13) "13. Under these circumstances, therefore, it is difficult to appreciate how the Division Bench [Chanan Ram v. State of Rajasthan, 1997 SCC OnLine Raj 28] of the High Court could persuade itself in agreeing with the submission of the learned counsel for the respondent-writ petitioner that despite this change of cadres and the provision for recruitment on new posts the old advertisement of 5-11-1993 Annexure P-1 seeking to consider the candidature of applicants for erstwhile 23 advertised vacancies in the posts of Assistant Directors (Junior) in the Agricultural Marketing Service of the State of Rajasthan would still be pursued further and recruitment should be effected for these 23 erstwhile vacancies as per the old advertisement. It is easy to visualise that even if such an earlier advertisement of 5-11-1993 was proceeded with further it would have resulted into a stalemate and an exercise in futility. No appointment could have been given to the selected candidates to the posts of Assistant Directors (Junior) after the 1995 Amendment of the Rules as there were no such posts in the hierarchy of State Service. Consequently it must be held that on account of the amendments to the Rajasthan Agricultural Marketing Service Rules the earlier advertisement dated 5-11-1993 had become infructuous and otiose. Only on this short ground the writ petition of the respondent-writ petitioner should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge." 10.4. In Uzair Imran (supra) the Superintendent of Post Office, Kheri requisitioned from the District Employment Officer, Lakhimpur Kheri a list of eligible candidates for the purpose of recruitment of 10 (ten) Postal Assistants in Lakhimpur Kheri postal division for the year 1995. As per the requisition, the candidates were required to have 28 qualified in the intermediate examination from the Uttar Pradesh Intermediate Education Council, Allahabad or equivalent. Apart from such requisition, applications were also invited through an advertisement dated 12.6.1995. All the respondents therein, among other candidates, participated in the selection process. The names of the respondents figured quite high in the merit list and they were attached to the Kheri Post Office for 15 days pre-induction training starting from 15.3.1996. The same was to be followed by a long-term training. However, the Chief Post Master General sent a letter to various Postmasters General regarding recognition of educational qualification of 10+2/Intermediate from the vocational stream for direct recruitment. It was informed that certificates issued by the Board of High School and Intermediate Education should be admitted unless "these are marked as vocational stream or vocational". This led to holding back of the respondents, who were not sent for long-term training. This resulted in the litigation. In such factual backdrop the Hon'ble Supreme Court observed as hereunder.
"19. It is true that neither in the letter dated 17-4-1995 requisitioning names of eligible candidates from the Employment Exchange nor in the advertisement dated 12-6-1995 inviting applications from eligible candidates was it mentioned that the candidates clearing the requisite examination conducted by a recognised University or Board through vocational stream would stand excluded. However, nothing much turns on it. Law is well-settled that if qualifications mentioned in an advertisement inviting applications are at variance with statutorily prescribed qualifications, it is the latter that would prevail. Profitable reference in this connection may be made to the decisions of this Court in Malik Mazhar Sultan v. U.P. Public Service Commission [Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 :
2006 SCC (L&S) 1870] and Ashish Kumar v. State of U.P. [Ashish Kumar v. State of U.P., (2018) 3 SCC 55 : (2018) 1 SCC (L&S) 464]"29
10.5. In Narendra Singh (supra) the respondent therein was working as Accountant in the Office of the Accountant General, Madhya Pradesh, Branch Office Bhopal. By an order dated 1.1.1990 he was mistakenly promoted as Senior Accountant (Functional). After about four years, the Department realised that the promotion given to the respondent was erroneous and he was not eligible to be promoted. The mistake was, therefore, sought to be corrected. A notice under Rule 31-A of the Fundamental Rules, 1922 was issued to the respondent informing him that he could not have been promoted as Senior Accountant as he had not passed departmental examination of Accountants as required by law. He was, hence, asked to show cause why the promotion given to him erroneously should not be cancelled. After considering the reply submitted by the respondent, the Principal Accountant General, vide his order dated 29-3-1994, cancelled the promotion. The respondent filed a petition before the Tribunal which directed for reconsideration. The Department upon reconsideration rejected the prayer of the respondent. The respondent again challenged the order of reversion by approaching the Tribunal and the Tribunal allowed the petition. The order was confirmed by the High Court. The said decision was challenged in the appeal by the Union of India and the Accountant General. In such factual backdrop the Hon'ble Apex Court observed as follows:
"32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan [(1997) 6 SCC 766] it was held that if erroneous promotion is given by wrongly interpreting 30 the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.
33. As observed by us, statutory rules provide for passing of departmental examination and the authorities were right in not relaxing the said condition and no fault can be found with the authorities in insisting for the requirement of law. In the circumstances, the action of the authorities of correcting the mistake cannot be faulted."
10.6. Upon going through the above propositions laid down in the decisions of the Hon'ble Apex Court it is manifest that any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. In the case at hand the advertisement contained that there would be negative marking for two wrong answers. Be that as it may, recruitment to the service can only be made in accordance with the Rules. The NCTE rules in clear terms provide that there should not be any negative marking in TET examination. The aspect of negative marking in the advertisement of 7th SLST 2023 was an error. Law is well settled, error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate. Mistakes are mistakes and they can always be corrected by following due process of law. Thus, bearing in mind the propositions of Hon'ble Apex Court as reproduced hereinabove, there cannot be any manner of doubt that the subsequent notification dated 24th December, 2024 of the Commission informing all concerned that that there was no negative marking in evaluation of TET OMR Answer Sheets in TET (Arabic) for Classes I-IV and TET (Arabic & Advance Arabic) for Classes V- VIII as per NCTE Rules, does not contravenes the rules rather it followed the NCTE rules which excludes negative marking in the TET examination. 31 10.7. It has been vociferously argued on behalf of the petitioners relying on Mohd. Sohrab Khan (supra) and Tej Prakash Pathak (supra) that the rule of game cannot be changed once the game is started. The subsequent withdrawal of negative marking is change in rule of the examination which is not all sustainable. In this context it is relevant to note that the Commission is statutorily bound to follow NCTE rules which did not allow negative marking. Indisputably, such NCTE rules was very much existent on the date of advertisement of 7th SLST 2023. Therefore, it cannot be said that there is any change in rule. Rather the rule has been followed by the Commission in not applying negative marking in the TET examination during evaluation as per NCTE guidelines.
10.8. It has also been strenuously argued on behalf of the petitioners that had there been no indication of negative marking they would have attempted more question and got higher marks. Be that as it may, such argument is not acceptable for the simple reason that the evaluation without negative marking was equally applied to all the candidates and therefore such action of the Commission cannot be said to be discriminatory. Once again it is reiterated that the advertisement cannot override the Rules and create a right in favour of a candidate.
11. In view of the above discussion, the aforementioned writ petitions fall short of merit.
12. Accordingly, the writ petitions being WPA 688 of 2025, WPA 3120 of 2025, WPA 3414 of 2025 and WPA 611 of 2025 stands dismissed.
13. Interim order, if any, stand vacated.
14. All connected applications, if any, stand disposed of. 32
15. Urgent photostat certified copy of the order if applied for be given to the parties upon compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)