The Judgment of the Court was delivered by

Sinha, J.:— As application has been filed, inter alia, for recalling an order dated 20th January, 1995 passed in this appeal by a Division Bench comprising of Mukul Gopal Mukherjee and Vidya Nand, JJ. on behalf of Smt. Mukti Rani Sahoo.

2. Before considering the point at issue the fact of the matter may be noticed. A vacancy in the post of Assistant Teacher arose in Paranchak Siksha Niketan. A prior permission was granted by the District Inspector of School, Secondary Education, wherein the required qualification mentioned was B.Sc (Hons.) in Chemistry preferably BT/B.Ed, P.G.B.T from general category. The project employment officer sponsored the names of 17 candidates including the writ petitioner-appellant as well as the applicant Smt. Mukti Rani Sahoo. The writ petitioner recorded his qualification in National Employment Exchange as M.Sc in Chemistry. The writ petitioner's B.Ed degree was not reported in the Local Employment Exchange and an interview was held on 11th September, 1994 whereafter a panel was prepared; the name of the applicant was at Serial No. 1 thereto. The aforementioned panel was accepted and approved by the Ad-hoc Committee which was subsequently also approved by the District Inspector of School, Secondary Education, Tamluk whereafter the applicant was issued an appointment letter dated 28th December, 1994. A writ petition was filed by the writ petitioner-appellant wherein an interim order to maintain status quo was passed on 21st November, 1991 which was marked as C.O No. 1429(W) of 1995. The said interim order was modified on 6th December, 1994 to the effect that pending hearing of the writ petition, the appointment may be made from the impugned panel which would, however, abide by the result of the writ application. Pursuant to the said order, an appointment letter was issued on 27.12.94 By an order dated 10.1.1995 the said writ petition was disposed of with a direction upon the District Inspector of School, Secondary Education, Tamluk to hold a fresh interview within the specified period. However, in an appeal taken from the said order the division bench overruled the said decision observing, that the services of the respondent No. 7 should not be disturbed until a fresh panel was made.

3. On 14th February, 1996 a contempt notice was issued but the said proceedings was disposed of upon accepting apology of the contemner.

4. It is stated that a fresh panel has been prepared after holding interview in which the writ petitioner has been placed at Serial No. 1.

5. This review application has been filed by the applicant, inter alia, on the ground that the writ petitioner did not have the degree at a point of time i.e on 13.6.1996 when the selection process was started by D.I.S.E, Tamluk and thus no credit could be given to the sail B.Ed, degree it is stated that the Government Circular No. 2256(19) G.A dated 14.10.92 which was subsequently incorporated in the statutory recruitment rules published on 20th May, 1993 stands in his way relating to his claim for getting the benefit of obtaining B.Ed degree. According to the applicant unfortunately the Court of appeal did not take into consideration the impugned direction issued by the Director of School Education in exercise of his statutory power under the 1969 Rules and thus there exists an error apparent on the face of the record.

6. Mr. Bikash Ranjan Bhattacharjee, the learned Counsel appearing on behalf of the appellant, therefore, submitted that in this view of the matter, the judgement and order passed by the division bench dated 20.1.95 should be recalled. Reliance in this connection has been placed in (1) Commissioner of Sales Tax, J & K v. Pine Chemicals Ltd. reported in (1995) 1 SCC 58, (2) Kerala State Electricity Board v. M.R.F Ltd. reported in (1996) 1 SCC 597 and (3) M.V Venkataramana Bhat v. Returning Officer & Tahsildar reported in (1993) 4 SCC 317.

7. Mr. Mukul Prakash Banerjee, the learned Counsel appearing on behalf of the writ petitioner-respondent, however, submitted that the directions issued by the Director of School Education is ultra vires Section 45(2)(d) of the West Bengal Board of Secondary Education Act inasmuch as the Director has been granted unrestricted power to make any direction. It is submitted that no provision for sub-delegation having been made in the statute. Rule 28 must be held to be ultra vires the rule making power. It is further submitted that the discretion granted to the District Inspector of School? as regards fixation of qualification in terms of Rule 6(a) of the direction issued by the Director of School Education being without guidelines must be held to be ultra vires in any event, contends the learned Counsel, that a higher qualification cannot be considered to be a bar and in support of his aforementioned contention reliance has been placed on a decision of a division bench of this Court in F.M.A No. 48/92 disposed of on 6th July, 1992, (4) Sri Satyabrata Jana v. Gautam Giri, wherein it has been held that the selection committee is entitled to take into consideration the higher qualification although the same had not been mentioned by the Employment Exchange. It was further submitted that in any event an application for review shall not be maintainable and in support of his aforementioned contention reliance has been placed on (5) State of Uttar Pradesh v. Shri Brahm Datt Sharma reported in (1987) 2 SCC 179 : AIR 1987 SC 943; (6) Aribam ??? Sharma v. ??? Sharma reported in (1979) 4 SCC 389 : AIR 1979 SC 1047; (7) Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt). reported in (1995) 1 SCC 170 : AIR 1995 SC 455.

8. The only question which arises for consideration is as to whether the B.Ed qualification of the writ petitioner could have been taken into consideration by the Selection Committee.

9. It is not disputed that two Employment Exchanges exist, one being Local Employment Exchange and another being National Employment Exchange.

10. Admittedly, the writ petitioner's qualification as B.Sc was recorded in the Local Employment Exchange whereas his qualification of M.Sc and B.Ed were recorded in the National Employment Exchange. It appears that the petitioner's qualification of B.Ed, was recorded with the National Employment Exchange on 10.8.1994 before the date of interview.

11. It is not in dispute that the Director of School Education in exercise of his power conferred upon him under Clauses (i) and (ii) of sub-rule (1) and Clause (i) of sub-rule (2) of Rule 28 of the Rules for management of Recognised Non-Government Institutions (aided and unaided), 1969 read with some other notifications of Education Department issued from time to time was entitled to issue directions as regards recruitment of teaching and non-teaching staff. Such directions have been held to be statutory in nature in various decisions. The writ petitioner did not question the vires of the 1969 rules or the said directions. The said directions was first issued in the year 1981. On or about 17.8.1987 a circular letter was issued by the District Inspector of Schools which reads thus:—

“In reference to above, the undersigned has to state whatever may be the fact marks should be allotted on the basis of the qualification recorded by the Employment Exchange.”

12. The said direction was again made in the year 1989 and was amended in the year 1990. On or about 14.10.92 the Director of School Education Issued another circular bearing No. 2256(19) G.A date 14.10.92 wherein it was stated that for preparing the panel marks should not be awarded on the qualification which was not reported to the Employment Exchange and recorded by them.

13. In the year 1993, however, a fresh direction had been issued by the Director of Education and in Rule 6(a) thereof in no uncertain terms it was stated:—

“No credit shall be given to the qualification other than the qualification mentioned by the D.I.S (SE) in the prior permission and mentioned by the Employment Exchange.”

14. These facts appear to have been noted by the District Inspector of Schools in his order which is contained in Annexure ‘D’ to the review application.

15. In the instant case admittedly sponsorship was sought for from the Local Employment Exchange and not from National Employment Exchange. The Local Employment Exchange sponsored the name of the writ petitioner having merely a B.Sc (Hons.) qualification. His qualification of B.Ed although could have been recorded in the Local Employment Exchange was not so recorded nor the said qualification could have been seat as Employment Exchange admittedly sponsored the names of the candidates much prior to his acquisition of the said qualification.

16. At no point of time the writ petitioner questioned the vires of the said provisions of the directions issued as regards the method and manner of recruitment by the Director of School Education in exercise of its statutory power. In fact, the writ petitioner him self submitted himself to the jurisdiction of the selection committee constituted in terms of the said directions. The writ petitioner, therefore, cannot be permitted to question the vires of the said Rules at this stage. In any event, if the vires of the said provision is to be considered the review application has to be allowed and the State must be given another opportunity to raise its contention as regards validity of the said rules.

17. Section 45(b) of the West Bengal Board of Secondary Education Act confers power upon the State to make rules as regards composition, powers and functions of the Managing Committee of the Institutions which would, by necessary implication, include the restriction on such power by the Board. Admittedly, Rule 28 of the 1969 rules has been framed by the State Government in exercise of its power conferred upon it under Section 45 of the Act.

18. In view of the statutory provision aforementioned there cannot be any doubt that the Selection Committee was bound to follow the recruitment rules which has a statutory force. Even the circulars issued by the Director of School Education were required to be followed by the Selection Committee. The 1993 Rules having come into force with effect from 20.5.1993 would govern the recruitment process as the same began on 30th June, 1994. The Selection Committee or for that matter this Court also, thus, could not have ignored the relevant statutory provisions. This Court in its order dated ???th February, 1995 did not consider any of the ??? mentioned questions nor took into consideration the provision of the statutory rule. The learned Judges merely held:—

“Be that as it may the District Inspector of Schools at Tamluk (Secondary Education) will find out as to whether weightage was given to the writ petitioner-appellant for his obtaining B.Ed degree at all and if it was not done. We will direct a fresh interview to be taken for formation of a fresh panel in accordance with law. We overrule the contention raised by respondent No. 7 that the qualification recorded in the Local Employment Exchange is not enough but it has to be recorded also in the National Employment Exchange. Be that as it may we further direct that in case weightage was not given to the writ petitioner-appellant for his B.Ed degree the interview should be held again where all the previous candidates including respondent No. 7 would be called for such interview.”

19. Such a decision had been arrived at without taking into consideration the relevant rules. It is now well known that an appointment has to be made in terms of the recruitment rules. Any appointment made in violation of such statutory recruitment rule would be ultra vires. Reference in this connection may be made to (8 J & K Public Service Commission v. Dr. Narinder Mohan reported in (1994) 2 SCC 630 and (9) Ravinder Sharma v. Stale of Punjab reported in (1995) 1 SCC 138. This aspect of the matter has also been considered by this Court in (10) Bipad Taran Patra v. State of West Bengal reported in 1994 (2) Calcutta Law Journal 450.

20. This question has also been considered in details by a division bench of this Court in F.M.A.T No. 623 of 1996, (11) Sri Srikumar Pal v. The State of West Bengal, wherein this Court upon taking into consideration a large number of decisions held that in terms of the aforementioned rules, only the qualification recommended by the Employment Exchange can be taken into consideration.

21. This Court held:— “It is not in dispute that the qualification possessed by a candidate at the time of advertisement only is to be taken into consideration. In our opinion, the same principles would apply in a case where vacancies are notified and names are sponsored by the Employment Exchange.”

22. In (12) Harpal Kaur Chahal v. Directors Punjab Instructions, Punjab reported in 1995 Supp (4) SCC 706, the Apex Court held:—

“It is contended for the appellant that since the appellant had been appointed by the duly constituted Departmental Selection Committee and as on the date of interview since the appellant had the qualification, her selection and appointment cannot be said to be illegal. We find no force in the contention. It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates who possessed of all the qualifications as on that date alone are eligible to apply for and to be considered for recruitment according to rules. Since the appellant had not possessed the Physical Training Instructor qualifications as on that date, her illegal consideration by the Board and recommendation for appointment and the appointment made in furtherance thereof are illegal. Therefore, we cannot accept the contention of the learned Counsel in that behalf.”

23. In (13) Rekha Chaturyedi v. University of Rajasthan reported in 1993 Supp (3) SCC 168, the Apex Court held:—

“The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in present even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in presenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices.”

24. On the other hand the Supreme Court while considering the provisions of Rule 37, in (14) Ashok Kumar Sharma v. Chander Shekher reported in 1993 Supp (2) SCC 611 while Interpreting Rule 37 of the Jammu and Kashmir Public Service Commission Business Rules held that qualification acquired as on the date of interview can be taken into consideration. It may be noticed that R.N Sahai, J., took a contrary view. However, Rule 37 of the Jammu and Kashmir Public Service Business Rules provided for such consideration as would appear from a perusal of the said rule itself. Rule 37 of the Public Service Commission Business Rules reads thus:—

“Applications of candidates who have appeared in the examination, the passing of which may make them eligible to appear in an interview for recruitment to a post to be made otherwise than by a competitive examination, but results whereof have not been declared upto the date of making of the application may be entertained provisionally, but no such candidate shall be permitted to take the interview if he is declared as having failed in the examination or if the results are not available on the date the viva-voce test is held.”

25. The said decision, therefore, in our opinion, has no application to the facts of the present case.

26. On the other hand, a three Judges bench in Ravinder Sharma v. State of Punjab reported in (1995) 1 SCC 138, held as follows:—

“The appellant was directly appointed. In such a case, the qualification must be either:—

(i) a Graduate/Intermediate second class, or,

(ii) Matric first class.

Admittedly, the appellant did not possess this qualification. That being so, the appointment is bad. The commission recommended to the Government for relaxation of the qualification under Regulation 7 of the Regulations. The Government rejected that recommendation. Where, therefore, the appointment was clearly against Regulation 7, it was liable to be set aside. That being so, no question of estoppel would ever arise. We respectfully agree with the view taken by the High Court.

It was, however, submitted that the appellant had passed her B.A examination in 1977 and had become a graduate and that therefore, her case may be considered for regularisation on merits with effect from the date of acquiring necessary qualification adumbrated under Regulation 7. The Government is at liberty to do so. It may also be appropriate for the Government to consider this clause. We do not express any opinion on this aspect. The civil appeal is disposed of in the above terms.”

27. In (15) Basudeb Bag v. Bhaskar Chandra Kar reported in 1996 (1) Calcutta Law Journal 230, a bench of this Court had taken into consideration on the decision in Ashok Kumar Sharma's case (supra) while holding that when a process of selection had started the rule prevalent at that point of time shall prevail.

28. The Supreme Court clearly in Jammu & Kashmir Public Service Commission v. Dr. Narinder Mohan reported in (1994) 2 SCC 630 and (16) State of Bihar v. Ramdeo Yadav reported in (1996) 3 SCC 493 held that provision of the rules are required to be taken into consideration on for the purpose of grant of appointment.

29. There cannot be any doubt that in terms of Rule 5(b) all relevant qualifications were to be taken into consideration by the Selection Committee but keeping in view Rule 2(b) aforementioned, can it be said that the qualification of M.A and B.Ed held by the writ petitioner was relevant in the sense that even though the same could not have been considered for the purpose of sponsoring his name by the Employment Exchange, the same can be considered for other purposes. The answer, in our opinion, should be rendered in negative and Rule f(b) must be read with Rule 2(b) aforementioned.

30. In Kerala State Electricity Board v. M.R.F Limited reported in (1996) 1 SCC 597, the Supreme Court held:—

“In an action by way of restitution, no inflexible rule can be laid down. It will be the endeavour of the Court to ensure that a party who had suffered on account of decision of the Court, since finally reversed, should be put back to the position, as far as practicable, in which he would have been if the decision of the Court adversely affecting him had not been passed. In giving full and complete relief in an action for restitution, the Court has not only power but also a duty to order for mesne profits, damages, costs, interest etc. as may deem expedient and fair conforming to Justice to be done in the facts of the case. But in giving such relief, the Court should not be oblivious of any unmerited hardship to be suffered by the party against whom action by way of restitution is taken. In deciding, appropriate action by way of restitution, the Court should take a pragmatic view and frame relief in such a manner as may be reasonable fair and practicable and does not bring about unmerited hardship to either of the parties.”

31. In M.V Venkataramana Bhat v. Returning Officer & Tahsildar reported in (1993) 4 SCC 317, it was held:—

“It is but proper and higher duty of the High Court to tee that its judicial process is not abused and its order does not become an instrument or aid to overreach the adversary and when that interference or finding could be reached on proper consideration of the facts and circumstances, suitable remedy be given.”

32. The applicant had been serving the school for a long time. Even the panel was approved by the District Inspector of School who was the competent authority to do so and in view of the decisions of this Court he had the last say in the matter. See (17) Headmistress, Dubrajpur Girls' High School v. Pradip Kumar Mitia reported in 1993 (2) Cal LJ 240. In this situation the Court, in our opinion, could have allowed the application provided there had been a fragrant violation of the rules. Normally, this Court does not disturb the findings of fact arrived at by the competent authority unless the selection made is contrary to rules.

33. The only question which now remains for consideration is as to whether this Court has any power of review.

34. In Commissioner of Sales Tax, J & K v. Pine Chemical Ltd. reported in (1995) 1 SCC 58, the Apex Court observed that when interpretation of statute law is at variance with the clear and simple language thereof, the same constitutes an error apparent on the face of the record.

35. The power of review is exercised by this Court under Article 226 of the Constitution of India. A writ Court or for that matter any appeal Court deciding an appeal from a decision in exercise of its jurisdiction under Article 226 of the Constitution of India and not under Order 47 Rule 1 of the Code of Civil Procedure. In terms of Section 141 of the Code of Civil Procedure, the provisions of Code of Civil Procedure have no application in relation to a proceedings under Article 226 of the Constitution of India. It is true that in terms of Rule 53 of the writ rules, the Code of Civil Procedures are applicable but as rules can be framed only in respect of the procedural matters, the legal right of a person cannot thereby be taken away. In this view of the matter we are unable to hold that Order 47 Rule 1 of the Code of Civil Procedure ipso facto will have any application in a proceeding under Article 226 of the Constitution of India. This Court cannot loose sight of the fact that the writ Court is not only a Court of law but also a Court of equity. In exercise of its power of review, thus not only it can review its order when there exists an error apparent on the face of the record but also in exercise of its inherent jurisdiction and in the interest of Justice. Reliance in this connection may be made to (18) State of Bihar v. Rameshwar Nath Mishra reported in 1994 (2) PLJR 98.

36. In Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt). reported in (1995) 1 SCC 170 : AIR 1995 SC 455, the Apex Court has held that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1, C.P.C In connection with the limitation of the powers of the Court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 : AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3):—

“It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of Justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.

37. In State of Uttar Pradesh v. Shri Brahm Dutt Sharma reported in (1987) 2 SCC 179 : AIR 1987 SC 943 upon which strong reliance has been placed by the learned Counsel, the Supreme Court was dealing with absolutely different situation.

38. In (19) Himachal Pradesh Road Transport Corporation v. Balwant Singh. reported in 1993 Supp (1) SCC 552 : AIR 1992 SC 2201, as no appeal or review application was filed, the order was held to be final between the parties and thus a belated claim by way of an application for appropriate order of the two years was not entertained. In this case, the error is apparent on the fact of the records as the relevant provisions of the statutory rules have not been taken into consideration.

39. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma reported in (1979) 4 SCC 389 : AIR 1979 SC 1047, the Supreme Court held that the provisions of Code of Civil Procedure applies. In that case the Supreme Court was considering the provisions prior to coming into force of the Code of Civil Procedure (Amendment) Act, 1976.

40. The learned Counsel for the writ petitioner has referred to a division bench decision in Satyabrata Jona v. Gautam Giri disposed of on 6th July, 1992 passed by a division bench of this Court as also a judgement or a learned Single judge of this Court in (20) Narendra Nath Sarkar v. District Inspector of Schools disposed of on 11th May, 1992 (C.O No. 10206(W)/91). The decision of Satyabrata Jana's case (supra) has been distinguished in Srikumar Pal's case inter alia on the ground that the said decision has been rendered per incurium as the relevant statutory rules had not been taken into consideration therein and, thus the same does not create any binding precedent. In Narendra Nath Sarkar's case (supra) also the relevant provisions of the statutory rules have not been taken into consideration. Furthermore, in those case the facts of the matter were absolutely different.

41. It is now also well known that if a decision is contrary to law, the Court will have a power to review such a decision. Reference in this connection may be made to (21) A.R Antulay v. R.S Nayak, AIR 1988 SC 153 wherein also the judgement like one under review was pasted without taking into consideration the provisions of the relevant statute, thus, the said decision must be held to have been passed ??? and/or rendered per incurtum.

42. Moreover, in (22) Goodyear India Ltd. v. State of Haryana reported in (1990) 2 SCC 71 : AIR 1990 SC 781, the Apex Court has clearly held that a question which was not argued cannot be treated to be a precedent on the said point. In Sri Srikumar Pal's case also this Court has held that the decision of Satyabrata Jana in that view of the matter would not constitute a binding precedent.

43. For the reasons aforementioned we have no other options but to review the order dated 20th January, 1995. As we do not find any illegality in the decision of the selection committee, the writ petition must be dismissed and the review application is allowed but in the facts and circumstances of this case there will be no order as to costs.

44. Nand. J.: I agree.

45. S.K.G