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2025 DAILYLAW 3168 (CAL)

Malati Ghosh v. State of West Bengal

2025-07-18

Apurba Sinha Ray, Soumen Sen

body2025
JUDGMENT : Soumen Sen, J. 1. The appeal is arising out of an order passed by the learned Single Judge on 10th July, 2025 in a writ petition in which the prayer of the writ petitioner for consideration of their candidature in terms of a recruitment notification dated 30th May, 2025 being Memo No.1092/7-16/CSSC/ESTT/2025 was rejected. 2. The petitioners are admittedly over-aged candidates, as a result whereof they could not submit their application in terms of the aforesaid recruitment notification. 3. Mr. Samim Ahammed, the learned Advocate representing the appellants/petitioners has submitted that the petitioners are not coming either under the category of tainted or untainted candidates as classified by the Hon’ble Supreme Court in the judgment dated 3rd April, 2025 passed by Civil Appeal arising out of Special Leave Petition (C) No.9586 of 2024 (State of West Bengal vs. Baishakhi Bhattacharyya (Chatterjee). 4. It is submitted that the petitioners are having no grievance relating to the benefit of relaxation granted to the untainted and differently abled candidates of 1st State Level Selection Test, 2016 (1st SLST 2016)in Class IX-XII hereinafter referred to. Mr. Samim has submitted that by initiating fresh recruitment process on the basis of the recruitment notification dated 30th May, 2025 recruitment are now required to be made only in respect of post earmarked for 1st SLST 2016, however, vacancies declared in the new recruitment process covers further vacancies which subsequently arose and the clubbing up of these vacancies are not permissible as it is against the spirit and direction of the judgement of the Hon’ble Supreme Court dated 3rd April, 2025 passed in Baisakhi Bhattacharyya (supra). 5. The relaxation of upper age limit as prescribed in paragraph 49 of the aforesaid judgment would also be applicable to the present writ petitioners who have acquired requisite qualification in the meantime but could not be considered under the present recruitment process of 2025 by reason of over-age. The stand on the same footing as untainted candidates protected by the Hon’ble Supreme Court in paragraph 49 of the said judgment. It is submitted that in view of the fact that they became eligible in the meantime and by reason of the entire recruitment process became held up due to various proceedings they cannot be deprived of the benefit of age relaxation and the State as well as the Commission are obliged to consider their candidature by relaxation of age. It is submitted that in view of the fact that they became eligible in the meantime and by reason of the entire recruitment process became held up due to various proceedings they cannot be deprived of the benefit of age relaxation and the State as well as the Commission are obliged to consider their candidature by relaxation of age. 6. The learned Counsel has referred to an order passed in the earlier round of litigation being WPA No.24394 of 2024 decided on 12th November, 2024 to argue that the learned Single Judge in the said proceeding held that the writ petition is pre-mature and hence this present writ application ought to have been decided in the background of the development that have taken place in the meantime and culminated in the order passed by the Hon’ble Supreme Court on 3rd April, 2025. It is submitted that the declaration of further vacancies and not giving any relaxation to the writ petitioners/appellants are unjustified and arbitrary. The State and the Commission are responsible for the delay in the recruitment process thereby creating a hurdle and impediment to the appellants who became eligible in the meantime. Had there been any recruitment proceeding initiated in the meantime or soon after 2016 they would have been eligible to participate. This is an unfair and arbitrary conduct of the respondent authorities. 7. The learned Counsel has placed reliance on the decision of the Delhi High Court in Sachin & Ors. vc. Anurag Sharma & Ors., 2023 SCC Online Del 1545  paragraph 12 and a decision of the Hon’ble Supreme Court in High Court of Delhi v. Devina Sharma, 2022 (4) SCC 643 in support of his contention. 8. Mr. Ahmed, has submitted that the ratio laid down in the aforesaid decisions are applicable in the present case and the benefit of relaxation of age bar should be extended to them. 9. The said prayer is opposed on behalf of the State as well as the West Bengal Central School Service Commission (in short WBCSSC). 10. Mr. Sirsarnya Bandyopadhyay the learned Standing Counsel appearing on behalf of the state has submitted that the power of the State to fix the eligibility criteria and deciding on the number of vacancies have already been decided by a Co-ordinate Bench in which one of us (Soumen Sen J.) in MAT 1017 of 2025 Arunima Paul & Ors. 10. Mr. Sirsarnya Bandyopadhyay the learned Standing Counsel appearing on behalf of the state has submitted that the power of the State to fix the eligibility criteria and deciding on the number of vacancies have already been decided by a Co-ordinate Bench in which one of us (Soumen Sen J.) in MAT 1017 of 2025 Arunima Paul & Ors. vs. State of West Bengal & Ors., and MAT 1026 of 2025 Bibek Paria & Ors. vs. State of West Bengal & Ors., both decided on 16th July, 2025. Mr. Bandyopadhyay has drawn our attention to the paragraphs 32 and 33 of the judgment in Arunimal Paul (supra) to show the circumstances in which judicial review of a policy decision is permissible. It is further submitted that if the argument of Mr. Samim Ahammed is accepted then different candidates would have different cut off dates to be considered for their eligibility based on the certificates obtained subsequent to 1st SLST, 2016. Moreover almost all of them have completed 45 years of age. The recruitment process initiated under the new set of Rules, 2025 has not been challenged by the petitioners. 11. Mr. Bandyopadhay has referred to the decision of the Hon’ble Supreme Court in Hirandra Kumar v. High Court of Judicature at Allahabad & Ors., 2020 (17) SCC 401 paragraphs 21 and 28 to submit that on similar facts the Hon’ble Supreme Court has refused to grant age relaxation and other benefits to similarly placed candidates. 12. Mr. Biswaroop Bhattacharyya, the learned Counsel appearing on behalf of the WBCSSC has adopted the argument of Mr. Bandyopadhyay and has submitted that the writ petitioners are not entitled to receive any benefit of paragraph 49 of the judgment of the Hon’ble Supreme court in Baisakhi Bhatacharyya (supra) dated 3rd April, 2025 and the coordinate Bench decision in Arunima Paul (supra). 13. The issue raised is required to be decided on the basis of the submission made on behalf of the parties. 14. The appellants did not participate in the 1st SLST 2016. According to their own admission they have acquired eligibility criteria for participation in the new Recruitment Rules 2023 subsequent to the 1st SLST 2016. It is correct that the entire recruitment process of 2016 was vitiated by fraud and corruption and the respondents have issued a notification on 30th May, 2025 for fresh recruitment of the Assistant Teacher for Class IX-XII. It is correct that the entire recruitment process of 2016 was vitiated by fraud and corruption and the respondents have issued a notification on 30th May, 2025 for fresh recruitment of the Assistant Teacher for Class IX-XII. The said Rules have laid down certain eligibility criteria. However, in the aforesaid recruitment process two categories of candidates who had participated in the earlier recruitment process have been allowed in view of the direction of the Hon’ble Supreme Court in Baishakhi (supra) in the concluding paragraphs and more particular in paragraph 49 of the said judgment. 15. It is clear from the reading of the said paragraphs that differently abled candidates and untainted candidates who have lost their job have been extended with the benefits of age relaxation. In so far as the other criteria laid down in the Rules of 2025 are concerned we have discussed the said issue in detail in Arunima Paul (supra). As rightly pointed out by Mr. Bandopadhyay the cut-off date may appear to be arbitrary as they might exclude some candidates, which by itself will not make the recruitment process bad. In Hirendra Kumar (supra) while determining the cut-off date it has been observed in paragraph 21: “21. The legal principles which govern the determination of a cut off date are well settled. The power to fix a cut-off date or age- limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut-off or age-limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. In order to declare that a cut-off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.” 16. In order to declare that a cut-off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.” 16. The choice of date cannot be said to be arbitrary even if not particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark and the choice of the date for advertising the post are dependent on several factors, namely, the number of vacancies in different disciplines, the need to fill up the post, the availability of candidates just to mention a few [see. Paragraph 23 of Hirendra Kumar (supra) which has quoted with approval the decision in Ramji Prasad: 1990(3) SCC 368 ]. 17. The writ petitioners claimed that they are victim of circumstances and the court should rollback the date with reference to which attainment of upper age limit should be considered. The respondents have clearly justified the choice of the date for the purpose of the eligibility criteria. As observed in Hirendra Kumar (supra) the validity of the rule cannot be made to depend on cases of individual hardship which inevitably arises in applying of principle of general application. Essentially the determination of cut-off date lies in relm of policy. A court in the exercise of power of judicial review does not take over the function for itself [See. Paragraph 27 of Hirendra Kumar (supra)] 18. In Arunima Paul (supra) we have discussed the limited jurisdiction of constitutional courts in exercising the power of judicial review in policy matters. 19. In High Court of Delhi (supra) relied upon by Mr. Ahammed has also reiterated the principle that prescription of rule providing for minimum/maximum age for entry to service is essentially a policy matter. The Hon’ble Supreme court had taken into consideration that Constitution is silent with regard to prescription of minimum age. In absence thereof, in the exercise of Rule making power authority is entitled to prescribe the minimum and eligibility criteria. 20. The said matter relates to eligibility to recruitment for appointment of higher judicial service. The grievance of the writ petitioners in the aforesaid matter is summarised in paragraph 4 of the judgments which reads as follows: “4. In absence thereof, in the exercise of Rule making power authority is entitled to prescribe the minimum and eligibility criteria. 20. The said matter relates to eligibility to recruitment for appointment of higher judicial service. The grievance of the writ petitioners in the aforesaid matter is summarised in paragraph 4 of the judgments which reads as follows: “4. The grievance of the petitioners before the High Court is that candidates who would have qualified in terms of the upper age limit of 32 years for DJS, as stipulated in Rule 14(c), would now cease to be eligible by virtue of the fact that the examination is being held in March 2022. In terms of amended Rule 14(c) they would have crossed the age of 32 years on the 1st day of January of the year in which the applications for appointment are invited. In other words, it has been urged that if the High Court had conducted the examination on schedule in 2020 and 2021, such candidates would have qualified for the examination since they were within the age limit of 32 years for the relevant year.” 21. The aforesaid judgment has to be read and understood in the context of paragraph 17 wherefrom it can be seen that the High Court after taking into consideration that no examination was held in 2020 and 2021 and the examination for 2020 could not be conducted since the process for 2019 was still to be completed and the examination for 2021 could not be held due to the Covid 19 pandamic the High Court after considering that the matter accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations. Under such facts and circumstances the High Court was permitted as an one time measure to allow those candidates who were then within the age cut-off of 45 years during the recruitment years as 2020 and 2021 to participate in the ensuing Delhi Judicial Service examination. 22. The facts of the aforesaid case is clearly distinguishable on facts and hence not applicable. 23. Similarly Sachin and Ors. (supra) is also distinguishable on facts. The said decision is an aftermath of the decision in High court of Delhi (supra). 22. The facts of the aforesaid case is clearly distinguishable on facts and hence not applicable. 23. Similarly Sachin and Ors. (supra) is also distinguishable on facts. The said decision is an aftermath of the decision in High court of Delhi (supra). For the aforesaid reasons we do not find any reason to interfere with the impugned order. 24. The appeal and the application fail. 25. However, there shall be no order as to costs. I agree , (Apurba Sinha Ray, J.)