JUDGMENT K. J. Sengupta, J.:- 1. This appeal is preferred to impugn the judgment and order of the learned Single Judge dated 20th September, 2005 passed in the aforesaid writ petition. By the impugned judgment and order the learned Trial Judge has been pleased to set aside the selection process and/or panel which was challenged in the writ petition. 2. The facts and circumstances of the case which gives rise filing writ petition consequently preferring appeal are as follows:- The writ petitioner being the respondent No.1 herein and the appellant along with other candidates applied in response to advertisement issued by the West Bengal Regional School Service Commission (Southern Region) being respondent No.3 for filling up the post of Headmaster in a High School by the name of Dakshin Nangla K.U. Institution, P.O. – Kumra Kashipur, in the district of North 24 Parganas. The said school is a High School and medium of instruction is Bengali. Both of them appeared along with other eligible candidates and all participated in the selection process. The respondent No.3 found the appellant herein being successful candidate and accordingly placed him in the first position, whereas respondent No.1 was placed in the third position. 3. Accordingly respondent No.3 recommended the appellant herein for appointment to the said post and the School Authority was also asked to issue letter of appointment. After participating the respondent No.1 herein discovered later that the appellant did not possess requisite minimum qualification for participating in the selection process namely to take interview along with him. To elaborate the extent of disqualification of the appellant respondent No.1 stated in his petition firstly the appellant was an immigrant from Bangladesh and he got his early education in the year 1977 in Bangladesh hence by virtue of the circular being No. 8 Z Edn. (S) / 4A- 17/82 dated 21st January, 1980 issued by the State of West Bengal the Marksheet and Certificate issued by Bangladeshi school were required to be verified through Ministry of External Affairs, Government of India for acceptance in this country, secondly, he did not have requisite essential additional qualification as he could not secure minimum 45% marks in his Graduation level. Academically the writ petitioner/respondent No.1 was thus better candidate as having not only all the school level educational qualifications but secured regular honours bachelor degree followed by post graduation degree and also requisite teaching experience and other qualifications. Thus according to him the appellant herein was not eligible for appearing in interview on 25th November 2002. This writ petition was opposed obviously by the appellant herein and also the School Service Commission. Both the parties filed affidavit-in-opposition separately. In the affidavit-in-opposition it was stated amongst others that by virtue of subsequent two circulars being Memo No. 82–Edn(s) / 4A-17/82 dated 21-1-88 / 2-2-88 and No. 488-Edn(s) / 44-17/82 dated 21.4.88 issued by the Government of West Bengal, Education Department the verification by External Affairs Ministry as spoken of in the writ petition was not required in case where higher education has been obtained by the candidate basing on the certificates issued by the Bangladeshi School to the immigrants. He has become an Indian citizen, an Income Tax payee and has Ration Card and then has become the voter. Hence under any stretch of imagination he cannot be described as immigrant. It is also stated that the appellant fulfils all the eligibility criteria as he secured second division in the Matriculation level, similar standard of result was secured in the Higher Secondary level and he could not complete Bachelor Degree with Honours however, he did it as a Special Course and then he did Post Graduation. He has requisite teaching experience and also other essential qualifications to become Head Master of Secondary School as required under the Recruitment Rules and in terms of the advertisement. 4. Learned Trial Judge allowed the writ petition. 5. The learned Trial Judge while allowing writ petition found that the Selection Committee did not consider at all the essential additional points as embodied in Clause D(i) of the advertisement. The learned Trial Judge was also of the view that no weightage should have been given for the assessment of the eligibility for securing special honours course. According to the learned Trial Judge those irregularities are absolutely fatal to uphold the selection process. 6. Mr. The learned Trial Judge was also of the view that no weightage should have been given for the assessment of the eligibility for securing special honours course. According to the learned Trial Judge those irregularities are absolutely fatal to uphold the selection process. 6. Mr. Sagar Bandopadhyay learned counsel appearing for the appellant submits that firstly judgment and order of the learned Trial Judge is patently erroneous as it was rendered on total non-application of mind and even non-consideration of the relevant materials and documents produced not only by the appellant but also by the respondent No.3 herein. 7. It is urged with emphasis that non-application of mind resulted because the judgment was delivered after more than two years three months after the conclusion of the hearing of the matter. 8. He submits that learned Trial Judge totally overlooked the basic issue raised in the writ petition. The issue in the writ petition was regarding eligibility to appear in the interview not the selection process. Learned Trial Judge nowhere made any effort to find whether the appellant is eligible to participate in the selection process, which was precisely questioned in the writ petition. 9. Learned counsel contends that in order to become an eligible to participate in the selection process the appellant has fulfilled all the criteria as it will appear from the advertisement issued and also in the relevant rules for recruitment of Headmaster of a High School. The essential additional points which are spoken about in the writ petition has been a ground for alleged disqualification of the appellant is relatable to the selection not the eligibility to participate in the selection process. It will appear from the relevant rules that no written test was required to be taken, only the basis of selection is assessment of the academic qualification and for which separate marks have been allotted for each and every level of educational qualification and also separate marks have also been allotted for taking viva voce test. After assessing performance of the respective candidates the School Service Commission has prepared a merit list showing performance of seven candidates. The appellant could secure 35 marks whereas the first respondent could secure 34 marks. In the merit list it appears that marks have been allocated. 10. Learned counsel submits that after having participated in the selection process and after having unsuccessful it is no longer open to challenge. The appellant could secure 35 marks whereas the first respondent could secure 34 marks. In the merit list it appears that marks have been allocated. 10. Learned counsel submits that after having participated in the selection process and after having unsuccessful it is no longer open to challenge. This merit list has not been challenged by filing any affidavit-in-reply. According to him drawing reference to judgment of the Supreme Court in case of M/s. B.S.N. Joshi & Sons Ltd. –vs.- Nair Coal Services Ltd. reported in AIR 2007 SC 437 even if there is any irregularity it cannot be questioned before the Court of law when it is to be found that the decision is not unfair. 11. He submits further with support of the decision of Supreme Court in case of Dr. Krishna Chandra Sahu & others –vs.- State of Orissa & others reported in AIR 1996 SC 352 that the decision of the Selection Committee can be interfered with only on limited grounds namely that there has been illegality or material irregularity in the constitution of the Committee or in its procedure vitiating the selection or proof of mala fide affecting selection. 12. Mr. Tapabrata Chakraborty, learned counsel appearing for the respondent No.3, School Service Commission supports argument of the learned counsel for the appellant and adds that after consideration of the academic qualification, experience and interview the appellant was found to be the most successful accordingly he was placed in the first position. The panel was prepared and his name was recommended for the post of Headmaster in the said School. The allotment of marks has been made strictly in accordance with instruction given by the Deputy Secretary, School Education Department, Government of West Bengal by memo No. 76-AC (S) / IS-6/97 dated 29th January, 1998 to the Secretary, West Bengal Central School Service Commission. In the said memo it has been specifically laid down for condensed Honours Degree, 5 marks will be allotted and according to such instruction the respondent No.8 was given 5 marks for his condensed Honours Course in Degree. 13. Mr. In the said memo it has been specifically laid down for condensed Honours Degree, 5 marks will be allotted and according to such instruction the respondent No.8 was given 5 marks for his condensed Honours Course in Degree. 13. Mr. Kashi Kanta Moitra, learned Senior Counsel for the respondent no.1 while supporting the judgment of the learned Trial Judge contends that it has been specifically mentioned by the School Service Commission that in order to become eligible for appearing at the interview one has to fulfil essential additional eligibility namely the candidate must have secured not less than 45% marks at the Pass Graduation level without having any Honours. Admittedly, the appellant could not secure honours degree at his Graduation level and he could secure honours degree by undergoing special course which is not permissible under the aforesaid published norms. Hence not only his appearance before the Selection Committee is, but also his selection is, contrary to the norms published by the School Service Commission. Hence entire selection process is vitiated. Learned Trial Judge has taken special note of this infraction of the aforesaid essential condition with regard to eligibility. The School Service Commission is a statutory body and is a state within meaning of Article 12 of the Constitution of India. 14. He submits that every action of the State must conform to the befitting degree of fairness, and absence of elements of arbitrariness. It cannot deviate from its own published norms. In case of deviation of its published norms, which results in unfairness it cannot stand to the scrutiny of Article 14 of the Constitution of India. In support of his submission he has relied on the decisions of the Supreme Court in case of Ramana Dayaram Shetty v. The International Airport Authority of India and ors. reported in AIR 1979 SC 1628 at page 1632 paragraph 6, paragraph 16 at page 1635, AIR 1998 SC 1289 and AIR 2002 SC 2391 . 15. After having considered the contention of the learned counsel of the parties and having gone through the materials the decision of this Court is required to be rendered on the following points: (i) Whether the learned Trial Judge has failed to consider the issue really involved in the writ petition or not? (ii) Whether the learned Trial Judge has ignored the relevant materials produced before him while allowing the writ petition or not? 16. (ii) Whether the learned Trial Judge has ignored the relevant materials produced before him while allowing the writ petition or not? 16. Admittedly, the first respondent participated in selection process along with the appellant. There is no dispute both the candidates are having Post Graduation Degree. Both the candidates secured second division marks in their school education. However, the first respondent secured regular Honours Graduate with 45% marks, whereas appellant secured below 45% marks but above 40% in Graduation level (Pass) but subsequently he secured Honours Degree qualification in Special Course. Admittedly, both the candidates had and still have requisite teaching experience and other eligibility criteria. 17. It appears from the close look of the statements and averments of the writ petition and subsequent affidavit the first respondent really questioned the eligibility of the appellant to participate in the selection process as it could be found in paragraph 14 of the writ petition, and it is therefore of utmost necessity to set out the eligibility criteria for participating selection process as published in the advertisement. “(i) Master degree with degree in Bachelor of teaching/Bachelor of Education/Post Graduate Basic Training from any recognised university or any training recognised by the Government of West Bengal as equivalent to Bachelor of Teaching/Bachelor of Education/Post Graduate Basic training, 10 years continuous teaching experience in approved service in a Higher Secondary/High School/High Madrasah/Junior High Madrasah/Junior High School/Senior Madrasah recognises by the West Bengal Board of Secondary Education/West Bengal Council of Higher Secondary Education/West Bengal Board of Madrasah Education on the date of advertisement. (D) Essential additional points: (i) There will be a written test for such selection for all the above posts. But for selection for the post of Head Master in Higher Secondary/High School/High Madrasah/Senior Madrasah, the candidates for all the categories of posts as mentioned, must have obtained at least (a) 45% (forty five percent) marks both at the Secondary and the Higher Secondary level, (b) 40% (forty per cent) marks in the Hons subject or 45% (forty five percent) marks at pass level for a candidate without having Hons. and (c) 40% (forty per cent) marks at the post graduate level to secure eligible for such posts.” 18. It will appear therefrom that once aforesaid eligibility criteria are fulfilled by any of the candidates he is entitled to participate in the selection process. and (c) 40% (forty per cent) marks at the post graduate level to secure eligible for such posts.” 18. It will appear therefrom that once aforesaid eligibility criteria are fulfilled by any of the candidates he is entitled to participate in the selection process. The learned Trial Judge has totally overlooked this aspect and really has been led to misdirect himself to rely on the next clause for the selection of the candidates in order to allow the writ petition. In our view that the learned Trial Judge has set aside the selection process not on the issues involved but on some other issues which were not agitated before His Lordship, as it has been rightly contended by Mr. Bandopadhyay the litigants are not permitted to do so in view of the Supreme Court judgment rendered in case of M/s. B.S.N. Joshi & Sons v. Nair Coal Services Ltd. reported in AIR 2007 SC 437 . In the said judgment the Supreme on this aspect had laid down the law which we have come to the conclusion. While relying on an earlier decision of the Supreme Court in case of Chimajirao Kanhojirao Shirke and another v. Oriental Fire & General Insurance Co. Ltd. reported in (2000) 6 SCC 622 to decide the above issue in paragraph 38 of the report the Supreme Court has recorded as follows:- “Before we embark upon the respective contentions made before us on the said issue, we may notice that although the point was urged during hearing before the High Court, the First Respondent in its writ application did not raise any plea in that behalf. The High Court was not correct in allowing First Respondent to raise the said contention.” 19. Here we notice that the issue was not really raised as regard method of selection nonetheless the learned Trial Judge has decided so. 20. We are unable to accept the contention of Mr. Moitra that the essential additional point is the basis as an eligibility to participate in the selection process. We think that the Service Commission has not departed from any published norms or any rules and regulations, nor it can be held that their act and action is arbitrary or mala fide. Therefore, the decisions cited in support of the legal proposition propounded by him are of no help in this case. We think that the Service Commission has not departed from any published norms or any rules and regulations, nor it can be held that their act and action is arbitrary or mala fide. Therefore, the decisions cited in support of the legal proposition propounded by him are of no help in this case. The essential additional points as referred to in paragraph 7 of the said writ petition in our view at the highest are relatable to the selection process, even if it is taken as face value the said essential points nowhere records that if any candidate secures below 45% marks in Graduation Level (Pass) he is altogether disqualified and he cannot be selected at all. 21. On the other hand as appropriately pointed by Mr. Tapabrata Chakraborty from the affidavit of his client that entire selection process has been held based on the instruction given by the Government by specific circular as mentioned above. It is also stated that the said circular enables the Service Commission to allow the marks to the candidate who is secured condensed honours degree. Accordingly five marks have been allocated to the appellant. It is appropriate to record that there is no denial as no affidavit-in-reply has been filed to challenge this selection procedure based on the aforesaid circular. In view of the non-traversal of this essential averment which really clinches the issue, this Court has to hold that the School Service Commission has followed the published norms and rules as laid down by the Government. The essential additional points mentioned in the advertisement cannot be read inconsistent with the Government circular and direction. We think that in this case there is no scope to act otherwise while allocating the marks for the academic qualifications of the candidates are concerned. There is no challenge to the allocation of marks in the viva voce test hence this evaluation of the performance in viva voce of the candidates has to be accepted. The learned Trial Judge unfortunately did not advert to those materials. 22. As far as the verification of the school education certificate obtained in Bangladesh by the appellant is concerned, as rightly pointed out by the learned counsel Mr. The learned Trial Judge unfortunately did not advert to those materials. 22. As far as the verification of the school education certificate obtained in Bangladesh by the appellant is concerned, as rightly pointed out by the learned counsel Mr. Bandopadhyay in view of the subsequent instruction by the Education Department on 21st April 1988 at page 66 of the paper book the same is not required as the same supercedes earlier circular dated 21st January 1980 referred to and relied on by the writ petitioner/respondent No.1. By virtue of this 1988 circular on obtaining qualification in this country after immigration such verification is not required. 23. In view of the acquisition of citizenship in this country and becoming the voter in this country the appellant cannot be said to be an immigrant at all and that will amount to refusal to recognize constitutional status. Such a plea cannot be permitted to be raised in view of the overwhelming document. 24. We are therefore unable to accept the findings and judgment of the learned Trial Judge. The same is accordingly set aside. 25. Now the School Authority shall act in terms of the recommendation made by the School Service Commission and shall issue letter of appointment forthwith. The appeal thus succeeds with costs assessed to 100 GMs to be paid by the writ petitioner/respondent to the appellant.