ABU BAKAR KHAN AND ORS vs STATE OF WEST BENGAL AND ORS.
- Court
- Calcutta High Court
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
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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
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clarification Notification being No. WBMSC/7 SLST (AT)/Notice/07/2024
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dated 24 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
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and Advance Arabic) for Classes V-VIII and thereby withdrawing the negative
marking system in the said examination.
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2. The brief fact of this case is as follows. The Commission notified 7 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.
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MSC/Notice/03/2023 dated 4 May 2023. Thereafter, the Commission
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published another notice being no. WBMSC/7 SLST/Notice/01/2024
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dated 17 January 2024 informing all concerned that TET examination of
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7 SLST (AT) for classes I-IV and classes V-VIII will be held on 28 January
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2024. The petitioners participated in the TET examination of 7 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
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were published on 21 December 2024. Subsequent to publication of such
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results it was clarified vide Notification No. WBMSC/7 SLST
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(AT)/Notice/07/2024 dated 24 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
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the 7 SLST (A.T) 2023 was initiated by the Commission for Class V-VIII
having total marks 150. The writ petitioners participated in the said
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examination. The Commission in its information guidelines for 7 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
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they had doubt of the answer or were not sure. The results of 7 SLST (AT)
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were published on 21 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
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the Commission after three days of the declaration of the results i.e. on 24
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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
1
versus Aligarh Muslim University and others . Relying on the decision of
Hon’ble Supreme Court passed in Pramati Educational and Cultural
2
Trust versus Union of India , 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
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(a) to recast the result of TET (Arabic) 7 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
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Notification No.1465-MD/07 dated 12 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
3
Ishaat E Taleem Trust versus The State of Maharashtra . 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
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24 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.
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In the light of his aforesaid submission, he prayed for quashing and/or
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setting aside the impugned Notification dated 24 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
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that by such Notification dated 24 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
4
and Others , 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
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Examination of 7 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
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dated 11 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:
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(i) Ashish Kumar versus State of UP and others ;
(ii) Employees State of Insurance Corporation versus Union of
6
India and others ;
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(iii) Union of India versus Uzair Imran and others ;
The Commission during evaluation did not apply negative marking and the
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Notification dated 24 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.
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Further all the petitioners participated in TET on 28 January, 2024
without demure. Successful TET candidate appeared for the main
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Examination on 19 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
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Court in Union of India and another versus Narendra Singh , 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
9
Madrasa and others 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
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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
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Court has the occasion to deal with the issue whether the Constitution (93
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.
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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
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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
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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
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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?
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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
th
the notification of commission published for holding 7 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?
th
10. It is not in dispute that the information guidelines for 7 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
th
deducted for every two wrong answers. The booklet of 7 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
st
booklet, however, after declaration of the result on 21 December, 2024, the
th
Commission issued a Notification being WBMSC/7 SLST (AT)/notice
th
07/2024 on 24 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
nd
and included in the merit list. By a letter dated 2 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
th
advertisement of 7 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
th
be any manner of doubt that the subsequent notification dated 24
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
th
the date of advertisement of 7 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.)