NONREPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NOs.1381013817 OF 2021

RAJIB HALDER & ORS. …Petitioner (s)

Versus

THE STATE OF WEST BENGAL & ORS. …Respondent(s)

WITH

SPECIAL LEAVE PETITION (C) NOs.1487614905 OF 2021 SPECIAL LEAVE PETITION (C) NOs.1537015374 OF 2021 SPECIAL LEAVE PETITION (C) NOs.1680116803 OF 2021 SPECIAL LEAVE PETITION (C) NOs.1517115173 OF 2021 SPECIAL LEAVE PETITION (C) NO.19088 OF 2021 SPECIAL LEAVE PETITION (C) NO.16699 OF 2021 SPECIAL LEAVE PETITION (C) NO.312 OF 2022 SPECIAL LEAVE PETITION (C) NO.313 OF 2022 GULSHAN KUMAR SPECIAL LEAVE PETITION (C) NO.5671 OF 2022 ARORA

SPECIAL LEAVE PETITION (C) NOs.63056306 OF 2022

O R D E R

V. RAMASUBRAMANIAN, J.

(1) Aggrieved by the dismissal of a batch of appeals arising out of the dismissal of writ petitions challenging their nonappointment to the post of Assistant Teachers in Secondary and Higher Secondary Schools in the State of West Bengal, the candidates who participated in the selection have come up with these special leave petitions.

(2) We have heard the learned counsel for the parties and the learned standing counsel for the respondentState.

(3) The brief facts necessary for the disposal of these special leave petitions are as follows:

(i) By a notification issued in the last week of December 2011, the West Bengal Central School Service Commission notified the initiation of the process of selection for appointment of 6891 Teachers.

(ii) Subsequently, by a Notification dated 28.12.2011, the Governor of West Bengal sanctioned 39510 additional posts of teachers, distributed among 20 districts of the State of West Bengal. This sanction was for the purported maintenance of pupilteacher ratio in Primary Schools and Senior High Schools/Higher Secondary Schools. All these posts were directed to be filled up as per the qualifications and procedure prescribed in the relevant recruitment rules.

(iii) Pursuant to the above order, the West Bengal Central School Service Commission issued an advertisement dated 29.12.2011 inviting applications from eligible candidates for participation in what was termed as the 12th Regional Level Selection Test, to be held for preparing a panel of Assistant Teachers in recognized nonGovernment aided Junior High/High/Higher Secondary Schools.

(iv) It appears that some candidates who claimed to have been selected on the basis of the minimum qualification specified in the previous Notification dated 25.08.2010 of National Council for Teachers' Education (NCTE) had approached this Court with a writ petition in WP (C) No.173 of 2010 and it was pending. Therefore, another writ petition was filed by West Bengal Unemployed Trained Teachers Association in WP (C) No.94 of 2012. In the said writ petition, this Court ordered the issue of notice on 2.04.2012 and directed the same to be tagged with WP (C) No.173 of 2010.

(v) Fortunately there was no prohibition for the respondents to proceed with the conduct of the test and hence TET and subject test were held on 29.07.2012 and 02.09.2012 respectively. While the results of TET were published on 1.12.2012, the results of the subject test were published on 06.08.2013.

(vi) But in the meantime the High Court of Calcutta passed an order on 7.02.2013 in WP No.1019 of 2013, at the behest of candidates who claimed to have been selected with the minimum qualification specified in the notification dated 25.08.2010 of NCTE. The said order was clarified by further order dated 08.04.2013.

**(vii)**However, the combined merit list and final merit list were published on 25.09.2013 and the first phase of counselling began on 1.10.2013.

(viii) At that stage, this Court passed an interim order dated 25.02.2014 in a batch of writ petitions, WP (C) No.94 of 2012 and others seeking certain details from the Service Commission and the State. After those details were furnished, this Court disposed of all the writ petitions by an Order dated 04.12.2014 transferring all the writ petitions to the Calcutta High Court with a request to the High Court to decide all the matters expeditiously.

(ix) Accordingly the writ petitions were taken up by a learned Judge. By a final order dated 26.08.2020, all the writ petitions were dismissed.

(x) Appeals were filed against the order of the learned Single Judge, but those appeals were dismissed by the division bench of the High Court by a final order dated 12.01.2021. Petitions seeking a review of the said order were also dismissed on 19.03.2021 and hence the candidates are before us in these special leave petitions.

(4) Admittedly the original Notification was for recruitment to 6891 posts. By the Notification dated 29.12.2011, 39510 additional posts were sanctioned, taking the total tally to 46401 posts.

(5) TET was conducted on 29.07.2012 and its results were published on 1.12.2012. The subject test was conducted on 2.09.2012 and the results thereof were published on 06.08.2013.

(6) As per the order of the High Court, interviews were conducted from 28.08.2013 and the combined merit list was published on 25.09.2013. The counselling commenced on 01.10.2013 and it continued till JuneJuly2014.

(7) A second combined merit list was published on 24.02.2014 containing the names of less number of candidates than those included in the merit list dated 25.09.2013. This list was claimed by the Central Commission to be the panel from out of which appointments were to be made. This was what was challenged by the petitioners as contrary to law and the challenge was repelled by the learned Single Judge as well as the Division Bench.

(8) A careful perusal of the records shows that the dispute actually lies in figures and not on facts. These figures, as provided by the Commission, have been extracted by the Division Bench of the High Court, which if presented, would put the entire controversy in a narrow compass, but right perspective. Hence it is reproduced as follows:

• "a) Total no. of final vacancies 46,401
• b) Total no. of applications received 7,14,825;
• c) Total no. of valid applications 7,02,475;

d) Total no. of candidates who appeared in the examination 5,70,911;

e) Total no. of candidates who qualified in PartIl (TET) 1,73,638;

f) Total no. of answer scripts of the subject test (PartI) evaluated 173,638;

g) Total no. of candidates who obtained the qualifying marks in subject test (Part1) 36,602;

h) Total no. of candidates called for Personality Test 36,602;

• i) Total no. of candidates who appeared in the Personality Test 36,140;
• j) Total no. of candidates empanelled 29,575;"

(9) The actual grievance of the petitioners is that though the total number of vacancies, for the filling up of which the selection was held, was 46401, the respondents eventually empanelled only 29575 candidates, that too after empanelling more than about 36000 candidates in the first instance. According to the petitioners, the respondents have done so, by increasing the bench mark/bar after releasing the first merit list and that, therefore, this is a case of the respondents changing the rules of the game after the game commenced.

(10) But the above argument is wholly unsustainable. The fundamental principle of service jurisprudence is that it is not necessary for the Government to fill up all the posts for which notification was issued. It requires no legal expertise to accept the proposition that no one has a fundamental right to be appointed to a civil post/service. The right that an individual has is only for consideration for selection.

(11) Though the petitioners attempted to make a mountain out of a molehill, the long and short of the story is that after notifying 46401 vacancies, the respondents first empanelled about 36000 candidates and later reduced the size of the panel to 29575. All the learned counsel for the petitioners agreed that they have no right to seek a direction to the respondents to fill up all the posts notified, though some of the counsel attempted to argue that after the advent of the Right of Children to Free and Compulsory Education Act, 2009, schools are obliged to maintain pupil teacher ratio and that, therefore the candidates have a vested right to seek the filling up of all vacancies. But the said contention is very shallow, since the right conferred by the said Act is upon the children to education and not upon the teachers to seek appointment.

(12) None of the petitioners who went before the High Court ever contended that any candidate who secured lesser marks than them

8

got included in the final panel comprising of 29575 persons. This means that the first panel of the size of 36140 candidates merely got shrunk, without violating the rule of merit or seniority. Once this aspect is not disputed, it should have taken no time for any Court to throw the petitions out of Court.

(13) Relying upon a statement made by the respondents, it was sought to be contended that the size of the original panel got shrunk because of the increase of the bar/bench mark and that therefore the same tantamount to changing the rules of the game. But this contention is wholly unsustainable. To shrink a panel of a larger size to a panel of a smaller size, some rational parameter should be followed. The respondents followed the parameter of merit. To say that this amounts to changing the rules of the game is actually abhorring.

(14) Detailed arguments were sought to be made on the basis of certain provisions of the West Bengal School Service Commission (Selection of persons for appointment to the post of Teachers) Rules, 2007. Though those arguments are liable to be rejected outright, we would still consider them in view of the fact that it is a 10 year old litigation.

9

(15) Rule 2(1)(f) of the aforesaid Rules defines the word "panel" as follows:

"(f) "panel" means a list published by the Commission for Schools and for Madrasahs separately containing the names of candidates equal to number of vacancies declared for a Regional Level Selection Test found fit for appointment strictly in order of merit ;"

(16) Rule 7 which prescribes the manner of selection of a teacher

reads as follows:

"7. Manner of selection of Teacher.(1) Selection to the post of the Teacher shall be made on the basis of the results of the Regional Level Selection Test comprising written examination conducted by the Central Commission, evaluation of qualifications and personality tests of the candidates in the manner as specified in Schedule II.

(2) The Central Commission may, in its discretion, fix qualifying marks, to be scored by the candidates in written examination or in aggregate or, in both and relax the qualifying marks on reasonable grounds for reasons to be recorded in writing."

(17) The procedure for selection of candidates and preparation of

panel is elaborated in Rule 12 which reads as follows:

"12. Selection of candidates and preparation of panel for the posts of Assistant Teacher. (1) The Secretary of every Regional Commission shall arrange for proper custody of all form of applications which may be received by it against the vacancies within its territorial jurisdiction.

(2) All Regional Commissions shall prepare a list of eligible candidates and shall forward a copy of the application forms received by them within their territorial jurisdiction to the Central Commission for the purpose of preparation of a computer generated database of all the candidates of the State and issuance of admit cards for written examination.

(3) The Regional Commission shall arrange written examination under the supervision and control of the Central Commission.

(4) The Central Commission shall determine number of papers for written examinations, contents of each paper, duration of examination and other matters relating to the Regional Level Selection Test.

(5) The Central Commission shall decide the procedure and the manner of conducting the Regional Level Selection Test by the respective Regional Commissions and shall issue detailed instructions in this regard in accordance with the provisions of the Act and the rules made thereunder:

Provided that the Central Commission shall hold a meeting with the Chairpersons of the Regional Commissions before the instructions are issued.

(6) After the evaluation of the answer sheet of the written examination, each Regional Commission shall prepare a subjectwise, mediumwise, categorywise and genderwise list of the candidate, who shall be qualified for personality test on the basis of the marks obtained by him in the written examination and evaluation of academic qualification (to be calculated on the basis of statement made in regard to academic qualification by a candidate at the time of submission of the application form) taken together :

Provided that the number of qualified candidate to

be called for the personality test shall not exceed 1.5 times the number of actual vacancies published at the time of declaration of the result of written examination :

Provided further that if the marks at the last position of the qualified list of candidates shall be same for more than one candidate, all such candidates at that position shall be called for the personality lest.

(7) After preparation of the list of qualified candidate, each Regional Commission shall call the candidates for personality test through registered post or speed post mentioning the date, time and venue of personality test :

Provided that the candidate can also obtain such information through the website of the Commission and from the Offices of Central Commission and the concerned Regional Commissions.

(8) Each Regional Commission shall, on the basis of the. marks obtained in the written examination, evaluation of the academic qualification as stated in subrule (6) and marks obtained in the personality test, all added together, and on the basis of the guidelines issued by the Central Commission prepare

(a) a panel of candidates found fit for appointment to the posts of Assistant Teacher, strictly in order of merit and each such panel shall include names equal to the number of vacancies referred to in subrule (1) of rule 8, and (b) a waiting list:

Provided that there may be separate mediumwise, subjectwise, categorywise or genderwise sets of panel or waiting list, as may be necessary, for Pass or Honours/PostGraduate category of vacancies, as may be decided by the Central Commission from time to time.

(9) If more than one candidate obtain the same aggregate (total marks) the merit position of the candidates shall be determined according to their date of birth, i.e., candidates with earlier date of birth shall be preferred and if the aggregate and date of birth shall also be same, the candidates obtaining higher academic score shall be preferred and if the aggregate, date of birth and academic score shall be same, the candidates obtaining higher marks in written examination shall be preferred.

(10) The Central Commission shall publish such panel and waiting list of candidates in the website of the Commission, the Offices of the concerned Regional Commissions as well as the Offices of the respective District Magistrates."

(18) On the basis of the aforesaid provisions, it was contended that the High Court failed to appreciate what a panel was and that the School Commission wrongly invoked Rule 7(2) to a case not concerning relaxation of qualifying marks. It is also contended that subRule (8) of Rule 12 was not properly appreciated.

(19) At the outset it should be pointed out that there is no rule which states that a person whose name is included in the panel should invariably be appointed. The definition of the word "panel" shows that "panel" is nothing but a list containing the names of as many candidates as there are vacancies. Rule 12(8) contemplates the preparation of a panel as well as a waiting list. The words used in Rule 12(8)(a) are "a panel of candidates found fit for appointment". Merely because a person is found fit for appointment, he cannot compel the respondents to appoint him, unless he is able to demonstrate that less meritorious candidates have been appointed. Therefore, the entire foundation of the case of the petitioners is shallow.

(20) Interestingly, there are some special leave petitions forming part of this batch, which are filed by candidates who did not approach the High Court. It is these candidates who have now come up with a stand for the first time that less meritorious candidates have been included in the final panel.

(21) These candidates have chosen to come to Court for the first time in the year 2021, in respect of a selection of the year 2011. These are fence sitters who have jumped into the bandwagon after a decade.

(22) It was contended by the learned counsel for such petitioners who never approached the High Court that they were granted leave by this Court to file special leave petitions against the impugned order. But the grant of leave does not mean that they are granted a free license to assail the judgment of the High Court on the basis of new facts.

(23) In any case, these petitioners who have chosen to come to this Court directly after 10 years, have not even impleaded the so called less meritorious candidates who have been selected.

(24) In view of the above, all the Special Leave Petitions are completely devoid of merits and are liable to be dismissed. Accordingly, the Special Leave Petitions are dismissed. No costs.

....…………....................J. (Indira Banerjee)

…..………......................J.

(V. Ramasubramanian)

JULY 21, 2022 NEW DELHI

ITEM NO.8 COURT NO.7 SECTION XVI

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).13810-13817/2021

(Arising out of impugned final judgment and order dated 12-01-2021 in MAT No. 721/2020 12-01-2021 in MAT No. 722/2020 12-01-2021 in MAT No. 723/2020 12-01-2021 in MAT No. 724/2020 19-03-2021 in RVW No. 22/2021 19-03-2021 in RVW No. 23/2021 19-03-2021 in RVW No. 24/2021 19-03-2021 in RVW No. 25/2021 passed by the High Court at Calcutta)

RAJIB HALDER & ORS. Petitioner(s)

VERSUS

THE STATE OF WEST BENGAL & ORS. Respondent(s)

([ at 11.00 a.m. on 21.07.2022.] IA No. 9247/2022 - APPLICATION FOR PERMISSION IA No. 112319/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No.120982/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ ANNEXURES IA No. 112318/2021 - PERMISSION TO FILE LENGTHY LIST OF DATES)

WITH

SLP(C) No. 14876-14905/2021 (XVI) (FOR PERMISSION TO FILE LENGTHY LIST OF DATES ON IA 119803/2021 FOR ADDITION / DELETION / MODIFICATION PARTIES ON IA 136938/2021 FOR APPLICATION FOR PERMISSION ON IA 13065/2022)

SLP(C) No. 15370-15374/2021 (XVI) (FOR PERMISSION TO FILE LENGTHY LIST OF DATES ON IA 123368/2021 FOR ADDITION / DELETION / MODIFICATION PARTIES ON IA 137051/2021 FOR APPLICATION FOR PERMISSION ON IA 13058/2022 IA No. 13058/2022 - APPLICATION FOR PERMISSION IA No. 123368/2021 - PERMISSION TO FILE LENGTHY LIST OF DATES)

SLP(C) No. 16801-16803/2021 (XVI) ( FOR PERMISSION TO FILE LENGTHY LIST OF DATES ON IA 119417/2021 FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 119420/2021 FOR DELETING THE NAME OF PETITIONER/RESPONDENT ON IA 136975/2021 FOR APPLICATION FOR PERMISSION ON IA 13064/2022)

SLP(C) No. 15171-15173/2021 (XVI) (FOR PERMISSION TO FILE LENGTHY LIST OF DATES ON IA 122001/2021 FOR ADDITION / DELETION / MODIFICATION PARTIES ON IA 137016/2021 FOR APPLICATION FOR PERMISSION ON IA 12996/2022)

SLP(C) No. 19088/2021 (XVI)

(FOR PERMISSION TO FILE LENGTHY LIST OF DATES ON IA 138330/2021 FOR PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES ON IA 138331/2021 FOR APPLICATION FOR PERMISSION ON IA 25642/2022) SLP(C) No. 16699/2021 (XVI) (FOR FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 122244/2021 FOR PERMISSION TO FILE LENGTHY LIST OF DATES ON IA 122245/2021 FOR EXEMPTION FROM FILING AFFIDAVIT ON IA 122247/2021 IA No. 122247/2021 - EXEMPTION FROM FILING AFFIDAVIT) SLP(C) No. 312/2022 (XVI) (IA No. 156268/2021 - PERMISSION TO FILE LENGTHY LIST OF DATES) SLP(C) No. 313/2022 (XVI) (IA No. 162316/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 162315/2021 - PERMISSION TO FILE LENGTHY LIST OF DATES) SLP(C) No. 5671/2022 (XVI) (IA EXEMPTION FROM FILING AFFIDAVIT ON IA 38958/2022 FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 38959/2022) SLP(C) No. 6305-6306/2022 (XVI) (FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 35634/2022) Date : 21-07-2022 These matters were called on for hearing today. CORAM : HON'BLE MS. JUSTICE INDIRA BANERJEE HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN For Petitioner(s) Mr. Shamim Ahammed, Adv. Mr. Supratik Sarkar, Adv. Ms. Anindita Mitra, AOR Mr. Ranjit Kumar, Sr. Adv. Mr. Bikash Ranjan Bhattacharya, Sr. Adv. Mr. Rauf Rahim, AOR Mr. Ali Asghar Rahim, Adv. Mr. Arup Banerjee, AOR Mr. Prakash Sharma, Adv. Mr. Sanjeev Sharma, Adv. Mr. R.K. Dey, Adv. Mr. Prakrati, Raj, Adv. For Respondent(s) Mr. Sudhansu Palo, AOR Ms. Madhumita Bhattacharjee, AOR Mr. Anant, Adv.

Mr. Kunal Vajani, Adv. Mr. Kunal Mimani, AOR Mr. Pranav Malhotra, Adv. Mr. Manish Kumar Saran, AOR Ms. Manisha T. Karia, AOR Ms. Sukhda Kalra, Adv. Ms. Nidhi Nagpal, Adv. Mr. Adavsh Kumar, Adv.

UPON hearing the counsel the Court made the following O R D E R

Heard learned counsel for the parties.

The special leave petitions are dismissed in terms of the signed order. No costs.

Pending applications, if any, shall stand disposed of.

(MANISH ISSRANI) (MATHEW ABRAHAM) COURT MASTER (SH) COURT MASTER (NSH) (SIGNED ORDER IS PLACED ON THE FILE)