Calcutta High Court (Appellete Side)
Tauhid Alam & Another vs West Bengal Central School on 5 September, 2009
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
05.09.08 W. P. NO. 22720(W) OF 2007
Tauhid Alam & Another
- Versus -
West Bengal Central School
Service Commission & Others
Mr. Amal Baran Chatterjee,
Mr. Animesh Goswami,
Mr. Abdul Alim,
Md. Habibur Rahaman
.... For the Petititoner.
Mr. Kallol Basu,
Mr. Sudip Bhattacharjee
.... For the State.
Mr. Abhijit Ganguly,
Mr. Kaushik Banerjee
.... For the Respondent Nos. 1, 2, 4 & 5.
TAPAN KUMAR DUTT, J.
Heard the Learned Advocates for the respective parties. The facts of the case, very briefly, are as follows:-
The petitioners have filed the writ petition challenging Rule 5 of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2006 and 2007 as ultra vires the Constitution of India and for direction upon the authority concerned to publish the results of the petitioner for the year 2006 and to give appointment to the petitioners in the posts in question and not to cancel the panel concerned. The petitioners' case is that the petitioner No.1, born on 17th June, 1972, passed his B.A. (Hons.) Part-I Examination in Urdu in 1994 and the Part-II examination in 1995 from Calcutta University and also passed the M.A. Examination from the said University in the year 1997. The petitioner No.2, born on 29th April, 1970, passed B.A. (Hons.) Part-I Examination in Urdu in 1990 and Part-II Examination, 1991 from the said University. According to the petitioners, in the Madhyamik syllabus there is no provision for any third language as a subject and, therefore, the question of taking up for study any third language at the secondary level does not arise at all. The petitioners' case is that in the syllabus of the Secondary Education, Madrasah Education Board, ICSC and CBSE there is no provision for any third language and there is no elective or compulsory third language as a subject. The petitioners at all material points of time had Urdu as the first language and English as the second language. An advertisement dated 12.07.2006 was published in The Statesman, Siliguri edition, dated 14th July, 2006 in respect of the 7th Regional Level Selection Test which was scheduled to be held on 12.11.2006 for preparing the panel of Assistant Teachers in Recognized Non-
Government aided Junior High/ High/Higher Secondary Schools/ Madrasahs and Sr. Madrasahs in West Bengal against the vacancies available as per West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2006. The petitioners are concerned with posts in Hons./PG Category. Clause 2 of the said advertisement reads as follows:-
"2. Medium of Institution: Vacancies are mainly in Bengali Medium Schools/ Madrasahs. Candidates applying for School/ Madrasahs with particular language as medium must have that language of the medium as first or second or third language on Secondary Level of the West Bengal Board of Secondary Education/West Bengal Board of Madrasahs Education or from any equivalent Board or at Higher Secondary Level of the West Bengal Council of Higher Secondary Education or from any Equivalent Board/ Council or must have succeeded at any subsequent higher level of education in that language paper."
As per the said advertisement there were four vacancies in respect of the subject Urdu in the Northern Region. The petitioners challenged the said advertisement dated 12.07.2006 by way of a writ petition being W.P. No. 18495(W) of 2006. An Hon'ble Single Judge of this Court by order dated 10.08.2006 was pleased to admit the writ petition and observe that if the petitioners succeed then the Commission and other respondents shall permit the petitioners to take the examination. His Lordship was further pleased to make it clear that if the petitioners are otherwise entitled to obtain forms and apply, then they will be at liberty to collect the forms and apply and if the applications for taking the examination are submitted by the petitioners then the Commissioner shall process them subject to the result of the writ petition. It appears that the said School Service Commission preferred an appeal, against the said order, being MAT No. 3424 of 2006 and by order dated 07.09.2006 the Hon'ble Division Bench was pleased to dismiss the said appeal and close the stay application. The petitioners applied for the post of Assistant Teacher in language group for Urdu and the petitioners appeared at the written test and passed the said test and was called for the personality test but the results were not published and have also not been published as yet. The said writ petition being W.P. No. 18495(W) of 2006 came up for final hearing and an Hon'ble Single Judge of this Court was pleased to observe inter alia : "The admitted position is that the petitioners did not question the validity of the rule. It is apparent from the provisions of r.5 that for getting appointment in Bengali medium schools as Urdu (H/PG) teachers they were required to possess the requisite qualification with Bengali as first or second or third language at any of the examinations mentioned therein. Admittedly, in none of the examinations they took Bengali was their first or second or third language. Hence I find that counsel for the commission is absolutely right in saying that the condition mentioned in the employment notice was not illegal, and that, in view of the existing rules, the petitioners were not eligible to apply for Bengali medium schools, though they were at liberty to apply for Urdu and English medium schools, since they had both Urdu and English as their language papers at the examinations they took." His Lordship was pleased to dismiss the said writ petition.
The said Commissioner published another advertisement dated 04.10.2007 (published in The Statesman, Calcutta, 6th October, 2007) for holding the 8th Regional Level Selection Test which was scheduled to be held on 22.12.2007 for preparing the panel of Assistant Teachers. The petitioners have alleged that the petitioners are challenging the said Rules of 2006 but in the meantime the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 (hereinafter referred to as the Rules of 2007) have come into existence and, accordingly, both the Rules of 2006 and the Rules of 2007 have been challenged by the petitioners as illegal and against the fundamental rights of the petitioners and also ultra vires of the Constitution of India.
Petitioners' case is that the criteria prescribed by the Respondent No.1 with regard to 'Medium of Instruction in the Institution' is absolutely illegal, arbitrary and suffers from non-application of mind in as much as there is no subject of 'third language' in the secondary level of the West Bengal Board of Secondary Education or in the West Bengal Board of Higher Secondary Education. According to the petitioners, the subject of third language under the West Bengal Board of Secondary Education is only upto class 8 and is discontinued from class 9 onwards and there is no such subject in the Higher Secondary level. According to the petitioners, Rule 5 of the aforesaid Rules cannot be sustained in law and is liable to be struck down as illegal and ultra vires. The petitioners have stated in their writ petition that under the West Bengal Board of Secondary Education if a candidate chooses any vernacular language, other than English, as his/her first language then he/she has to compulsorily take English as his/her second language there being only two languages in the group. To substantiate such statement the petitioners have annexed a copy of the notification dated 30.05.2005 issued by the West Bengal Board of Secondary Education.
Rule 5 of the said Rules of 2006 and Rules of 2007 are as follows :-
(A) Rule 5 of the said Rules of 2006.
Additional qualification of candidate. - A candidate willing to be selected as a Teacher in any school, having Bengali or English or Hindi or Nepali or Telegu or Santhali or Urdu as the medium of instruction, must have Bengali or English or Hindi or Nepali or Telegu or Santhali or Urdu as first or second or third language -
(a) at secondary level of the Board or Board of Madrasah or equivalent; or
(b) at higher secondary level of the Council or equivalent, or
(c) at any subsequent higher level of education in that language paper.
(B) Rule 5 of the said Rules of 2007 Additional essential qualification of candidate. - A candidate willing to be selected as a Teacher in any School or Madrasah, having Bengali or English or Hindi or Nepali or Oriya or Santhali or Telegu or Urdu as the medium of instruction, must have Bengali or English or Hindi or Nepali or Oriya or Santhali or Telegu or Urdu, as the case may be, as first or second or third language at any of the Secondary or Higher Secondary or Graduation level -
(a) at Secondary level of the Board or Board of Madrasah or equivalent; or
(b) at Higher Secondary level of the Council or equivalent; or
(c) at any subsequent higher level of education in that language paper.
The Learned Counsel for the petitioners submitted that the Urdu language is very much in vogue as would appear from Annexure P-2 of the supplementary affidavit affirmed by the petitioner No.1 on 17th December, 2007. The said Learned Counsel submitted that the said Rule 5 of the said Rules of 2006 and of 2007 are ultra vires the Constitution of India and the said Rule should be struck down. The said Learned Counsel submitted that the petitioners are also entitled to be considered for appointment as Assistant Teachers in Schools having Bengali as the medium of instruction. The said Learned Counsel referred to the aforesaid Rule 5 of the Rules of 2006 and submitted that it was only treated as an additional qualification and not an essential qualification. But it appears from Rule 5 of the said Rules of 2007 that the word essential has been inserted in the heading of the said Rule. However, in the substantive part of the said Rules the words 'must have' appear to indicate that it is an essential qualification. The said Learned Counsel submitted, by referring to Annexure P- 10 to the writ petition, that in the relevant Examination of the West Bengal Board of Secondary Examination one is entitled to take Bengali or English or Urdu, amongst other languages, as the first language; if any language other than English is offered as a first language, then in that event one has to compulsorily take English as the second language. It further appears from the said Annexure P-10 that if English is chosen as the first language then Bengali or Nepali can be taken as the second language. The Learned Counsel further submitted that there is no provision for any third language. According to the said Learned Counsel the petitioners having offered Urdu as the first language, they were under a compulsion to take English as the second language and there was no scope for taking up Bengali as a subject in the language group. The said Learned Counsel submitted that the said Rule 5 of the aforesaid Rules of 2006 and 2007 is wholly unreasonable, arbitrary and suffers from a total non-application of mind.
The said Learned Counsel referred to a judgement reported at (1986) 1 C.H.N. 340 (Samijan Bewa - vs. - Revenue Officer, Lalgola) and referred to paragraph 6 of the said reports in support of his submission that the said Rule 5 should be not only be consistent with the statute but it must also be reasonable. Paragraph 6 is quoted below:-
"6. It was observed in Bernard Schwartz's 'Administrative Law' at page 151 that Ultra vires doctrine is of particular importance in the field of rule making. Agency power to make rules extends no further than the authority given by the relevant statutory delegation. On review, the court will determine whether the challenged rules are within the power conferred ...................'. At page 152 of the book it was observed that "But even a rule which deals with the subject matter within the agency's del'gated authority may be invalid if it is arbitrary or unreasonable, not only must a regulation, in order to be valid, be consistent with the statute, it must be reasonable. The validity of a regulation will be sustained only if it is 'reasonably related to the purpose of enabling legislation.' It is for the court to say whether or not there is a rational relationship between a particular regulation and governing statute." It is also stated in the Craies on Statute Law (Sixth Edition) at page 324 that "There are five main grounds on which the by-laws may be treated as ultra vires ......................(c) That they are repugnant to the statute under which they are made, (d) That they are uncertain, (e) That they are unreasonable". Lord Russell CJ. In the case of Kruse v Johnson reported in (1898) 2 Q. C 91 at 99 said : Unreasonable in what sense ? If, for instance, they (the bye-laws) were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclose bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. But it is in this sense in this sense only, as I conceive, that the question of reasonableness can properly be regarded ......................".
The next decision cited by the said Learned Counsel is the one reported at A.I.R. 1992 Calcutta 203 (Sahadev Sarkar - vs. - State of West Bengal and others). Reference was made to paragraph 12 of the said reports. An Hon'ble Single Judge of this Court, in the said reports, was pleased to hold, by referring to the case reported at A.I.R. 1978 Supreme Court 597 (Smt. Maneka Gandhi - vs. - Union of India), that the concept of reasonableness has been considered by the Hon'ble Supreme Court as it is the real test for validation of any enactment.
The next judgement cited by the said Learned Advocate is the one reported at (2007) 6 Supreme Court Cases 668 (Bidhannagar (Salt Lake) Welfare Assn. - vs. - Central Valuation Board and others) in support of his proposition that when there is a substantive unreasonableness in the statute then in that event it has to be declared as unconstitutional and if a fair procedure has not been laid down then the validity of the Rule and/or the law concerned cannot be upheld. According to the said Learned Advocate the aforesaid Rule 5 of the Rules of 2006 and 2007 are violative of Articles 14, 16 and 21 of the Constitution of India.
The Learned Counsel for the respondent Nos. 1, 2, 4 and 5 submitted that the aforesaid Rules of 2006 have been superseded by the aforesaid Rules of 2007 and therefore the Rules of 2006 cannot be challenged by the writ petitioner at this stage. There is no dispute that after the said Rules of 2006, the aforesaid Rules of 2007 have come into existence but the said Rule 5 of both the aforesaid Rules remain more or less the same and one cannot lose sight of the fact that the petitioners had applied for the post of Assistant Teachers in connection with an advertisement in this regard which was published in the year 2006 when the Rules of 2006 were in force. In any event, the petitioners have challenged both the Rules of 2006 and the Rules of 2007 in the present writ petition. Thus, the point raised on behalf of the respondent Nos. 1, 2, 4 and 5 is without any substance.
The Learned Advocate appearing on behalf of the State respondents referred to Section 8 and Section 17 of The West Bengal School Service Commission Act, 1997. Section 8 of the said Act of 1997 stipulates, inter alia, that the manner and scope of selection of persons for appointment to the posts of Teachers shall be such as may be prescribed. Section 17 of the said Act of 1997 stipulates that the State Government may, by notification, make Rules for carrying out the purposes of the Act and such Rules may provide for the manner and scope of selection of persons for appointment to the post of teachers under Sub-section 1 of Section 8. The said Learned Advocate submits that the aforesaid Rule 5 of the aforesaid Rules of 2006 and 2007 became part of the statute and thus without challenging the parent statute the sole challenge against the Rule 5 is not sustainable particularly when there is no contradiction and/or inconsistency between the Section of the said statute and the Rule.
The next point argued by the said Learned Advocate for the state- respondents was that none of the paragraphs in the writ petition depicts the manner in which there has been transgression of powers by the authority concerned by insertion of the aforesaid Rule 5. According to the said Learned Advocate the relevant question in the present case would be as to whether the laying down of the qualification for the purpose of selection to the post of Assistant Teacher by the delegatee is excessive or not.
According to the said Learned Advocate another question the court has to consider is whether the aforesaid Rule 5 is procedurally ultra vires or substantively ultra vires, if it is held to be ultra vires at all.
The said Learned Advocate submitted that it is true that there is no provision for any third language at the Madhyamik, Higher Secondary and/or Graduation level but the petitioners can apply for being appointed as Assistant Teachers in Urdu Medium Schools and/or English Medium Schools. The said Learned Advocate also submitted that the said post of Assistant Teachers are not only open to the candidates who have passed their Madhyamik and/or Higher Secondary Examination under the West Bengal Board but it is also open to other candidates who may have passed their examinations under different Boards in different parts of the country. Having said this, the said Learned Advocate, of course, did not cite any example of any Board Examination whether there is a provision for any third language.
The Learned Advocate for the State-respondents cited a decision reported at (2008) 2 Supreme Court Cases 254 (Karnataka Bank Ltd. - vs. - State of Andhra Pradesh and others and other cases) and referred to paragraph 19 of the said reports wherein the Hon'ble Supreme Court was pleased to hold that "There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; "to doubt the constitutionality of a law is to resolve it in favour of its validity". Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. (See State of Bombay v. F.N. Balsara1.) "
The said Learned Counsel referred to another judgement reported at 1982 (1) Supreme Court Cases 39 (Bishambhar Dayal Chandra Mohan and others -
vs. - State of Uttar Pradesh and others and other cases) in support of his submission that even if there are restrictions such restrictions cannot be challenged if they are reasonable. In paragraph 37 of the said reports the Hon'ble Supreme Court was pleased to observe as follows:-
"37. It is now well settled that the regulatory measures or measures imposing compensatory taxes do not come within the purview of the restrictions contemplated by Article 301. The regulatory measures should, however, be such as do not impede the freedom of trade, commerce and intercourse. It cannot be said that the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are a "restriction" on the freedom of trade, commerce and intercourse within the country, i.e., across the State or from one part of the State to another. These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another. Even if these requirements are construed to be a "restriction" on the inter-State or intra-State trade, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature. Nor can it be said that such restrictions do not satisfy the test of reasonableness."
The said Learned Counsel referred to a decision reported at (2004) 4 Supreme Court Cases 646 (M.P. Rural Agriculture Extension Officers Association - vs. - State of M.P. and another) and referred to paragraphs 13 to 16 of the said reports. The said paragraphs 13 to 16 are quoted below:-
"13. Pay Commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-à-vis the educational qualifications required therefor. Although the Pay Commission is considered to be an expert body, the State in its wisdom and in furtherance of a valid policy decision may or may not accept its recommendations. The State in exercise of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. The State in terms of the said provision is also entitled to give a retrospective effect thereto. A policy decision had been adopted by the State that the post of Extension Officers shall be filled up only by graduates. Such a policy decision ex facie cannot be termed to be arbitrary or irrational attracting the wrath of Article 14 of the Constitution of India. A dying scale was provided by the State for the non-graduates. Fresh recruitments were to be made only from amongst the persons who held the requisite educational qualification. With a view to avoid any discrimination between the new recruits and the serving employees who possessed the same qualification, the State cannot be said to have acted illegally in granting a higher scale of pay also for the existing degree-holders.
14. Article 14, it is trite, does not forbid a reasonable classification.
15. Article 14 forbids class legislation but permits reasonable classification subject to the conditions that it is based on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieved. (See Saurabh Chaudri v. Union of India11.)
16. Constitutional interpretation is a difficult task. Its concept varies from statute to statute, fact to fact, situation to situation and subject-matter to subject-matter. A classification based on educational qualification has been applied by a Constitution Bench of this Court as far back as in 1968 in P. Narasinga Rao7 wherein it was observed: (AIR p. 351, para 4) "It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule. As we have already stated, Articles 14 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Article 16 is only an instance of the application of the general rule of equality laid down in Article 14 and it should be construed as such. Hence, there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured; Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection." "
The said Learned Advocate also referred to a decision reported at (1974) 1 Supreme Court Cases 19 (The State of Jammu and Kashmir - vs. - Shri Triloki Nath Khosa and others) and referred to paragraphs 34, 35 and 57 of the said reports. The said paragraphs 34, 35 and 57 of the said reports are quoted below:-
"34. On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. The provision in the 1939 Rules restricting direct recruitment of Assistant Engineers to Engineering graduates, the dearth of graduates in times past and their copious flow in times present are all matters which can legitimately enter the judgment of the rule-making authority. In the light of these facts, that judgment cannot be assailed as capricious or fanciful. Efficiency which comes in the trail of higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunities to these possessing higher educational qualifications. And we are concerned with the reasonableness of the classification, not with the precise accuracy of the decision to classify nor with the question whether the classification is scientific. Such tests have long since been discarded. In fact American decisions have gone as far as saying that classification would offend against the 14th Amendment of the American Constitution only if it is "purely arbitrary, oppressive or capricious"
(7) and the inequality produced in order to encounter the challenge of the Constitution must be "actually and palpably unreasonably and arbitrary". (8) We need not go that far as the differences between the two classes -- graduates and diploma-holders -- furnish a reasonable basis for separate treatment and bear a just relation to the purpose of the impugned provision.
35. Educational qualifications have been recognized by this Court as a safe criterion for determining the validity of classification. In State of Mysore v. P. Narasing Rao, (9) where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with a higher scale of pay and the other of non-matriculates in a lower scale, it was held that Arts. 14 and 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications. In Ganga Ram v. Union of India (10), it was observed that "The State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments." In The Union of India v. Dr. (Mrs.) S. B. Kohli, (11) a Central Health Service Rule requiring that a professor in Orthopaedics must have a post-graduate degree in the particular speciality was upheld on the ground that the classification made on the basis of such a requirement was not "without reference to the objectives sought to be achieved and there can be no question of discrimination". The argument that a degree qualification was not the only criterion of suitability was answered laconically as 'strange'.
57. Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. If in this case Government had prescribed that only those degree holders who had secured over 70 per cent marks could become Chief Engineers and those with 60 per cent alone be eligible to be Superintending Engineers or that foreign degrees would be preferred we would have unhesitatingly voided it."
The said Learned Advocate referred to another decision reported at (1996) 3 Supreme Court Cases 709 (State of A.P. and others - vs. - Mcdowell & Co. and others) and referred to some portion of paragraph 43 of the said reports. In paragraph 43 of the said reports the Hon'ble Supreme Court was pleased to observe inter alia that "A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness -
-- concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety."
The next decision cited by the Learned Advocate is the one reported at (SC; Suppl.) 2008 (2) CHN 157 (State of Arunachal Pradesh - vs. - Nezone Law House, Assam) and reference was made to paragraph 11 of the said reports which is quoted:-
"11. As Professor Wade points out (in Administrative Law by H.W.R. Wade, 6th Edition) there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power. Nor is the test Court's'own standard of reasonableness as it might conceive it in a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise."
The Learned Advocate appearing on behalf of the petitioner cited a decision while giving his reply to the submissions of the Learned Advocates for the respondents. He cited a decision reported at A.I.R. 1960 Supreme Court 430 (Narendra Kumar and others - vs. - The Union of India and others) and referred to paragraph 6 of the said reports. In paragraph 6 of the said reports the Hon'ble Supreme Court was pleased to observe inter alia "it was also contended that as the petitioners have not challenged the validity of the Essential Commodities Act and have admitted the power of the Central Government to make an order to exercise of the powers conferred by S. 3 of the Act it is not open to the Court to consider whether the law made by the Government in making the non-ferrous metal control order and in specifying the principles under Cl. 4 of the order violate any of the fundamental rights under the Constitution. It is urged that once it is found that the Government has power under a valid law to provide for regulating or prohibiting the production, supply and distribution of an essential commodity and trade and commerce therein as soon as it is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of the essential commodity or for securing its equitable distribution and availability at fair prices, the order made by them can be attacked only if it is outside the power granted by the section or if it is mala fide. Mala fides have not been suggested and we are proceeding on the assumption that the Central Government was honestly of opinion that it was necessary and expedient to make an order providing for regulation and prohibition of the supply and distribution of imported copper land trade and commerce therein. So long as the Order does not go beyond such provisions the Order, it is urged, must be held to be good and the consideration of any question of infringement of fundamental rights under the Constitution is wholly beside the point. Such an extravagant argument has merely to be mentioned to deserve rejection. If there was any reason to think that S. 3 of the Act confers on the Central Government power to do anything which is in conflict with the Constitution
-- anything which violates any of the fundamental rights conferred by the Constitution, that fact alone would be sufficient and unassailable ground for holding that the section itself is void being ultra vires the Constitution. When, as in this case, no challenge is made that S. 3 of the Act is ultra vires the Constitution, it is on the assumption that the powers granted thereby do not violate the Constitution and do not empower the Central Government to do anything which the Constitution prohibits. It is fair and proper to presume that in passing this Act the Parliament could not possibly have intended the words used by it, viz., "may by order provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce in," to include a power to make such provisions even though they may be in contravention of the Constitution. The fact that the words "in accordance with the provisions of the articles of the Constitution" are not used in the section is of no consequence. Such words have to be read by necessary implication in every provision and every law made by the Parliament on any day after the Constitution came into force. It is clear therefore that when S. 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity it gives such power to make any regulation of prohibition in so far as such regulation and prohibition do not violate lany fundamental rights granted by the Constitution of India."
The next decision cited by the Learned Advocate for the petitioners is the one reported at A.I.R. 1978 Supreme Court 597 (Smt. Maneka Gandhi - vs. - Union of India and another) and reference was made to paragraphs 56 and 68 of the said reports. In paragraph 56 of the said reports the Hon'ble Supreme Court was pleased to observe inter alia that "Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits." In the said paragraph the Hon'ble Supreme Court was further pleased to observe "Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article
14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied." In paragraph 68 of the said reports the Hon'ble Supreme Court was pleased to observe "The pith and substance theory was thus negatived in the clearest terms and the test applied was as to what is the direct and inevitable consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that in a given case the pith and substance of the State action may deal with a particular fundamental right but its direct and inevitable effect may be on another fundamental right and in that case, the State action would have to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the object and subject-matter of the State action but in testing the validity of the State action with reference to fundamental rights, what the Court must consider is the direct and inevitable consequence of the State action. Otherwise, the protection of the fundamental rights would be subtly but surely eroded."
The Learned Advocate for the petitioners submitted that the word "Board" and the word "School" have been defined in the said Act of 1997. The "Board" means the West Bengal Board of Secondary Education established under the West Bengal Board of Secondary Education Act, 1963. It will also appear that the word "Council" has been defined in the said Act of 1997 and the said expression means the West Bengal Council of Higher Secondary Education established under Section 3 of the West Bengal Council of Higher Secondary Education Act, 1975. The said Learned Advocate refers to Explanation I to Section 2(n) of the said Act of 1997 wherein the meaning of the word "Recognised" has been given. Section 2(n) including the Explanation I is quoted below:-
"2.(n) "school" means a recognised non-Government aided -
(i) secondary school, or educational institution, or part or department of such school or institution, imparting instruction in a secondary education, or
(ii) higher secondary school, or educational institution (other than a college), or part or department of such school, institution, imparting instruction in higher secondary education, or
(iii) Madrasah, and includes a sponsored school.
Explanation I. - "Recognised" with its grammatical variations, used with reference to a school, shall mean -
(a) recognised or deemed to have been recognised under the West Bengal Board of Secondary Education Act, 1963, or
(b) recognised under the West Bengal Council of Higher Secondary Education Act, 1975, or
(c) recognised or deemed to have been recognised under the West Bengal Board of Madrasah Education Act, 1994."
The said Learned Advocate cited the said provisions of law in support of his submission that the matter in question was restricted to the State of West Bengal and the candidate has to be qualified from any of the Schools concerned in West Bengal. The Learned Advocate for the petitioner placed before this Court a copy of Clause B of the Information Brief For The Candidates Of Regional Level Selection Test For Appointment to the Posts of Assistant Teacher in Recognised non-Govt. Aided Schools/Madrasahs and submitted that it will appear from the said Clause B that there was no necessity for having Bengali as a language paper. The said Learned Advocate referred to paragraphs 20, 21, 28, 31 and 33 and also to some of the grounds taken in the writ petition in support of his submission that relevant averments have been made and grounds have been taken in the writ petition with regard to the petitioners' case that the said Rule 5 of the Rules of 2006 and 2007 is ultra vires the Constitution of India.
Having heard the Learned Advocates for the respective parties and having considered the materials on record this Court is of the view that the said Rule 5 of the said Rules of 2006 and 2007 suffers from a non-application of mind. As submitted by the Learned Advocate for the petitioners, by referring to Annexure P-10 to the writ petition, that since the petitioners had Urdu as the first language, the petitioners were bound to take English as the second language and there was and/or is no provision for any third language in the relevant examination under the Board, it appears to this Court that such submission is correct. It may be recorded here that the Learned Advocate for the State- respondents could not dispute such submission of the Learned Advocate for the petitioners. This being the situation it was not possible for the petitioners to pursue the subject Bengali as a language paper under the relevant examination of the said Board. From the relevant advertisements it appears that the vacancies were/are mainly in Bengali Medium Schools/Madrasahs. The petitioners had applied for the post of Assistant Teacher in the Urdu language group and therefore the petitioners were definitely required to have the necessary qualification in the Urdu language. Since the petitioners had Urdu as the first language in the relevant Board Examinations, the petitioners were compelled to take English as the second language and there being no provision for any third language, the petitioners could not have pursued the Bengali language as a subject in the said Board Examinations. Thus, if any one who had pursued his studies under the West Bengal Board and intends to apply for the post of Assistant Teacher in the subject Urdu, such person can never get an appointment in a school where the medium of instruction is Bengali if the said Rule 5 has to be given effect to. If this is the resultant effect of giving effect to Rule 5 of the said Rules of 2006 and 2007 then the whole purpose of the said advertisement is frustrated. At least, persons who have pursued their studies under the West Bengal Board with Urdu as first language and English as Second language (under compulsion) cannot apply for the post of Assistant Teacher in the Urdu language in any of such schools excepting only the schools where Urdu or English is the medium of instruction. This is bound to prejudice a very large and wide section of the society.
The Learned Advocates appearing on behalf of the respondents have not disputed the fact that the provisions of the said Act of 1997 and the Rules framed thereunder, that is, the said Rules of 2006 and 2007 were/are applicable to the facts and circumstances of the instant case. If such is the undisputed position in so far as the applicability of the relevant statute is concerned, then one has to apply the meaning of the words "Board", "Council" and "School", as already indicated above, to the facts and circumstances of the instant case. If such application of the meanings of the said words are made to the facts and circumstances of the instant case then in that event the said Rule 5 of the said Rules of 2006 and 2007 cannot be given effect to and the whole purpose of the said advertisement will be rendered useless. It appears that the said Rule 5 does not take into consideration the realities of the situation.
In Bidhannagar (Salt Lake) Welfare Association's case (supra) the Hon'ble Supreme Court has been pleased to hold that when a substantive unreasonableness is to be found in a statute, it may have to be declared as unconstitutional. In the said case, it was further held that where a fair procedure has not been laid down, the validity of such procedure cannot be upheld.
In Samijan Bewa's case (supra) the Hon'ble Court was pleased to take note of the relevant principle that even when a rule which deals with the subject matter within the agency's delegated authority may be invalid if it is arbitrary or unreasonable, not only must regulation, in order to be valid, be consistent with the statute, it must be reasonable and that the validity of a regulation will be sustained only if it is reasonably related to the purpose of enabling legislation.
In Sahadev Sarkar's case (supra) the Hon'ble Court also relied upon the principle that the concept of reasonableness is the real test for validation of an enactment.
It is true that under Section 8(1) of the said Act of 1997 the provision has been made that the manner and scope of selection of persons for appointment to the post of teachers shall be such as may be prescribed and Section 17 of the said Act of 1997 also provides that the State Government may, by notification, make rules for carrying out the purposes of the Act and that such rules may provide for the manner and scope of selection of persons for appointment to the posts of teachers under Section 8(1), but such power cannot mean that the authorities can frame rules which are wholly unreasonable and/or in violation of the fundamental rights guaranteed in the Constitution of India. The argument advanced by the Learned Advocate for the State respondents that since there is no challenge to the parent statute itself, the said Rule 5 cannot be challenged under the law, is not acceptable to this court. Simply because the provision of a statute has given the power to the authority concerned to frame rules for a certain purpose, it cannot mean that the said authority concerned can act arbitrarily and frame arbitrary and unreasonable rules.
The argument advanced by the Learned Advocate for the state respondents that the relevant question in the present case would be as to whether the laying down of the qualification for the purpose of selection to the posts of assistant teacher by the delegatee is excessive or not, is also not acceptable to this Court since the said argument does not answer the real question that is involved in the present dispute, that is, whether or not, the said Rule 5 is arbitrary and unreasonable and in violation of any of the fundamental rights guaranteed under the Constitution of India.
The other question raised by the Learned Advocate for the State- respondents as to whether the said Rule 5 is procedurally ultra vires or substantively ultra vires, if it is held to be ultra vires at all, is without any useful purpose in the facts and circumstances of the instant case. To deal with such question, in the facts and circumstances of the instant case, would only be an academic exercise.
In State of A.P. and others' case (supra) the Hon'ble Supreme Court was pleased to observe inter alia that the said Hon'ble Court does not wish to enter into the discussion of the concepts of procedural unreasonableness and substantive unreasonableness and that it is enough to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned by the Hon'ble Supreme Court in the said reports, that is, (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in part III of the Constitution or of any other constitutional provision.
The Learned Advocate for the State respondents has clearly submitted that it is true that there is no provision for any third language at the Madhyamik, Higher Secondary and/or Graduation level and that the posts of assistant teachers are not only open to the candidates who have passed their relevant examinations under the West Bengal Board but it is also open to other candidates who may have passed their examinations under different Boards in different parts of the country. Such submissions of the Learned Advocate for the State-respondents lend support to the submissions made on behalf of the petitioners that the said Rule 5 is arbitrary and in violation of the provisions of Article 14 of the Constitution of India.
In view of the discussions made above this court holds that the said Rule 5 of 2006 and 2007 is ultra vires the Constitution of India on the ground that it violates the provisions of Article 14 of the Constitution of India and the said Rule 5 is wholly unreasonable. Thus it is hereby declared that the said Rule 5 of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2006 and Rule 5 of West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 are declared to be ultra vires the provisions of Article 14 of the Constitution of India and the respondents are restrained from giving any further effect to the said Rule 5.
Since there is no dispute with regard to the fact that the petitioners had already appeared in the relevant Regional Level Selection Test held in 2006 and were successful in the written test and had also appeared in the personality test but the results have not yet been declared (as stated in paragraph 15 of the writ petition) and also since by this order the said Rule 5 of the said Rules of 2006 and 2007 have been declared to be ultra vires the Constitution of India, the respondent authorities concerned shall now publish the results of the said Regional Level Selection Test held in 2006, in so far as the petitioners are concerned, and without giving any effect to the said Rule 5 of the said Rules of 2006 and 2007 shall consider as to whether or not the petitioners are eligible to get appointment in the said posts of assistant teachers. If, without giving any effect to the said Rule 5 of the said Rules of 2006 and 2007, the respondents authorities concerned find that the petitioners are and/or any of the petitioners is eligible to get appointment to the aforesaid post(s) of assistant teacher(s), then in that event the respondents authorities concerned shall act accordingly in accordance with law for the purpose of giving appointment(s) to the petitioner(s) in the said post(s) of assistant teachers if vacancy/vacancies exist in respect of the said post(s).
The writ petition is thus disposed of. There will, however, be no order as to costs.
Urgent Xerox certified copy of this order, if applied for, be given to the parties on compliance of usual formalities.
( TAPAN KUMAR DUTT, J. ) Later:-
After the above judgement has been delivered, the Learned Advocate for the respondent No. 1, 2, 4 & 5 prays that the operation of the above judgement should be stayed for two weeks and a duly certified plain copy of the above judgement should be supplied to the said Learned Advocate.
Considering such prayer, there shall be stay of operation of the above judgement for a period of two weeks and let a plain copy of this judgement duly counter-sighed by the Assistant Registrar (Court) be handed over to all the Learned Advocates for the respective parties.
( TAPAN KUMAR DUTT, J. )