Soumitra Pal, J. - (1.) This appeal arises out of a judgment and order passed in W.P. 15719(W) of 2009 (Mustakim Ali Khan vs. State of West Bengal and others) whereby the learned Single Judge had allowed the writ petition by holding, inter alia, as under: - "Rule 3 of the said Rules provides for appointment of persons to be made in the manner as specified in Rule 7. Rule 7 contemplates selection on the basis of result of Regional Level Selection Test comprising written examination, evaluation of qualifications and personality tests of the candidates. However the first proviso to Rule 4 provides for a candidate to get preference over another who had qualified in written examination but has no desirable qualification. Since Mr. Dhar had not pressed his client's challenge to the vires of the said Rule, it is not necessary for this Court to examine whether there is an omission in Rule 4 when read with Rules 3 and 7 of the said Rules, in applying the provision for preference to candidates with regard to only written examination."................ "It is noticed that in the case considered where the requisition did not specify that preference would be given to certain candidates yet the Supreme Court had declared the law regarding preference to be that where any Rule or guideline provides preference in respect of some higher qualification it only means that all other requirements being equal, a person possessing higher additional qualification will be preferred. The interpretation of the word 'requirement' as made by Mr. Gangopadhyay that it is to do with qualification and had no effect whatsoever on marks obtained in the written examination, is not acceptable to this Court. The first proviso to Rule 4 is as follows: - ................... The said proviso makes applicable exercise of preference in favour of a candidate as desirable qualification over another, both having qualified in written examination. Thus, the equal requirement declared by the Supreme Court must in the circumstances apply to the marks obtained by the candidates in the written examination. In view of the aforesaid this Court finds the submissions made by Mr. Dhar to be of substance. The respondent Nos. 3 and 4 will forthwith allow the petitioner to take the personality test/interview for his candidature being considered for recruitment to the post of Assistant Teacher under Work Education subject in the 8th Regional Level Selection Test and thereafter, if the petitioner is found duly qualified, to appoint him in the post kept vacant pursuant to interim order dated 9th September, 2009 which though limited by that order was subsequently by order dated 7th December, 2010 made to continue until further order."
(2.) The facts, in short, are that the respondents No. 1 in appeal, that is the writ petitioner, pursuant to advertisement made by the Central School Service Commission, had applied for being appointed in the post of Assistant Teacher in Work Education (pass) subject in 8th Regional Selection Test, 2007. The said respondent participated in the selection process. He obtained 62.5 marks out of 95 marks. Though the last general candidate, having B.Ed degree who had obtained 59.5 marks out of 95 marks in the written test, was allowed to appear in the personality test, however, the authorities refused to allow the respondent to participate in the personality test on the ground that preference was given to trained candidate having B.Ed degree. It was submitted that as B.Ed degree is not an essential qualification, it was illegal, arbitrary, mala fide, discriminatory and bad in law in allowing the last general candidate, having B.Ed degree to appear in the personality test which was violative of the constitutional rights granted under Articles 14, 16, 19 and 21 of the Constitution of India. Aggrieved the writ petition was filed. The relevant prayers therein are as under: "b) A writ in the nature of Mandamus commanding the Respondents, particularly the respondent Nos. 3 and 4 and/or their men, agents or subordinates to show cause as to why they should not be directed to allow the candidature of the petitioner to participate in the personality test/interview for the recruitment to the post of Assistant Teacher under Work Education subject in the 8th Regional Level Selection Test, on the basis of written examination and marks obtained in the said examination, which is much higher then the marks obtained by the last candidate having the B.Ed. degree appeared in the personality test forthwith; c) A writ in the nature of Mandamus commanding the Respondents, particularly the respondent Nos. 3 and 4 and/or their men, agents or subordinates not to show cause as to why they should not be directed to allow the candidature for the personality test for appointment to the post of Assistant Teacher in the Work Education subject in any school and further to recommend the name of the petitioner for appointment to the post in question in a school on the basis of the said personality test forthwith; d) A writ in the nature of Prohibition prohibiting the Respondents and/or their men, agents or subordinates from recommending any candidate for the post of Assistant Teacher under Work Education subject from the 8th Regional Level Selection Test held by Regional School Service Commission, Western Region till disposal of the instant writ petition; g) Interim order of injunction restraining the respondents from filling up one post of Assistant Teacher under the Work Education Group by the West Bengal Regional School Service Commission, Western Region from 8th Regional Level Selection test till disposal of the instant writ petition;"
(3.) The said writ petition was disposed of by passing the impugned order as already noted.;