Civil Appellate Jurisdiction v. PRIYANKA NASKAR & Ors.

Mr. Samrat Dey Paul, Mr. Rishav Deb Barman. For the Appellants in MAT 1462 of 2023. For the Appellants in MAT 1542 of 2023. For the Appellants in MAT 1873 of 2023. For the Appellants in MAT 1173 of 2023. : : : : Mr. Ashoke Banerjee, Ld. Sr. Adv., Mr. Subhamay Dewanji. Mr. Partha Sarathi Bhattacharyya, Ld. Sr. Adv., Mr. Raju Bhattachayya. Mr. Anindya Lahiri, Ld. Sr. Adv., Ms. Pranati Das, Mr. Subhomoy Paul, Mr. A. Chakraborty. Mr. Kartik Kumar Ray, Mr. Devranjan Das, Mr. K.M. Hossain, Mr. Partha Mukherjee, Mr. A. Kaji. For the Appellants in MAT 1974 of 2023. Mr. Anant Kr. Shaw, : Mr. Mainak Ganguly. For the Appellants in MAT 1356, 1357, 1384, 1408, 1430, 1433,1486, 1487, 1509, 1511, 1540, 934 of 2023. For the Appellants in MAT 1615 of 2023. For the Appellants in : : : Mr. P.S. Deb Barman, Mr. Raja Adhikary, Mr. Amit Gupta, Mr. Anindya Bose, Mr. Shaharyuar Alam, Md. M. Nazar Chowdhury, Mr. Marghoob A. Salik, Ms. Debangana Dey. Mr. Joydeep Mazumdar, Mr. Subhamay Dewanji. Ms. Minakshi Arora, Ld. Sr. Adv., (through v/c) MAT 1616 of 2023. For the Appellants in MAT 1665 of 2023. For the Appellants in MAT 1725, 911 of 2023. For the Appellants in MAT 1173 of 2023. For the Appellants in MAT 966 of 2023. For the Appellant in MAT 1545 of 2023. For the Appellants in MAT 2188 of 2023. : : : : : : 13 Mr. Joydeep Mazumdar, Mr. Subhamay Dewanji, Mr. Debajyoti Bhattacharya. Mr. Subhamay Dewanji. Mr. Chittapriya Ghosh, Mr. Somesh Ghosh. Mr. Kartik Kumar Ray, Mr. K.M. Hossain, Mr. Devranjan Das, Mr. Partha Mukherjee, Ms. Keya Sutradhar, Mr. Kazi Ardan Ali. Mr. Jayanta Kumar Mitra, Ld. Sr. Adv., Mr. K.M. Hossain, Ms. Keya Sutradhar, Mr. Kazi Ardan Ali. Mr. K. M. Hossain, Sk. Jayed Hossain, Mr. Kazi Ardan Ali. Mr. Chitta Ranjan Chakraborty, Mr. Dip Jyoti Chakraborty, Mr. Sumit Banerjee, Ms. Puspa Rani Jaiswar. For the Appellants in MAT 1358 of 2023. : Mr. Biswaroop Bhattacharya , Mr. S. Alam, Md. M. Nazar Chowdhury. For the Applicants in : Mr. Bikash Ranjan Bhattacharyya, Ld. Sr. Adv., [CAN 2 & 7/2023 & CAN 22/2024 & CAN, 48, 49, 53, 67, 70, 83, 99, 137 & 140 of 2025 in MAT 873 of 2023]. 14 Mr. Firdous Samim, Ms. Gopa Biswas, Mr. Mainak Ghosal, Mr. Hasanuz Zaman Molla, Ms. Rajashree Saha, Ms. Salini Bhattacharjee, Mr. Hasibur Rahaman Jamadar, Mr. Ayush Majumder, Ms. Brinta Dutta, Mr. Rajosik Dutta, Mr. Naman Shah, Ms. Ankita Ghosh, For the added Respondents in MAT 873 of 2023. Mr. Imzamamul Islam. : Mr. Bikash Ranjan Bhattacharyya, Ld. Sr. Adv., Mr. Firdous Samim, Ms. Gopa Biswas, Ms. Payel Shome, Mr. Mainak Ghosal, Mr. Hasanuz Zaman Molla, Ms. Rajashree Saha, Ms. Salini Bhattacharjee, Mr. Hasibur Rahaman Jamadar, Mr. Ayush Majumder, Ms. Brinta Dutta, Mr. Rajosik Dutta, Mr. Naman Shah, Ms. Ankita Ghosh, Mr. Imzamamul Islam. For the Respondents/ Writ petitioner in CAN 5 & 9/2023, CAN 17 & 19/2024 and CAN 35/2025 in MAT 873 of 2023 : Mr. Kumar Jyoti Tewari, Ld. Sr. Adv., Mr. Tarunjyoti Tewari, Mr. Amrit Sinha, Mr. Aniruddha Tewari, Ms. Koushiki Bose, Mr. Dipankar Bhakta, Mr. Bikramjit Dutta. For the Respondents : Mr. Soumya Majumder, Ld. Sr. Adv., Mr. Saikat Chatterjee, Mr. Golam Mohiuddin, for the added Respondents in CAN 5/2023 in MAT Mr. Subhamay Das. 15 890 of 2023 For the added Respondents in CAN 6/2023 in MAT 890 of 2023 (except Respondent nos. 8, 16, 17, 20, 31, 40 & 74) For the added Respondents in CAN 7/2023 in MAT 890 of 2023 (except Respondent nos. 1, 2, 10, 11, 19, 23, 27 & 40) CAN 10 & 11 of 2023 in MAT 873 of 2023 For the Applicants in CAN 8/2023 in MAT 873 of 2023. For the Applicants in CAN 6/2023, CAN 13/2023 & CAN 126/2025 in MAT 873 of 2023. For the Applicants in CAN 34 & 73/2025 in MAT 873 of 2023. For the Applicants in CAN 30 & 33/2024 in MAT 873 of 2023. For the Applicants in CAN Nos.3, 4, 20, 21, 23-25 & 28 of 2024 CAN Nos.40, 41, 46, 50, : Ms. Ruchira Chatterjee, : Mr. Soumya Majumder, Ld. Sr. Adv., Mr. Vishak Bhattacharya, Ms. Biyanka Bhattacharya. : Mr. Pratip Mukherjee, Ms. Soma Mal. : Mr. Asif Iqbal. : Mr. Bikash Ranjan Bhattacharyya, Ld. Sr. Adv., Mr. Dibyendu Chatterjee, Mr. Pritam Majumdar, Ms. Reshmi Ghosh, Mr. Rahul Deb Goenka, 16 Ms. Satabdi Das, Mr. Mainak Singha Barma, Ms. Ankita Banerjee, Ms. Ananya Chakraborty, Mr. Manish Singha Barman, Ms. Sunanda Chatterjee. : Mr. Avik Pramanik. : Mr. Bikash Ranjan Bhattacharya, Ld. Sr. Adv., Mr. Sudipta Dasgupta, Mrs. Dipa Acharyya. : Mr. Avik Pramanik. : Mr. Ali Ahsan Alamgir, Ms. Rabia Khatoon. : Mr. Ekramul Bari, Mr. Simanta Kabir. : Mr. Simanta Kabir, Mr. Asif Iqbal. 52, 55, 64, 75, 80 – 82, 84, 85, 87, 98, 107, 117, 118, 122, 131, 133, 134, 138 &141 of 2025 in MAT 873 of 2023. For the Applicants in CAN 62, 63. 66, 68, 90, 93, 110 & 130 of 2025 in MAT 873 of 2023. For the Applicants in CAN Nos. 44, 47, 65, 89 & 108 of 2025 (in MAT 873 of 2023). For the Applicants in CAN 62, 63, 66, 68 & 93 of 2025 in MAT 873 of 2023 For the Applicant in CAN 12 of 2023, 14, 15, 16, 18, 27 of 2024, CAN 113, 115, 123 & 124 of 2025 and CAN 36, 38, 42, 45, 59-61 & 71-72, 86, 91, 95, 96, 97, 101, 103, 104, 116, 123, 128 & 132 of 2025 in MAT 873 of 2023. For the Applicants in CAN 31 & 72/2024 in MAT 873 of 2023. For the Applicants in CAN 31/2024, CAN 111, 114, 120 & 125 of 2025 in MAT 873 of 2023. For the Applicants in : Mr. Asif Iqbal. CAN 30, 33/2024 & CAN 111/2025 in MAT 873 of 2023. For the Applicants in CAN 37, 39, 43, 51, 56 & 57/2025 in MAT 873 of 2023. For the Applicants in CAN 29/2024 & CAN 54, 79 of 2025 in MAT 873 of 2023. For the Applicants in CAN 32/2024 in MAT 873 of 2023. For the Applicants in CAN 27/2024 in MAT 873 of 2023. For the added Respondents in CAN 4/2023 in MAT 890 of 2023 Added Respondent Nos.8, 17 & 40 in CAN 6/2023 & added Respondent Nos. 1, 2, 10, 11, 27 & 40 in CAN 7 & 8/2023 in MAT 890 of 2023 For the Applicants for CAN 12/2023 in MAT 873 of 2023. For the Applicants in CAN 26/2024 in MAT 873 of 2023. 17 : Ms. Soma Mal. : Mr. Gouranga Kr. Das, Ms. Poulami Dutta, Mr. Kingsuk Mondal, Mr. Suman Das. : Mr. Samim Ul Bari, Ms. Rabia Khatoon. Ms. June Modak. : Mr. Sudipta Dasgupta, Ms. Rabia Khatoon. : Md. Sabir Ahmed, Md. Abdur Rakib, Mr. Mojahid Mehedi, Mr. Puranjan Pal. : Mr. Ali Ahsan Alamgir, Mr. Gourab Kumar Nath. : Mr. Nayan Chand Bihani, Ld. Sr. Adv., Mr. Ashis Kumar Chowdhury, Mr. Babhru Bahan Bera, Mr. Avisek Chatterjee, Mr. Sudip Jana, Mr. Rohan Paul. For the Appellants in : Mr. Golam Mahiuddin, CAN Nos. 4-9 of 2025 in MAT 1358 of 2023 For the added party in CAN 69/2025 in MAT 873 of 2023 For the Appellants in MAT 1368, 913 of 2023. For the added parties in CAN 3/2023 in MAT 890 of 2023 For the Appellant in MAT 873 of 2023 in CAN 32/2024 For the Appellant in MAT 873 of 2023 in CAN 77/2024 For the Applicants in CAN 76/2025 in MAT 873 of 2023. For the Applicants in CAN 106/2025 in MAT 873 of 2023. For the Applicants in CAN 122/2025 in MAT 873 of 2023. For the Applicants in CAN 109 & 121/2025 in MAT 873 of 2023. 18 Mr. Santanu Maji. : Mr. Duke Banerjee, Mr. Ranjit Kumar Barman. : Mr. Siddhartha Banerjee, Mr. Anjan Bhandari, Mr. Binayak Gupta. : Mr. Devranjan Das, Mr. Sharukh Zia . : : Mr. Shamim Ul Bari, Ms. Rabia Khatoon, Ms. Jhilik Singha, Ms. Asmita Mitra. Mr. Sanjib Das, Mr. Pritom Banerjee, Mr. Ujjwal Kumar Dinda. : Mr. Bikash Ranjan Bhattacharya, Ld. Sr. Adv., Mr. Anath Nath Naskar. : : : Mr. Souvik Nandy, Ld. Sr. Adv., Mr. Subrata Santra. Mr. Tamal Taru Panda. Mr. Shuvro Prokash Lahiri, Mr. Ankan Mondal. For the Applicants in CAN 4-12/202 5 in MAT 1358/2023 For the Union of India. For the State/Respondents. (in MAT 890 of 2023) For the NCTE in MAT 873, 1725, 1873 & 1874 of 2023 For the Applicants in CAN Nos. 92, 119, 127, 136, 139 in MAT 873 of 2023. For the Applicants in CAN 142/2025 in MAT 873 of 2023. 19 : : : : : : Mr. T. M. Siddique, Ld. Sr. Adv., Mr. Subhayu Das, Mr. Golam Mahiuddin. Ms. Mary Datta. Mr. Bhaskar Prasad Vaisya, Ld. AGP., Mr. Ranjan Saha. Ms. Asha G. Gutgutia. Ms. Gopa Biswas, Mr. Mainak Ghosal, Mr. Hasanuz Zaman Molla, Ms. Rajashree Saha, Ms. Salini Bhattacharjee, Mr. Hasibur Rahaman Jamadar, Mr. Ayush Majumder, Ms. Brinta Dutta, Mr. Rajosik Dutta, Mr. Naman Shah, Ms. Ankita Ghosh, Mr. Imzamamul Islam. Mr. Pritam Chowdhury, Mr. Safik Dewan, Md. M. Nazar Chowdhury, Ms. Priyanka Saha, Ms. Farheen Rais. For the appellants in MAT 1974 of 2023. : Mr. Anant Kumar Shaw. Hearing is concluded on Judgment on : : 12th November, 2025. 3rd December, 2025. 20 Tapabrata Chakraborty, J.

1. It is a real conundrum; regard being had to the fact that we are dealing with a judgment dated 12.05.2023 passed by the learned single Judge (hereinafter referred to as the Court) in a writ petition being WPA 21187 of 2022 cancelling the appointment of 32,000 candidates, who were untrained at the time of selection, in the recruitment process conducted by the West Bengal Board of Primary Education (hereinafter referred to as the Board) and inter alia directing the Board to immediately arrange for a recruitment exercise for candidates, who were untrained at the time of recruitment (including candidates, who have obtained training qualification in the meantime) within a period of three months from date only for the candidates who participated in 2016 recruitment process, in terms of the same Rules and legal procedures under which the 2016 recruitment process was conducted. The Court further directed that the primary teachers now employed shall be allowed to work for a period of four months at the remuneration equal to a para teacher of primary school and that if any of such teachers are recommended again by the Board in the recruitment exercise as directed, those candidates shall work in the schools where they are now working and shall get notional benefit of their seniority with no monetary benefit at all and their salary for the said period of four months shall not be given to them. It was further directed that the services of the currently employed candidates, who would not succeed in the fresh selection, shall be terminated. 21

2. The said directions were issued in the writ petition preferred in the month of September, 2022 by 140 unsuccessful participants in the said recruitment process without impleading the teachers who were appointed about five years prior to filing of the writ petition. Challenging the said judgment, the Board preferred an appeal being MAT 873 of 2023 and the same was initially heard along with four appeals registered after allowing the applications filed by sets of candidates, whose appointment had been cancelled by the judgment impugned, seeking leave to prefer appeal together with applications for addition of parties. In the said appeals an order was passed on 19.05.2023 directing that there shall be an interim stay on termination of jobs till the end of September, 2023 and the Board was directed to conduct the selection exercise, as directed by the Court within a period of three months. By the said order the applications for addition of parties were also allowed. Aggrieved by the said order dated 19.05.2023, the appointed candidates preferred Special Leave Petitions which were disposed of by the Hon’ble Supreme Court on 07.07.2023 setting aside the impugned interim order to the extent of issuance of the direction to conduct the selection afresh and directing the High Court to decide the appeals and any other case (if any) filed by the aggrieved persons assailing the order of the Court, as expeditiously as possible.

3. Subsequent thereto, further applications for leave to appeal including applications for addition of parties were filed. By an order dated 04.09.2023 a co-ordinate Bench of this Court directed that the interim order passed on

19.05.2023 insofar as it stayed the termination of jobs shall continue till the disposal of the appeals. By the said order the applications for leave to appeal 22 and the applications for addition of parties were also allowed. Thereafter a Special Leave Petition (hereinafter referred to as SLP) preferred by one Sujoy Sen and others was disposed of by the Hon’ble Supreme Court on

25.09.2023 observing that the High Court shall hear the appeal along with the other similar appeals, as expeditiously as possible.

4. Pursuant to such directions, a co-ordinate Bench of this Court took up the said appeal for hearing on 26.09.2023 along with the other similar appeals together with further applications for leave to appeal and applications for addition of parties and allowed the applications. Thereafter, the matters were released by a co-ordinate Bench of this Court on

07.04.2025 and were assigned to this Bench.

5. The matter involves cancellation of appointment of 32,000 primary teachers, who have rendered uninterrupted service till date in different primary schools all over the State. There is no accusation of any offence or wrongdoing against any individual teacher, however, it has been alleged inter alia that the Board committed fraud and the recruitment process was not conducted as per the West Bengal Primary School Teachers Recruitment Rules, 2016 (hereinafter referred to as the RR, 2016).

6. Whether such circumstances would warrant a zero-tolerance approach or as to whether it would be iniquitous to interfere with such appointments, had compelled us to pause, ponder and confer anxious consideration upon the same which would require untangling of a complicated mesh of competing rights. 23

7. Mr. Dutta, learned senior advocate appearing for the Board and its functionary/appellants in MAT 873 of 2023 argues that by the impugned judgment the Court had set aside the appointment of 32,000 assistant teachers in primary schools under different District Primary School Councils (hereinafter referred to as DPSCs) though in the writ petition no such relief was claimed. It is a trite law that a party is not entitled to seek relief which he has not prayed for. Though the Court enjoys a wide discretion in granting reliefs and in moulding reliefs, it cannot upon ignoring and keeping aside the norms, grant a relief not even prayed for by the writ petitioners. Such approach had been criticised by the Hon’ble Apex Court in the cases of Bharat Amratlal Kothari and Anr. Vs. Dosukhan Samadkhan Sindhi and Anr., reported in (2010) 1 SCC 234 and Rajasthan Art Emporium Vs. Kuwait Airways and Anr., reported in (2024) 2 SCC 570.

8. He contends that as a rule, relief not founded on the pleadings, should not be granted. There was no pleading in the writ petition to the effect that the entire recruitment/selection process was sham or that the Board had acted mala fide or had proceeded in a biased manner. It had also not been pleaded that the Board had acted in a manner which would benefit a private party at the cost of the authorities or that its acts reflect any bias or favouritism. The writ petitioners have also not taken any steps to amend the writ petition to incorporate specific pleadings against the appointments sought to be cancelled though there is a procedure known to the law and long established by codified practice for seeking amendment of the pleadings. Reliance has been placed upon the judgment delivered in the case of S.S. Sharma and others Versus Union of India and others, reported in 24 (1981) 1 SCC 397. In the absence of appropriate pleadings, the Court had conducted an errant enquiry and that too at the instance of persons, who participated in the recruitment process and were unsuccessful. It is well settled that decision of a case cannot be based on grounds outside the pleadings of the parties. Such proposition has been detailed in the case of Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) by Lrs. and Anr., reported in (2010) 11 SCC 557. The writ petitioners have in fact urged that they may be appointed in the existing vacancies but the Court had proceeded to cancel the appointment of teachers already appointed. Such relief, as granted, is inconsistent with the writ petitioners’ claim. Reliance has been placed upon the judgment delivered in the case of Sanat Kumar Mitra Vs. Hem Chandra Dey and Ors., reported in 1960 SCC OnLine Cal 55.

9. He contends that the Court ought not to have taken upon itself the responsibility to provide guidelines towards appointment of primary teachers. The Government is the competent authority to frame guidelines and to conduct a selection process on the basis of the same. The Court cannot rewrite, recast or reframe the guidelines and cannot add words to the statute. Even if there is a defect or an omission, the Court cannot correct the defect or supply omission inasmuch as such act would tantamount to judicial legislation, which is impermissible in law. No mandamus can be issued to amend or enact laws, is such a deeply entrenched constitutional aphorism, which need not be burdened with quotational jurisprudence.

10. Mr. Dutta contends that the Court had proceeded more on imagination than the reality. The selection could not have been found fault 25 with in a mechanical and mathematical manner. Instead of testing the matter on the basis of the ground realities, the Court proceeded in a mechanical manner. The alleged fact that the candidates who secured less marks in academics and scored high marks in interview/aptitude test could not have been a ground for setting aside the appointment of 32,000 teachers. The contents of the impugned judgment would reveal that the Court conducted a roving enquiry on the factual aspects and acted as a fact finding-commission at instance of the candidates, who upon participation in the selection process could not emerge to be successful. The Court on its own sought to take upon itself the burden of establishing that the entire recruitment process was conducted in an arbitrary and biased manner though the party, who makes an allegation of bias and favouritism, is required to prove the same. A mere expression of doubt only on the ground of large number of candidates appearing and they are not being objectively and properly tested, cannot by itself render the whole recruitment process illegal. Reliance has been placed upon the judgment delivered in the case of Sadananda Halo Vs. Momtaz Ali Sheikh, reported in (2008) 4 SCC 619.

11. Mr. Dutta argues that acting on the basis of the allegations levelled by about 140 participants, the Court could not have set aside the appointment of 32,000 candidates and that too without granting an opportunity of hearing to the successful candidates. The power of judicial review does not extend to conducting a microscopic inquiry beyond the pleadings of the writ petition. In support of such contention reliance has been placed upon the judgments delivered in the cases of State of W.B. Vs. 26 Chandra Kanta Ganguli, reported in 2017 SCC OnLine Cal 3799 and Tajvir Singh Sodhi and Ors. Vs. State of Jammu and Kashmir and Ors., reported in (2023) 17 SCC 147.

12. He contends that a mere assertion in the pleadings that corrupt practices were adopted in conducting the selection process would be insufficient to trigger a presumption to that effect unless the entire chain of events i.e., the demand, acceptance and recovery is established. The allegation of corruption, which has a wide connotation, has to be established beyond reasonable doubt and cannot be left only on the rider of preponderance of probabilities moreso when the setting aside of appointment would lead to severe civil consequences affecting fundamental right towards life and livelihood. The observation of the Court that ‘jobs for primary school teachers were actually sold to some candidates who had the money to purchase the employment’ has no basis at all. The manner in which the recruitment process was conducted does not reflect that there was any deep-seated moral degradation or unsatiated greed for wealth. Reliance has been placed upon the definition of the word ‘corrupt’ in Black’s Law Dictionary and also upon the judgments delivered in the cases of State of U.P. and Anr. Vs. Ved Pal Singh and Anr., reported in (1997) 3 SCC, N.P. Jharia Vs. State of M.P., reported in (2007) SCC 358, State of A.P. Vs. V. Vasudeva Rao., reported in (2024) 9 SCC 319, Joint Action Committee of Bengal Taxi Association, etc. and Anr. Vs. State of West Bengal and Ors., reported in 1993 SCC OnLine Cal, Neeraj Dutta Vs. State of (Government of NCT of Delhi), reported in (2023) 4 SCC 731, Kim Wansoo Vs. State of Uttar Pradesh and Ors., reported in 2025 SCC OnLine SC 17 and Dileepbhai 27 Nanubhai Sanghani Vs. State of Gujrat and Anr., reported in 2025 SCC OnLine SC 441.

13. Referring to the averments made in paragraph 17, 18, and 19 of the impugned judgment, he argues that the Court had arrived at a finding that ‘in the recruitment scam stinking rats are being smelt’ and on the rudiments of such finding the appointment of 32,000 candidates were directed to be cancelled. Such finding of corruption is not based on any evidence whatsoever and as such no inferential deduction could have been drawn. Proof of demand and acceptance of illegal gratification is a sine qua non in order to establish the guilt. No such guilt had been established in respect of any of the candidates, whose appointments have been directed to be cancelled.

14. Placing reliance upon the judgments of the Hon’ble Supreme Court delivered in the cases of Markio Tado Versus Takam Sorang and others, reported in (2012) 3 SCC 236 and Dhampur Sugar (Kashipur) Ltd. Versus State of Uttaranchal and others, reported in (2007) 8 SCC 418, he argues that discretionary jurisdiction cannot be applied by a writ Court in such a way so as to enable any roving enquiry with a view to fish materials. If sufficient averments of requisite materials are not recorded the writ Court cannot make ‘fishing or roving enquiry’.

15. As regards exercise of authority conferred by the provisions of Section 165 of the Indian Evidence Act, 1872 (hereinafter referred to as the IE Act), Mr. Dutta has placed reliance upon the judgments delivered in the cases of Jamatraj Kewalji Govani Versus State of Maharashtra, reported in 28 AIR 1968 SC 178, Zahira Habibulla H. Sheikh and another Versus State of Gujarat and others, reported in (2004) 4 SCC 158, Ram Chander Versus State of Haryana, reported in (1981) 3 SCC 191, Nepal Chandra Roy Versus Netai Chandra Das and others, reported in 1971 (3) SCC 303 (para 12), Sunil Chandra Ray and another Versus The State, reported in 1953 SCC OnLine Cal 181 and Mukti Kumar Ghosh Versus State of West Bengal, reported in 1974 SCC OnLine Cal 139 . The broad proposition of law that can be culled out from the above judgments is that the said provisions confer a wide discretion on the Court to act as the exigencies of the justice require. Such power is in a way complementary to its power under Section 311 of the Code of Criminal Procedure. 1973 (hereinafter referred to as CrPC). However, the Court cannot act as the prosecutor and its role needs to be of participatory nature in trial. By way of abundant caution, law has been laid down to the effect that citing the provisions of Section 165 of the IE Act, the Court must not assume the role of a prosecutor in putting questions and usurp the functions of the respective parties to the proceeding. The Court must not take sides and should not descend into the arena and forsake the judicial calm and his action should not have any intimidating or inflating effect. Such power is to be exercised in order to discover or obtain proper proof of relevant facts and to act in aid of justice. However, in the present case, the Court had exceeded its jurisdiction by taking up the charge of examining particular persons itself.

16. Drawing our attention to the contents of paragraph 9 of the judgment impugned, Mr. Dutta submits that the Court erroneously arrived at a specific finding that no aptitude test was taken. In the order passed on 29

21.02.2023, discrepancies were pointed out to the effect that all the interviewers were called over the phone to take interview and that there was no guideline for awarding marks for aptitude test. A composite reading of the said judgment would reveal that the contents are self-contradictory. The Court acting as a prosecutor recorded simpliciter that no aptitude test was taken and that all the interviewers were called over phone though there was no such allegation supported by appropriate pleadings in the writ petition itself to justify such the findings.

17. Referring to the documents annexed at pages 153 to 193 of the paper book, Mr. Dutta argues that after recording the academic score and score in TET, all the candidates were interviewed and an aptitude test, which stands defined under Rule 2(c) of RR, 2016, was also conducted and marks were allotted. The panels were published and the writ petitioners did not doubt such publication and no contemporaneous complaint was lodged to that effect. Being oblivious of such fact and without considering the judgments cited, the Court sought to wriggle out of the proposition of law laid down in the judgments cited on a purported plea that niceties of legal principles cannot be applied to the facts of the case ‘in the face of the magnitude of stinking corruption’ though such allegation of corruption was neither pleaded nor established.

18. Placing reliance upon the judgments delivered in the cases of Ali Hossain Mandal and others Versus West Bengal Board of Primary Education and other, reported in 2024 SCC OnLine SC 1189 and the unreported order passed in SLP (C) No. 2434 of 2024, Mr. Dutta argues that while considering 30 the dispute pertaining to the selection of primary school teachers following the RR, 2016, the Court arrived at a finding that the panel having expired and not having been extended by the competent authority, no appointment was permissible after expiry of the said panel. It was also the mandate of the Hon’ble Supreme Court in the case of Sumit Ghosh and others (supra) that the judgment delivered in Ali Hossain Mandal and others (supra) needs to be followed.

19. Appointments made in the year 2017 were sought to be challenged by filing the writ petition in the year 2022 without any explanation of the delay. The judgments delivered in Chennai Metropolitan Water Supply and Sewerage Board and others Versus T.T. Murali Babu, reported in (2014) 4 SCC 108 and State of M.P. and others (supra), upon which reliance has been placed by Mr. Dutta affirmed the proposition of law that the doctrine of delay and laches should not be brushed aside while exercising any extraordinary and equitable jurisdiction moreso when third party right stood vested in favour of the appointees in view of rendition of a substantial period of service.

20. On the issue of predisposition of the Court, Mr. Dutta pointed out as follows: (I) The sequence of facts would reveal that the Court decided the matter in hot haste and in a tearing hurry. Having heard the writ petition at least on fifteen occasions in between the months of December, 2022 and May, 2023, hearing was concluded on 31

11.05.2023 and the judgment was delivered on the very next date, i.e., on 12.05.2023; (II) The order dated 17.01.2023 would reveal that the learned advocate appearing for the Board was not allowed to point out that the aptitude test was duly held and only on the basis of answers put to seven writ petitioners from amongst the others present in Court, the Court arrived at a finding that ‘there was no aptitude test for the said petitioners’; (III) The said judgment would also reveal that the Court itself decided to exercise power under Section 165 of the IE Act and to put questions to some of the candidates and interviewers as a prosecutor; (IV) In the order dated 24.01.2023, the Court observed that ‘I will not allow filing any affidavit-in-opposition in its matter by the Board’. The Court started dictating the said order stating that ‘I directed the petitioners that at least 2 candidates from each district are to be present before this Court….’. However, the records would reveal that no such direction was issued earlier by the Court; (V) The order dated 05.04.2023 would reveal that the Court suo moto issued a direction to the Superintendent of the Presidency Correctional home to produce one Mr. Manik Bhattacharjee before this Court on the self-same date at 3 p.m. though there was no prayer or pleading or allegation in respect of the said 32 person in the writ petition. The order does not disclose any reason why a suo moto direction was issued.

21. The appellants in MAT 890 of 2023, upon emerging to be successful in the recruitment process were appointed as primary teachers. Mr. Kalyan Bandopadhyay, learned senior advocate appearing on their behalf submits that bereft of foundational facts, the writ petition had been allowed, interfering with the appointment of about 32,000 primary teachers all over the State under different Councils at the instance of a few unsuccessful candidates in a recruitment process conducted about six years prior to filing of the writ petition. Prior to issuance of such a drastic order having repercussion all over the State of West Bengal, the Court ought to have directed the writ petitioners to intimate such preference and pendency of the writ petitions to the successful primary teachers, by way of an advertisement. No direction was also given to the State respondents to bring the fact of pendency of the writ petitions to the notice of the successful primary teachers. Without any notice and without granting an opportunity to defend themselves, the Court cancelled the appointment of the appellants by the impugned judgment and the same cannot even stand a moment’s scrutiny being, ex facie, violative of the principles of natural justice. Placing reliance upon a judgment delivered in the case of Institute of Chartered Accountants of India –vs- L.K. Ratna and others, reported in (1986) 4 SCC 537, he submits that even grant of an opportunity of hearing to the appellants at this appellate stage would not cure the defect of natural justice which occasioned before writ Court. In support of such contention reliance has been placed upon the judgments delivered in the cases of Khetrabasi 33 Biswal–vs- Ajaya Kumar Baral and Ors., reported in (2004) 1 SCC 317, Baluram –vs- P. Chellathangam and Others, reported in (2015) 13 SCC 579 and Ranjan Kumar etc. etc. –vs- State of Bihar & Ors., reported in (2014) 16 SCC 187.

22. He argues that applicability of the doctrine of delay and laches should not be lightly brushed aside. A writ Court is required to weigh the explanation offered and the acceptability of the same. The Court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional Court it has a duty to protect the rights of the citizens and simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the Court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Delay comes in the way of equity and that in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. It is also a matter of great significance that at one point of time, equity that existed in favour of one, melts into total insignificance and paves the path of extinction with the passage of time. Reliance has been placed upon the judgments delivered in the cases of Printers (Mysore) Ltd. –vs- M.A. Rasheed & Ors., reported in (2004) 4 SCC 460, Chennai Metropolitan Water Supply and Sewerage Board and Others –vs- T.T. Murali Babu, reported in (2014) 4 SCC 108, Collector of Central Excise, Cochin –vs- Western India Plywood, reported in (1998) 1 SCC 316 and Sunny Abraham VS Union of India, reported in 2022 1 Supreme 351. 34

23. He submits that in the writ petitions there is no averment to the effect that the selection was conducted through a sham process. The sole intent and purpose of the writ petitioners towards preference of the writ petition was to pressurise the Government and to avail appointment as primary teachers. Such intent would be explicit from the fact that the petitioners made only one written representation and that too after more than three years with a statement that still there are certain vacancies and as such they can be engaged in the same. The Court did not consider the issue that unsuccessful candidates having participated in a selection process cannot turn back and challenge the same. The Court had committed an error in cancelling the appointment of 32,000 primary teachers even when the writ petitioners had not made any prayer to that effect. In support of the arguments advanced reliance has been placed upon the judgments delivered in the cases of Narmada Bachao Andolan –vs- State of Madhya Pradesh and Anr., reported in (2011) 7 SCC 639, K.A. Nagamani–vs- Indian Airlines, reported in (2009) 5 SCC 515 and K.H. Siraj –vs- High Court of Kerala & Ors., reported in (2006) 6 SCC 395. While delivering the judgment, the Court did not take into consideration the other two co-ordinate Bench decisions in Monika Das Vs. State of West Bengal, reported in (2019) SCC OnLine Cal 4324 and Md. Rabiul Sk. and Others Vs. State of West Bengal and Others, reported in 2023 SCC OnLine Cal 710 on identical facts and failure to do so infracts judicial propriety and discipline. Reliance has been placed upon the judgments delivered in the cases of Renuka versus State of Karnataka and another, reported in 2025 SCC Online SC 970, Maharashtra University of Health Sciences represented by Deputy Registrar VS Paryani 35 Mukesh Jawaharlal, reported in AIR 2007 SC 2264 and in the case of S. Kuldeep Singh and another versus S. Prithpal Singh, reported in (2023) SCC

24. He further submits that no mala fide has been alleged against the successful candidates and the Court erred in law in interfering with the decisions of professionally qualified authorities. The Court has conducted a roving enquiry on the factual aspect which is not permissible. While testing the fairness of the selection process wherein thousands of candidates were involved, the Court should have been slow in forming an opinion moreso when the appointed teachers were not parties to the proceeding. In support of such contention reliance has been placed upon the judgments delivered in the cases of Sadananda Halo & Others –vs- Momtaz Ali Sheikh & Others, reported in (2008) 4 SCC 619, Union of India –vs- Dr. Kushala Shetty and others, reported in (2011) 12 SCC 69.

25. According to Mr. Bandopadhyay, a writ of mandamus can be issued only when there is a clear violation of an enforceable right and non- discharge of a co-related duty on the part of the respondents. In the instant case only by participating in an interview the petitioners did not secure any indefeasible right to be engaged as primary teachers. Furthermore, the recruitment process was conducted in the year 2016 and no complaint was lodged contemporaneously. The writ petitioners themselves were aware that they would not be able to disturb a recruitment process which stood concluded six years ago and they took a calculated chance to avail 36 appointment by preferring the writ petitions with a statement that there are certain existing vacancies in which they can be accommodated.

26. He argues that the period prescribed under Rule 6(3) of the RR, 2016 for the untrained candidates to acquire training qualification had expired prior to filing of the writ petition. In view thereof, the writ petition itself was not maintainable inasmuch as there had been no infringement of any legal right of the petitioners. The appointees had earned a confirmed status after completing training as directed in the RR, 2016 prior to filing of the writ petition and such finality as attained could not have been interfered with. Life cannot be breathed into a recruitment process which stands concluded.

27. Mr. Anindhya Mitra, learned senior advocate appearing for the appellants in the appeal being MAT 1352 of 2023 submits that the judgment impugned does not reflect any ground whatsoever towards cancellation of the appointment of 32,000 primary teachers. Such direction towards cancellation of appointment contained in paragraph 21 of the impugned judgment is preceded by the word ‘in such circumstances’. A perusal of the contents of paragraph 7 of the impugned judgment would reveal that one such circumstance was that ‘the petitioners found and alleged that the particulars given therein are absolutely false as because the lowest number of empanelled candidates was shown in the report as 14.191 whereas throughout West Bengal 824 who scored below 13 were appointed’. Such observation was made placing reliance upon a tabular sheet enclosed by the petitioners as annexure ‘B’ to their exception to the report filed by the Board dated 11.01.2023. Such reasoning is, however, absolutely unfounded 37 inasmuch as 14.191 marks was obtained by a SC candidate in the district of Birbhum. Amongst the petitioners, the petitioner no.53, namely, Sofiqul and the petitioner no. 132, namely, Nur Huda were from the district of Birbhum and they scored only 11.442 marks and 12.644 marks respectively. The petitioners did not cite any candidate under SC category in the district of Birbhum who had been granted appointment having obtained more than

14.19 marks. The Court erroneously proceeded on the basis that in the State of West Bengal the marks obtained by the lowest empanelled candidate was 14.19. The selection was conducted district wise and the number of such empanelled candidates in the respective categories were different in different districts.

28. Referring to the observations made by the Court in paragraph 8 of the impugned judgment, Mr. Mitra submits that it is not a case in the writ petition being WPA 21187 of 2022 that the writ petitioners being Priyanka Naskar and Ors. ‘wanted the marks of last empanelled candidates of different categories like SC, ST, OBC etc.’. No direction was issued by the Court to furnish particulars of the marks obtained by the last empanelled candidates of different categories like SC, ST, OBC etc. In view thereof, there was no suppression of any particulars by the Board. The Board had filed an affidavit-in-opposition controverting the allegation of the petitioners.

29. Mr. Mitra further argues that a perusal of the order dated 17th January, 2023 would reveal that the Court took a decision to exercise power under section 165 of the IE Act upon putting some questions to only 7 candidates being the petitioner nos. 1, 4, 7, 19, 50, 90 and 94 from amongst 38 the total 140 petitioners. No reason is forthcoming in the said order as to why only 7 candidates were picked up and questioned when the said 7 candidates obtained meagre marks in the interview and aptitude test. The Court cannot assume the role of a prosecutor and call a witness whom he thinks might throw some light on the facts. The answers given by the said candidates ought not to have weighed with the Court in arriving at the findings moreso when the answers given lacked relevancy. It is also not a case that the Board had declined cross-examination. Reliance has been placed upon the judgments delivered in the cases of Jones versus National Coal Board, reported in (1957) 2 All. E.R 155.

30. He argues that it would be surprising to note from the contents of the subsequent order dated 6th February, 2023 that though sealed envelopes containing list of persons who took interview in twenty districts were filed, the sealed envelopes only in respect of five districts were opened. No reason is forthcoming as to why the other envelopes pertaining to fifteen districts were not taken into consideration. Considering the version of the said interviewers, the Court arrived at an abrupt finding that no aptitude was taken, as referred to in paragraph 9 of the impugned judgment. There is also no reason behind the finding of the Court in paragraph 10 of the impugned judgment that the marks given to the candidates against the aptitude test is wholly illegal and false and was an ‘exercise to hoodwink all concerned including the court’.

31. He further contends that the definition of the word ‘aptitude’ in Rule 2(c) of RR, 2016 is ‘a test to assist natural teaching ability of a candidate’ 39 and as such no reason is forthcoming as to why the Court directed the Board to file an affidavit upon consultation with experts.

32. He argues that the primary teachers whose appointments have been cancelled were not parties to the proceeding and that as such they had no opportunity to cross-examine the witnesses. Thus, blatant violation of the principles of natural justice cannot be ruled out. The interviewers were also not parties to the proceeding and that as such the Court could not have questioned them in exercise of the powers under section 165 of the IE Act. Such act also suffers from a jurisdictional error. Right to cross examination is an indefeasible right and denial of cross examination of the witnesses whose statements are the basis of the decision, is a serious flaw which renders the order to be a nullity. No oral testimony can be considered satisfactory unless it is tested by cross-examination. In support of such argument reliance has been placed upon the judgments delivered in the cases of New India Assurance Company Limited versus Nusli Neville Wadia & Another, reported in (2008) 3 SCC 279, Andaman Timber Industries versus Commissioner of Central Excise, reported in (2016) 15 2181 and Modula India versus Kamakshya Singh Deo, reported in (1988) 3 SCC 619.

33. Drawing our attention to the judgment impugned, Mr. Mitra submits the said judgment had been delivered placing reliance upon a spiral binding of documents which had not been brought on record through proper affirmation and that as such no reliance ought to have been placed upon the said documents. There is no averment in the writ petition as regards corruption. Corruption was not a ground in the writ petition and the 40 direction towards cancellation of appointment of such huge number of candidates is also not supported with appropriate reasons. The selected candidates upon appointment in the year 2017 completed the training and were thereafter confirmed in such service and such vested right accrued in their favour could not have been interfered with by the learned Judge moreso at the instance of unsuccessful candidates and when there was no prayer in the writ petition towards the cancellation of appointment. Reliance has been placed upon the judgment delivered in the case of Madan Lal & Others versus State of Jammu and Kashmir & Others, reported in (1995) 3 SCC 486.

34. Mr. Mitra argues that the observations made in the impugned judgment that the Board and its officials including its President were involved in transaction of huge money and that they had conducted such recruitment like the affairs of a local club and that the jobs for primary school teachers were actually sold to some candidates who had the money to purchase such employment were not based on appropriate pleadings in the writ petition. Neither in the writ petition nor in the impugned judgment it has been pointed out that any appointed candidate was involved in any money trail. Not a single document could be produced to establish that any one of the appointed candidates had influenced any person upon payment of money. Any writing recorded on any issue dehors the pleading is without jurisdiction. Reliance has been placed upon the judgments delivered in the cases of Shivaji Balaram Haibatti versus Avinash Maruthi Pawar, reported in (2018) 11 SCC 652, Bharat Singh & Others versus State of Haryana & Others, reported in AIR 1988 SC 2181 and Bachhaj Nahar versus Nilima 41 Mondal & Another, reported in (2008) SCC 491. Mere pendency of an investigation pertaining to a recruitment process cannot be a ground of abrupt termination of appointment of teachers on the basis of a writ petition preferred about five years after such appointment and that too without impleading the candidates, who were terminated, as parties to the writ petition.

35. Mr. Mitra contends that the Court had even refused to consider the judgments upon which reliance was placed by the Board. The proposition of law laid down in the judgments was not even considered observing that ‘the niceities of legal principles which I do not find have any applicability in the face of the magnitude of stinking corruption in the recruitment exercise of 2016 conducting by the Board’.

36. He further submits that it would be shocking to note that the judgment was delivered on 12th of May, 2023 and the matter again appeared in the list on 16th May 2023 and on the basis of the submissions of the learned advocate appearing for the writ petitioners, the marks recorded in paragraph 7 of the impugned judgment was altered from 14.191 to 13.796 and the number of candidates mentioned in paragraph 21 of the impugned judgment was altered from 36,000 to 32,000. Such alteration of marks and number of candidates cannot be construed to be mere typographical errors. No documents were produced to establish such alteration.

37. He further argues that ‘knowledge’ and ‘aptitude’ are distinct and different. A candidate may be having a brilliant academic record but that cannot lead to a conclusion that he would also be getting high marks in 42 aptitude. The art of transmitting knowledge is a factor to be taken into consideration towards grant of marks in aptitude. As such, the Court erroneously proceeded on the basis of a perception that the difference of marks in aptitude with the marks in knowledge should be proportional.

38. He contends that the observations made in paragraph 16 of the impugned judgment are erroneous in as much as Court did not take into consideration the amendment of Rule 7 of RR, 2016 effected on 23rd September, 2016. The Court erroneously proceeded construing the alleged infirmities pertaining to TET 2014 are inextricably bound with the recruitment process of 2016. The allegations levelled in the writ petition were pertaining to TET 2014 and on the basis of illegalities alleged in TET 2014, the Court could not have directed cancellation of appointment of 32,000 successful candidates. Reliance has been placed upon a judgment delivered in Bapi Kandar and Others versus State of West Bengal and Others, reported in 2018 SCC Online Cal 10874. The learned Judge was a member of the Division Bench in the said case where TET, 2012 was in question. The Court arrived at a finding that there were serious irregularities in the said examination but the appointments made were not disturbed.

39. Mr. Jayanta Mitra, learned advocate appearing for the appellants in MAT 966 of 2023 submits that the total vacancy was 42,949. Note 7 of Rule 6 (3) of RR, 2016 provides that 10 % of the total posts would be earmarked for para teachers. 10 % of such vacancies being 4,295 vacancies were earmarked for para teachers in which 3,205 vacancies were filled up by 239 trained candidates and 2966 untrained candidates. The appellants herein 43 belong to the group of untrained candidates, who upon appointment had already completed training in terms of Rule 6 (3) of RR, 2016. As per the said provisions, the appellants upon appointment as para teachers have acquired the minimum qualification within a period of two years from the date of appointment. Rule 8 (3) read with the amendment incorporated vide Memo No.656-SE (EE/10M-6/09(PT-5) and memo No.657-SE (EE/10M- 6/09(PT-5) both dated 23.09.2016 provides that in respect of para teachers the eligibility criteria would be ‘academic qualifications, training, performance training, extracurricular activities, viva voci or interview and teaching experience’. Thus, in respect of para teacher there was no provision for aptitude test. Rule 8(5), however, makes provision for grant of marks towards teaching experience. These provisions of the Rules were neither cited nor taken into consideration by the Court. Furthermore, none of the writ petitioners except one are para teachers. The Court was not even apprised of such fact and that as such all the teachers who participated in the recruitment process including teachers and para teachers were erroneously construed to be a composite class and alleging that there had been a widespread corruption, the appointment of 32,000 primary teachers was cancelled. Such direction had caused extreme prejudice to the appellants. Their sole source of livelihood had been atrociously snatched away. In the writ petition no allegation was levelled as regards appointment of para teachers and no prayer was also made to terminate the appointment of para teachers and none of the appointed para teachers were impleaded in the writ petition. In their absence, the Court ought not to have terminated their appointment on the rudiments of the observation that the ‘jobs for 44 primary school teacher were actually sold to some candidates who had money to purchase the employment’.

40. He argues that the Court acted as the prosecutor and chose to question some candidates and interviewers and proceeded with a perception that there had been a scam and that as such all the appointments made through the said recruitment process need to be cancelled. Justice is best done by a Judge who holds the balance between the contending parties without himself taking part in their disputations. In the case of Jones versus National Coal Board, reported in 1952 (2) All.E.R, 55, the Court observed that ‘in every pursuit of justice our keenness may outrun our success and we may trip and fall’. In the present case, in the admitted absence of appropriate pleadings, the Court has proceeded as a ‘knight-errant’.

41. Mr. Subir Sanyal, learned senior advocate appearing for the appellants in MAT 1547 of 2023 submits that the appellants are all para teachers and are within the 32,000 candidates whose appointment were cancelled on the basis of the observations that ‘the Former Education Minister, Former President of the Board and a number of middlemen through whom the jobs were sold like a commodity’ and that in the ‘recruitment process scam stinking rats are being smelt’. There was no prayer in the writ petition as regards cancellation of appointment of para teachers, no pleading that any para teacher was illegally appointed and the affected para teachers were also not impleaded in the writ petition and as such it does not require a moment’s scrutiny to arrive at the conclusion that the judgment had been delivered without following the basic principles of law. 45

42. He argues that the selection procedure for para teachers was distinct and different from the teachers. In respect of para teacher under RR, 2016 there was no provision to conduct any aptitude test and in place and stead of aptitude test, 5 marks were provided for teaching experience. In view thereof, the allegation that no aptitude test was properly held has no bearing with the appointment of the appellants herein. The findings of the Court that 9.5/9 marks as against 10 marks for interview was awarded to candidates, who had lesser academic qualifications, is also not applicable to the appellants since, in case of the para teachers, interview was of 5 marks and 5 marks was allotted for teaching experience.

43. Mr. A. Majumder, learned advocate appearing for the some of the appellants in MAT 913 of 2023 have adopted the arguments of Mr. Mitra.

44. Mr. Ashok Banerjee, learned senior advocate appearing for the appellants in MAT 1462 of 2023 argues that by preferring the writ petition, the petitioners had taken a calculated chance to obtain appointment to the post of primary school teachers, upon misleading the Court. They themselves did not contemplate that the Court on the basis of the averments made in the writ petition would cancel the appointment of 32,000 teachers moreso when some of the petitioners were parties to an earlier writ petition preferred challenging the same recruitment process and the same were dismissed. A perusal of the averments made in the writ petition would clearly reveal that no appointment of any teacher was under challenge and there was also no allegation of any corruption or scam. In the writ petition no prayer was made towards cancellation of appointment of any teacher. 46 The sole allegation in the writ petition was that they have not been equally treated with the other untrained appointed candidates and as there are existing vacancies, they may be appointed in the said vacancies. Such allegation of discrimination was also not fortified through proper evidence. The Court in an erroneous manner acted as a prosecutor and upon examining a few petitioners and some interviewers arrived at a finding that there was widespread corruption in the recruitment process. Such procedure as adopted is alien to service jurisprudence and is unsustainable in law. By the impugned order, appointment of teachers who were not impleaded, had been drastically cancelled and such act smacks of blatant violation of the principles of natural justice. In support of his argument, Mr. Banerjee has placed reliance upon the judgment delivered in the case of D. Sarojakumari versus R.Helen Thilakom and Others, reported in (2017) 9 SCC