JUDGMENT : 1. These writ petitions, each at the instance of several petitioners, along with 4 (four) others were presented originally before the Supreme Court under Article 32 of the Constitution of India. After substantial hearing on diverse dates, the Bench presided over by the Hon’ble the Chief Justice of India considered it proper that the writ petitions should be heard and decided by the appropriate Bench of the Calcutta High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. An order dated December 4, 2014 was recorded whereby all such writ petitions were disposed of with the pending applications, and transferred for decision by the Calcutta High Court. On such transfer, the writ petitions were re-numbered and placed before the Hon’ble the Chief Justice. By an order dated March 3, 2015, Her Ladyship assigned these writ petitions and the others for hearing by this Bench. 2. On March 26, 2015, all the writ petitions were listed before this Bench. It was ascertained that subject matters of all the writ petitions are not common. An order was accordingly passed, segregating the writ petitions and it was directed that the matters pertaining to primary education shall form a bunch while those pertaining to secondary education shall form another bunch and considered separately. A writ petition, which the Bench had been informed, was filed in public interest, stood released for being placed before the appropriate Bench taking up public interest litigation. 3. The present bunch of writ petitions pertains to recruitment of primary teachers. In view of commonality of the subject matter of challenge, this Bench proposes to dispose of these writ petitions by this common judgment and order. 4. At the heart of the controversy is the Teachers’ Eligibility Test (hereafter the TET) conducted by the West Bengal Board of Primary Education (hereafter the Board) for appointing assistant teachers in primary schools all over West Bengal. 4. At the heart of the controversy is the Teachers’ Eligibility Test (hereafter the TET) conducted by the West Bengal Board of Primary Education (hereafter the Board) for appointing assistant teachers in primary schools all over West Bengal. The petitioners, perceiving an ulterior motive behind a concerted effort on the part of the State of West Bengal and the Board not to recruit trained candidates on the posts of primary teachers but to fill up such posts by appointing candidates who do not possess requisite training qualification prescribed by the National Council for Teacher Education (hereafter the NCTE), despite there being sufficient numbers of trained candidates waiting in the queue for appointment, had exercised their fundamental right guaranteed by Article 32 of the Constitution by approaching the Supreme Court seeking redress of their grievance. 5. The introductory facts leading to presentation of the writ petitions before the Supreme Court may now be noticed. 6. Consequent upon introduction of Article 21A in Part III of the Constitution, the Right of Children to Free and Compulsory Education Act, 2009 (hereafter the RTE Act) emerged, seeking to provide free and compulsory education to all children of the age of six to fourteen years. Discussion of the scheme of the RTE Act in detail is unnecessary for the purpose of decision on these writ petitions. However, only one provision having a bearing on the issue raised by the petitioners may be referred to. 7. Section 23 of the RTE Act, providing for qualifications for appointment and terms and conditions of service of teachers, lays down as follows: “23. Qualifications for appointment and terms and conditions of service of teachers.—(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. Qualifications for appointment and terms and conditions of service of teachers.—(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering courses ortraining in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years. (3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.” 8. It is not in dispute that the Central Government, exercising power conferred by sub-section (1) of section 23, has by notification no. S.O. 750(E) dated March 31, 2010 authorised the NCTE to lay down the minimum qualifications for a person to be eligible for appointment as a teacher and in pursuance thereof, the NCTE has in fact laid down such qualifications by notification dated August 23, 2010, since amended by notification dated July 29, 2011. 9. It is also undisputed that by notification dated July 24, 2012, amendments have been incorporated in the West Bengal Primary School Teachers Recruitment Rules, 2001 (hereafter the Recruitment Rules) laying down qualifications for appointment as primary teacher in conformity with the said notifications dated August 23, 2010 and July 29, 2011. 10. In the meanwhile, the State of West Bengal submitted a proposal to the Central Government vide letter dated February 1, 2011 for grant of relaxation of the minimum qualification norms laid down by the NCTE. The Central Government purportedly examined and considered such proposal and granted relaxation by a notification dated June 1, 2011, issued in exercise of power conferred by subsection (2) of section 23 of the RTE Act, in the following terms: “6. The Central Government purportedly examined and considered such proposal and granted relaxation by a notification dated June 1, 2011, issued in exercise of power conferred by subsection (2) of section 23 of the RTE Act, in the following terms: “6. Now therefore, in exercise of the powers conferred by sub-section (2) of Section 23 of the RTE Act, the Central Government hereby grants relaxation to the State Government of West Bengal in respect of the minimum teacher qualification norms notified by the NCTE as published in the Gazette of India vide No. 215 dated the 25th August, 2010 in far as they relate to classes I-VIII as under:- (a) 2 year diploma in Elementary Education (by whatever name known) for appointment of a teacher in classes I-V and (b) 1 year Bachelors in Education (B.Ed.) for appointment for a teacher in classes VI to VIII. Note 1: The aforementioned relaxation shall be valid up to 31st March, 2014 and shall be subject to the following conditions, namely:- (i) as specified in the aforementioned Notification of the NCTE, the State Government of West Bengal shall conduct the Teacher Eligibility Test (herein after referred to as TET) in accordance with Guidelines dated the 11th February to as NCTE with Guidelines dated the 11th February, 2011 issued by the NCTE and only those persons who pass the TET can be considered for appointment as a teacher in elementary classes; (ii) the State Government and other school managements shall amend the Recruitment rules to correspond with the minimum qualification norms laid down by the aforementioned notification of the NCTE; (iii) in the matter of appointment, the State Government shall give priority to those eligible candidates who posses the minimum qualifications specified in the NCTE’s notification dated the 25th August, 2010, and only thereafter consider the eligible candidates with the relaxed qualification specified in this notification; (iv) advertisement for appointment of teachers should be given wide publicity including outside the State; (v) the State Government and other school managements shall ensure that teachers not possessing the minimum academic and professional qualifications laid down in the aforementioned notification of the NCTE shall acquire the same within the limit specified under sub-section (2) of Section 23 of the RTE Act; (vi) the State Government and other school managements shall ensure that teachers who are appointed under the relaxed qualification norms acquire the minimum qualification specified in the NCTE notification norms acquire the minimum qualification specified in the NCTE notification within a period of two years from the year of appointment; (vii) the relaxation specified in this notification shall be one time and no further relaxation under sub-section (2) of section 23 shall be granted to the State Government. In accordance with sub para (iii) of para 5 of the TET Guidelines issued by the NCTE vide its letter dated the 11th February 2011 the following persons shall also be eligible for appearing in the TET conducted by the State Government of West Bengal in respect of teacher appointments made in the State upto the 31st March 2014 (i) for classes I to V – Senior Secondary (or equivalent) with at least 50% marks; (ii) for classes VI to VIII – Graduation with at least 50% marks.” [quoted from pgs. 56-60 of W.P.5357(W) of 2015] 11. In due course of time, on October 19, 2012 to be precise, an advertisement was published at the instance of the President of the Board inviting applications from eligible candidates for appointment on vacant posts of assistant teachers in government aided/sponsored primary/junior basic schools under district primary school councils. The terms of the advertisement were in consonance with the Recruitment Rules, as amended. Qualifications of candidates (except age) and manner of selection were indicated against clauses 2 and 4 respectively of such advertisement, reading as follows: “2. Qualification: (a) Citizenship of India or such other nationalities as are declared eligible by Government of India; or (b) Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known); or (c) Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the National Council for Teacher Education (Recognition Norms and Procedure) Regulations 2002; or (d) Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks and Diploma in Education (Special Education); or (e) Graduation and two year Diploma in Elementary Education (by whatever name known); or (f) Ability to read, write and speak in the language relating to the medium for which the candidate wishes to apply. Note 1. – A person with D. Ed. (Special Education) or B. Ed. (Special Education) qualification shall, after appointment, undergo six month special programme in Elementary Education recognized by the NCTE. Note 2. – The persons having qualification of Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks or graduate (irrespective of marks obtained therein) or equivalent without 2-year Diploma in Elementary Education (by whatever name known) or 4-year Bachelor of Elementary Education (B. El. Note 2. – The persons having qualification of Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks or graduate (irrespective of marks obtained therein) or equivalent without 2-year Diploma in Elementary Education (by whatever name known) or 4-year Bachelor of Elementary Education (B. El. Ed.) or 2-year Diploma in Education (Special Education) shall also be eligible for appearing in the Teacher Eligibility Test (TET) to be conducted for appointment of primary school teachers in the State upto 31st March, 2014, subject to condition that those who are appointed without professional qualification shall acquire the professional qualification within a period of two (2) years from the year of appointment. Provided that in case of Santhali as medium of instruction, the candidate shall only require to possess proficiency of reading, writing and speaking of OLCHIKI SCRIPTS. It shall not be obligatory for the candidates seeking appointment to the post of primary school teacher in Santhali medium schools to have passed in the specific language as the first or the second language in the Higher Secondary Level or equivalent for which medium or instruction, the candidate is seeking appointment. Candidates belonging to reserved categories SC/ST/OBC/PH/EC shall be allowed relaxation upto 5% in the qualifying marks.” “4. Manner of Selection: (a) The Teacher Eligibility Test (TET) shall be held as per guidelines issued from the time to time by the National Council for Teacher Education and a person who will score 60% or above in the Teacher Eligibility Test (TET) examination shall be considered as Teacher Eligibility Test (TET) pass provided relaxation upto 5% marks shall be allowed to the candidates belonging to the reserved categories, such SC/ST/OBC/PH/EC. (b) Teacher Eligibility Test (TET) examination shall be held in 100 marks consisting of the following five (5) sections; (a) Section I-Child Development – 20 Marks (b) Section II- Language I – 20 Marks (c) Section III – Language II – 20 Marks (d) Section IV – Mathematics – 20 Marks (e) Section V – Environmental Science – 20 Marks Note 1. – All questions shall be multiple choice types with four alternatives out of which one option will be correct. All questions shall be compulsory and each item shall carry one mark. But there will be no negative marking. Note 2. – All questions shall be multiple choice types with four alternatives out of which one option will be correct. All questions shall be compulsory and each item shall carry one mark. But there will be no negative marking. Note 2. – First Language of the candidate shall be determined as per the medium of instruction of the primary school for which the vacancy occurred and Second Language be English. (c) The Selection Committee shall call all Teacher Eligibility Test (TET) qualified candidates as mentioned in Sub-rule (2), for the Viva Voce/Interview. The performance of the candidate who will be called for Viva-Voce/interview shall be assessed out of 10 marks by the interview Board formed for the specific purpose. (d) Thereafter, academic, training, performance in Teacher Eligibility Test (TET), Extra Curricular Activities and performance in Viva Voce/Interview of the candidates appeared at the Viva Voce/Interview shall be computed in the following manner as mentioned in Table A below: Table A (i) Madhyamik pass under the West Bengal Board 10 (ii) Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent 15 (iii) Training as prescribed in Sub-rule (2) of rule 6 20 (iv) Teacher Eligibility Test (TET) 40 (v) Extra Curricular Activities 05 (vi) Total 90 (vii) Viva-Voce or Interview 10 (viii) Total 100 Note 1. – The percentage of marks to the full marks obtained by the candidate in the Madhyamik Examination or its equivalent excluding additional marks, if any, shall be computed as percentage of 10. Note 2. – The percentage of marks to the total full marks obtained by the candidate in the H.S. Examination or its equivalent excluding additional marks, if any, shall be computed as percentage of 15. Note 3. – 70% and above marks obtained by the candidate in Training shall be awarded 20, 50% above but below 70% marks obtained by the candidate in training shall be awarded 17 and below 50% marks but passed in the Training by the candidate shall be awarded 15. Note 4. – The percentage of marks to the full marks obtained by the Teacher Eligibility Test (TET) qualified candidate in Teacher Eligibility Test (TET), shall be computed as percentage of 40. Note 5. Note 4. – The percentage of marks to the full marks obtained by the Teacher Eligibility Test (TET) qualified candidate in Teacher Eligibility Test (TET), shall be computed as percentage of 40. Note 5. – Maximum five (5) Marks shall be awarded to the candidates in the Extra Curriculum Activities on the following Extra Curriculum Activities:- 1 Games and Sports - 1 2 National Cadet Corps (NCC) – 1 3 Arts and Literature – 1 4 Performing Art (Drama) – 1 5 Music – 1 Total – 5 (a) A certificate of representation in the State/National/International Level Games or sports issued by the Competent State Government or Central Government authorities or agencies, shall be awarded (01) mark. (b) Minimum ‘A’ Certificate of National Cadet Corps (NCC) shall be awarded (01) Mark. (c) A certificate that any essay, story, short story, drama, poetry written by the candidate selected for publication in State level or National newspaper or Magazine (Certificate along with a copy of publication shall be submitted), shall be awarded (01) Mark. (d) A certificate that the candidates has obtained proficiency in Performing Art (drama) issued by National School or Drama or by the State Government or Central Government shall be awarded (01) mark. (e) A certificate that the candidate has obtained proficiency in Music or instrumental Music issued by the State Government or Central Government shall be awarded (01) mark.” [quoted from pgs. 61-67 of W.P. 5357(W) of 2015] 12. The TET was scheduled to be conducted by the Board on a single day throughout the State of West Bengal, date whereof was to be notified later. 13. All the petitioners (barring those who figure as petitioners in W.P. 5373(W) of 2015) offered their candidature in response to such advertisement by submitting separate applications. They participated in the written examination in connection with the TET that was conducted in various centres in the State on March 31, 2013. The results of the TET were declared on November 22, 2013, whereafter all the TET qualified candidates were informed vide notice dated December 6, 2013 that viva voce for recruitment would be conducted on December 14 and 15, 2013. 14. While W.P. 5357(W) of 2015 [earlier W.P. (Civil) No.39 of 2013] came to be presented before the Supreme Court in early January, 2013, the other writ petitions were presented in January 2014. 15. 14. While W.P. 5357(W) of 2015 [earlier W.P. (Civil) No.39 of 2013] came to be presented before the Supreme Court in early January, 2013, the other writ petitions were presented in January 2014. 15. While hearing the writ petitions, the Supreme Court had, by an order dated February 25, 2014, invited the State to file a counter affidavit and to disclose information on the following points: a) How many teachers with requisite qualification are available for appointment? b) How many of them are trained and how many of them are untrained as per Rules? c) How many posts are available? d) In the test also, how many trained and qualified teachers passed; and how many qualified and untrained teachers have passed; and how many unqualified and untrained candidates passed? b) How many of them are trained and how many of them are untrained as per Rules? c) How many posts are available? d) In the test also, how many trained and qualified teachers passed; and how many qualified and untrained teachers have passed; and how many unqualified and untrained candidates passed? In its counter affidavit, the State had inter alia disclosed as follows: “(a) With reference to the query No. 1, this is to submit that if the query ‘teachers with requisite qualification are available for appointment’ is meant to be the number of total candidates who appeared in the selection tests held by the said Commission and Board, the number may be set out as follows:- (i) West Bengal School Service Commission – 6,46,278 (ii) The West Bengal Board of Primary Education – 17,50,895 If the query ‘teachers with requisite qualification are available for appointment’ is meant to be the number of total candidates who were empanelled after selection process for appointment, the number may be set out as follows:- (i) West Bengal School Service Commission – 36, 140 (ii) The West Bengal Board of Primary Education – 18793 (b) With reference to the query No. 2, this is to submit that if the query ‘teachers with requisite qualification are available for appointment’ is meant to be number of total candidates appeared in the selection tests held by the said Commission and Board, the number may be set out as follows:- West Bengal School Service Commission- Trained – 82, 517 Un-Trained – 5,63,761 The West Bengal Board of Primary Education Trained – 16,668 Un-Trained – 17,34,227 If the query ‘teachers with requisite qualification are available for appointment’ is meant to be the number of total candidates who were empanelled after selection process for appointment, the number may be set out as follows:- West Bengal School Service Commission Trained – 16871 Un-Trained – 19269 The West Bengal Board of Primary Education Trained – 1089 Un-Trained – 17704 (c) With reference to the query No. 3, the availability of posts may be set out as follows:- West Bengal School Service Commission – 46, 401 The West Bengal Board of Primary Education – 34559 (d) With reference to the query No. 4, the following may be set out:- (i) West Bengal School Service Commission a) Trained and qualified passed – 15802 b) Qualified and untrained passed – 13773 c) Unqualified and untrained passed - Nil (ii) The West Bengal Board of Primary Education a) Trained and qualified passed – 1089 b) Qualified and untrained passed 17704 c) Unqualified and untrained passed – Under Verification.” 16. Referring to all these facts, Mr. Mazumdar, learned advocate representing the petitioners [barring those who figure as petitioners in W.P. No. 5357(W) of 2015] contended that the entire process of selection stands tainted owing to glaring illegalities. According to him, the guidelines of the NCTE in relation to conduct of TET were observed in the breach. Despite sufficient numbers of trained candidates being available, the State misled the Central Government in believing to the contrary leading to grant of relaxation in terms of provisions contained in sub-section (2) of section 23 of the RTE Act and consequently, untrained candidates were allowed to gain entry into the zone of participation. That apart, neither the subjects on which questions were set for candidates appearing in the TET were in conformity with the guidelines laid down by the NCTE in this behalf nor was the examination of the required duration. It was contended that the question papers set by the Board that the candidates had been called upon to answer were examined by a special committee constituted by the NCTE which submitted a report on September 24, 2013 endorsing that questions set were not in conformity with the NCTE guidelines. Exclusion of (Pedagogy) from the question paper altogether was cited as an instance of not conforming to the NCTE guidelines. Grave concern was expressed by him to the effect that the object that the RTE Act seeks to achieve has been sought to be frustrated by the State as well as the Board by allowing ineligible candidates to be considered for appointment as primary teachers. Mala fide being writ large on the selection process, he prayed for quashing of the entire selection process and for declaring that the notification allowing untrained teachers to appear for the TET is ultra vires. He also prayed that mandamus be issued directing the State and the Board to implement a process whereby trained teachers are given preference to untrained teachers in respect of filling up of vacant posts of assistant teachers in primary schools all over the State. 17. Appearing in support of W.P. No. 5357(W) of 2015, Mr. Soumen Kumar Dutta,learned advocate echoed the submissions of Mr. Mazumdar. In addition, he contended that the Board as well as the State Government had made a mockery of the guidelines of the NCTE. 17. Appearing in support of W.P. No. 5357(W) of 2015, Mr. Soumen Kumar Dutta,learned advocate echoed the submissions of Mr. Mazumdar. In addition, he contended that the Board as well as the State Government had made a mockery of the guidelines of the NCTE. He sought to demonstrate how in subversion of such guidelines attempt has been made to bestow undue favour on the untrained candidates. According to him, a candidate aspiring for appointment as a primary teacher must be a Higher Secondary passed candidate with minimum 45% marks or a graduate with 50% marks; however, the advertisement was drafted in such a manner that a simple graduate, irrespective of the % of marks obtained at the graduation level and even without obtaining 45% marks at the Higher Secondary level would be eligible to offer his candidature. This, he contended, amounts to subversion of the NCTE guidelines and seeks to frustrate the object of the RTE Act. Accordingly, he prayed for judicial interdiction. 18. Except for obtaining certain clarifications on factual aspects, this Bench has not considered it necessary to call upon Mr. Gupta, learned Additional Advocate General representing the Board to oppose the writ petitions by advancing arguments on its merits. Other learned advocates were also not called upon to respond. 19. It ought to be recorded that in course of hearing of the writ petitions at the preliminary stage on April 27, 2015, it appeared to this Bench that the appointees ought to be put on notice. Accordingly, an order was passed for publication of notice inviting such appointees to appear and oppose the writ petitions. An affidavit of service has been filed pleading that due publication was made. However, none of the appointees entered appearance and the writ petitions have accordingly been heard in their absence. DECISION 20. W.P. No. 5357(W) of 2015 is proposed to be dealt with separately at a later part of this judgment. 21. From the factual narrative, it is clear that apart from W.P. No. 5357(W) of 2015 all the other writ petitions have been presented after the results were declared when such petitioners [except the petitioners in W.P. No.5373(W) of 2015 who did not at all respond to the advertisement] found that they had not qualified for appointment. The advertisement clearly mentioned the number of vacant posts on which appointments were intended. The advertisement clearly mentioned the number of vacant posts on which appointments were intended. The duration of the written examination, the subjects on which questions were to be set and the pass percentage had also been made known to the aspiring candidates through such advertisement. With a little effort, the petitioners could have ascertained the exact number of trained candidates who were interested in obtaining appointment as primary teachers. An attack could have been launched by the petitioners before the written examination was actually conducted on the perceivably genuine ground that despite sufficient numbers of trained candidates being available for appointment, the State and the Board have been proceeding with a mala fide motive of keeping the door ajar for untrained candidates to offer their candidature although in the normal run of events they were not eligible to so offer. Mysteriously, even none took the written examination by lodging a prior protest. The question that obviously arises under the circumstances is, why the petitioners waited for publication of the results to approach the Court for redress of their grievance. Should their claims fail by application of the principles of estoppel, waiver and acquiescence? This Bench would now venture to find an answer to such question. 22. In Dr. G. Sarana vs. University of Lucknow, reported in AIR 1976 SC 2428 , the University had put up an advertisement inviting applications from candidates to fill up a vacant post of Professor of Anthropology. The appellant and the respondent no. 8 had applied for the post in response to the advertisement. A Selection Committee of five members, comprised of the Vice-Chancellor of the University, the Head of the Department of Hindi of the University and three experts, was constituted, who met to interview the candidates and to make their recommendation to the Executive Council of the University. After interviewing the aforesaid two candidates, the Selection Committee resolved to recommend the respondent no. 8 for appointment on the aforesaid post of Professor of Anthropology. On coming to know of the recommendation, the appellant filed a writ petition challenging the recommendation mainly on the ground that two out of the aforesaid three experts were biased against him and in favour of the respondent no. 8. It was alleged by the appellant that the respondent had close relations with the aforesaid two experts as he was instrumental in obtaining many remunerative assignments for them. 8. It was alleged by the appellant that the respondent had close relations with the aforesaid two experts as he was instrumental in obtaining many remunerative assignments for them. It was further averred by the appellant that one of such experts, whenever he visited Lucknow, he stayed with the respondent no. 8. It was also averred by the appellant that the other expert had strained relations with him on account of straight election contest between him and the latter for the office of the President of Anthropology Section of the Indian Science Congress for 1974. The appellant also averred that in 1968 when he was serving in the Punjab University as a Lecturer in the Department of Anthropology headed by such expert, the latter stubbornly opposed his application for leave to avail of the offer of fellowship from Harvard University and stopped forwarding his salary bills to the Executive Council with the ulterior object of depriving him of the opportunity to attain higher academic qualification and thereby better his future prospects with the result that he was compelled to resign his job and surrender three months' salary in lieu of notice to avail of the offer. After delineating the areas of applicability of principles of natural justice, the Court had the occasion to rule that: “15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal's case ( AIR 1957 SC 425 ) (supra) wherein more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. This view gains strength from a decision of this Court in Manak Lal's case ( AIR 1957 SC 425 ) (supra) wherein more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:- ‘It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point’.” 23. Next in line is the decision in Om Prakash Shukla vs. Akhilesh Shukla, reported in AIR 1986 SC 1043 , which arose out of a civil appeal questioning a decision of the High Court of Allahabad quashing the results of the competitive examination held by the District Judge of Kanpur in September, 1981 for selecting candidates for appointment to the vacancies in Grade III of the ministerial staff in the Subordinate Courts in the District of Kanpur was under challenge. The principal contention before the High Court was that the competitive examination which had been held in accordance with the 1950 Rules was an unauthorised one and that it should have been held in accordance with the 1947 Rules as amended by the 1969 Amending Rules. The High Court upheld such contention. Reversing the decision of the High Court, it was held as follows: “23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.” 24. Then came the decision Madan Lal v. State of J&K, reported in (1995) 3 SCC 486 . The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.” 24. Then came the decision Madan Lal v. State of J&K, reported in (1995) 3 SCC 486 . It was pronounced on a challenge being laid to a process of selection of Munsifs in the State of Jammu and Kashmir undertaken by Jammu and Kashmir Public Service Commission. The attack of the petitioners was on the manner and method of conducting viva voce test and result thereof. Their main contention was that viva voce test had been so manipulated that only preferred candidates, by inflating their marks in the viva voce test, were permitted to get in the select list. Repelling such contention, it was ruled: “9. *** we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. 10. 10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. ***” 25. In Suneeta Aggarwal v. State of Haryana, reported in (2000) 2 SCC 615 , the appellant was selected and recommended for appointment on the post of lecturer by the Selection Committee. However, the Vice-Chancellor did not approve the recommendation and directed re-advertisement. The appellant applied in pursuance of the advertisement that was published and without protest, appeared before the Selection Committee once again. She then filed a writ petition challenging the order of the Vice-Chancellor disapproving the initial recommendation. Although initially an interim order was passed, ultimately her writ petition was dismissed by the High Court. Affirming the order of dismissal, the Supreme Court held: “4. *** Narration of the afore-stated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice-Chancellor declining to accord approval to her selection and, on the contrary, she applied afresh for the said post in response to readvertisement of the post without any kind of protest. Not only did she apply for the post, but she also appeared before the Selection Committee constituted consequent upon readvertisement of the post and that too without any kind of protest, and on the same day she filed a writ petition against the order of the Vice-Chancellor declining to accord his approval and obtained an ad interim order. In the writ petition she also did not disclose that she had applied for the post consequent upon the second advertisement. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice-Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed.” 26. Most of these decisions and other decisions of the Supreme Court to the same effect had come up for consideration of a Division Bench of this Court in Kenaram Biswas vs. Nadia Gramin Bank, reported in (2011) 2 CAL LT 80 (HC), while dismissing a writ appeal. The writ petition was rightly dismissed.” 26. Most of these decisions and other decisions of the Supreme Court to the same effect had come up for consideration of a Division Bench of this Court in Kenaram Biswas vs. Nadia Gramin Bank, reported in (2011) 2 CAL LT 80 (HC), while dismissing a writ appeal. An exercise was undertaken by the respondent bank to promote certain officers. The appellants participated in the process but were not selected. They had challenged the process by presenting a writ petition, which was dismissed. Upholding the order under appeal, it was observed in paragraph 5 thus: “5. Besides such, once appearing in the selection process and being unsuccessful, the person concerned cannot assail the selection process. It is a settled legal position of law that the principle of estoppel, acquiescence and waiver are applicable when selection process is challenged by unsuccessful candidate. It is also a case of approbate and reprobate. Reliance is placed to the judgement passed in the case Vijendra Kumar Verma v. Public Service Commission, Uttarakhand & Ors., reported in (2011) SCC 156 paragraph 24 thereof. In this case earlier views expressed by the Apex Court in the judgments G. Sarana (Dr.) v. University of Lucknow, reported in (1976) 3 SCC 585 (Paragraph 15), P.S. Gopanathan v. State of Kerala, reported in (2008) 7 SCC 70 (paragraph 44) and K.H.Siraj v. High Court of Kerala, reported in (2006) 6 SCC 395 (paragraph 72) were relied upon. Similar views expressed by the Apex Court in the case Dhananjoy Malik & ors. v. State of Uttaranchal & ors., reported in (2008) 4 SCC 171 wherein earlier views of the Apex Court passed in the case Madanlal v. State of Jammu & Kashmir, reported in (1995) 3 SCC 486 and Marripati Nagraja v. Government of Andhra Pradesh, reported in (2007) 11 SCC 592 were relied upon. Similar view echoed by the Apex Court in the case K.A. Nagmoni v. Indian Air Lines & ors., reported in (2009) 5 SCC 515 (paragraphs 54 8y 55) wherein Madanlal (supra) relied upon.” 27. These decisions provide a complete answer to the question posed in paragraph 21 supra. 28. Mr. Similar view echoed by the Apex Court in the case K.A. Nagmoni v. Indian Air Lines & ors., reported in (2009) 5 SCC 515 (paragraphs 54 8y 55) wherein Madanlal (supra) relied upon.” 27. These decisions provide a complete answer to the question posed in paragraph 21 supra. 28. Mr. Mazumdar, however, cited the decision in Raj Kumar vs. Shakti Raj, reported in AIR 1997 SC 2110 , and contended that principles of estoppel, waiver and acquiescence would not stand in the way of grant of relief to an aggrieved unsuccessful candidate if the process of selection is demonstrably tainted with gross illegality. He contended that Madan Lal (supra) was considered by the Bench in Raj Kumar (supra) and distinguished. Paragraph 16 of the decision, on which heavy reliance was placed, is set out below: “16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J and K, (1995) 3 SCC 486 : (1995 AIR SCW 1109) and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the and also conduct of the selection in accordance with the Rules. Therefore, the principle of estopped by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law.” 29. Therefore, the principle of estopped by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law.” 29. He also argued that the petitioners represented by him were not aware of the NCTE guidelines laying down qualification norms for appointment of primary teachers and, thus, had no prior knowledge of such guidelines/qualification norms being observed in the breach. 30. It would not be inappropriate at this stage to refer to a decision of this Bench while deciding Jayasri Ghosh vs. The State of West Bengal, reported in (2013) 4 CAL LT 542, where the writ petition of an unsuccessful candidate for appointment was entertained and allowed. The relevant paragraphs from such decision are quoted below: “14. Now, the other question falls for decision. It is settled law that a process of selection cannot be challenged by an unsuccessful candidate by pointing to certain irregularities here and there in the process of which he was aware, once the result is not to his liking. Relief, in such a case, is declined by applying the principles of estoppel, acquiescence and/or waiver. The decisions of the Supreme Court in this regard are legion. Paragraph 38 of the Bench decision of this Court in Kenaram Biswas (supra) refers to most of the decisions where the aforesaid principles were applied. It is of utmost importance to note one common thread that passes through all the decisions, i.e. awareness of the unsuccessful candidate of the manner in which the selection process would be conducted and completed. Despite the process being likely to be conducted either in ignorance or deviation of a rule, which is binding on the employer, or the constitution of the Selection Committee is strictly not in accordance with the requirement of the governing rules/guidelines, the candidate being aware thereof approached the Court and wished the Court to undo the irregularity after he had taken a chance of selection albeit unsuccessfully. There can be no doubt that such litigation must be nipped in the bud. 15. But is it the law that a selection process can never be challenged by anaspirant who does not figure in the panel? There can be no doubt that such litigation must be nipped in the bud. 15. But is it the law that a selection process can never be challenged by anaspirant who does not figure in the panel? Is it the case here that the petitioner had information prior to her participation in the personality test or she could have gathered information that the District Recruitment Authority was contemplating preparation of a panel for recruitment to the post of process server from amongst candidates who had not even applied therefor? Is it a mere irregularity or an illegality to consider a candidate for appointment on the post of process server, without receiving any application from him before the last date fixed for receiving applications? Answers to these questions, in my considered view, would be vital for clinching the issue. 16. My understanding of the law on the subject does not persuade me to hold that an unsuccessful aspirant for a post can never challenge a selection process after his participation therein. Take a case where the Selection Committee selects a candidate who lacks the essential eligibility criteria for appointment, or a candidate is selected whose application was received after the last date for making applications has expired, or a candidate is selected with one of his close relatives being a member of the selecting body and has taken active part in the selection process, - the unsuccessful aspirant may not have this vital information in the midst of the selection process. If this information is gathered by him subsequently and the selection is challenged on the ground of patent illegality or manifest bias, should the door be closed on him merely because he did not raise any objection prior to publication of the selection result? I do not think so. If that position were conceded, selection made by a selecting body would remain outside the realm of judicial scrutiny. In this regard, one may usefully refer to the decision of the Supreme Court reported in (1990) 1 SCC 305 (Dalpat Abasaheb Solunke v. B.S. Mahajan), where it has been ruled as follows: ‘12. ***It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. ***It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc.***’ (underlining for emphasis by me) 17. ***** 18. The decisions of the Supreme Court relied on in paragraph 38 of the decision in Kenaram Biswas (supra) and the said decision itself are distinguishable on facts and can have no application here.” 31. The conduct of the petitioners is such that they do not even qualify to get the benefit of the exception carved out by this Bench in Jayasri Ghosh (supra). 32. Raj Kumar (supra) also does not aid the petitioners since the illegalities found in the selection process could not have been and were not within the knowledge of the unsuccessful candidates who participated in the process that was under challenge therein. 33. Applying the well-settled principle of law to the facts at hand, the conclusion is inevitable that the petitioners’ by their actions and conduct have disabled themselves to urge this Bench examine their grievance in depth. If indeed the process of recruitment were one that commenced and had been conducted in clear departure of norms laid down by the NCTE, the petitioners were aware of the same from day one. Except for one set of petitioners [W.P. No. 5373(W) of 2015], the others (trained candidates) sought to sail through the self-same process by offering their candidature, without being unduly bothered about the perceived infirmities from which the process suffered. So long the results were not declared, they must have cherished hopes of being empanelled. Fortune, however, did not smile on them. On declaration of the results, they came to learn of their non-empanelment. Since the results were not palatable to them, the Supreme Court was approached and on transfer, their claims are before this Bench. So long the results were not declared, they must have cherished hopes of being empanelled. Fortune, however, did not smile on them. On declaration of the results, they came to learn of their non-empanelment. Since the results were not palatable to them, the Supreme Court was approached and on transfer, their claims are before this Bench. Obviously, those who elected to participate in the process without any demur cannot be allowed to blow hot and cold in the same breath. Having not spoken out at the right time asserting a right that could have been enforced, no unsuccessful petitioner can now be heard to complain of the process being infected with gross illegality. The principles of estoppel, waiver and acquiescence stand as insurmountable impediments in the way of the petitioners being extended relief on these writ petitions. 34. The off-the-cuff response of Mr. Mazumdar that the petitioners were not aware of the NCTE guidelines and, therefore, had no prior knowledge of the TET being conducted in deviation thereof, is unworthy of credence. The guidelines/qualification norms, forming part of the notification dated August 23, 2010, were published in the Gazette of India dated August 25, 2010. The amendments to the notification dated August 23, 2010 were notified by notification dated July 29, 2011, which too was published in the gazette on August 2, 2011. There being gazette publications of the guidelines/qualification norms, it is too late in the day for the petitioners to feign ignorance and seek entertainment of their claims. 35. Even otherwise, the claims of these petitioners’ appear to be suspect viewed from other angles. The notification of the Central Government dated June 1, 2011 issued in exercise of power conferred by sub-section (2) of section 23 of the RTE Act granting relaxation, is not under challenge in the writ petitions. The petitioners through their pleadings have not demonstrated that the jurisdictional fact for grant of relaxation thereunder did not exist. By not challenging such notification, the petitioners must be deemed to have accepted the position that the jurisdictional fact for grant of relaxation under sub-section (2) of section 23 of the RTE Act did exist. Allowing untrained candidates to participate in the TET ipso facto did not violate any legal provision; on the contrary, the same was permitted by taking recourse to the procedure prescribed by the RTE Act. Allowing untrained candidates to participate in the TET ipso facto did not violate any legal provision; on the contrary, the same was permitted by taking recourse to the procedure prescribed by the RTE Act. It cannot also be ignored that the pass mark for qualifying in the TET was pegged at 60%. Despite being trained candidates, the petitioners failed to achieve such mark whereas the untrained candidates, who were empanelled, must have achieved such mark. The attention of the Bench was not invited to any allegation in the writ petitions that the marks awarded in favour of the untrained candidates were inflated to ensure their empanelment while that of the petitioners was deflated to their utter prejudice and detriment. 36. It seems that these petitioners being unsuccessful have indulged in a witch-hunting campaign, which should not be encouraged. They are not entitled to any equitable relief based on the other decisions cited by Mr. Mazumdar (which this Bench has not considered it necessary to discuss). 37. The situation is not too different for the other set of petitioners in W.P. No. 5373(W) of 2015, also represented by Mr. Mazumdar. They were untrained at the material point of time when the written examination pertaining to the TET was conducted. They could have participated in the process availing the relaxation that was granted by the Central Government, if they so elected, or could have laid a challenge to the process of recruitment immediately after it commenced with issuance of advertisement by challenging the decision allowing untrained candidates to enter into the fray. Not having done either, the prolonged wait till after declaration of results renders their claim vulnerable. The concerned writ petition too merits no order. 38. Now, turning attention to W.P. No. 5357(W) of 2015, it is found that not only was the same presented before the Supreme Court prior to the date on which the written examination pertaining to the TET was conducted, substantial challenge was laid to the entire process by which the State and the Board wished untrained candidates to participate and appropriate prayers were made to undo acts seemingly contrary to the statute. Most importantly, the petitioners through Mr. Most importantly, the petitioners through Mr. Dutta have demonstrated a serious flaw in the process, i.e. the advertisement permitted graduates who neither obtained 45% marks at the Higher Secondary level nor 50% marks at the graduation level to enter the zone of consideration for appointment as teachers in Class VI-VIII, whereby the mandatory provisions in respect of qualification norms were breached. 39. However, despite the satisfaction of this Bench that the petitioners have raised apoint of substance, the same need not be examined in depth because of their conduct which is not considered to be above board. Replying to a query of the Bench as to why the petitioners (having approached the Supreme Court prior to the written examination was conducted) did not seek the leave of the Court to take the examination without prejudice to their rights and contentions in the pending writ petition, Mr. Dutta submitted that the petitioners hardly got the opportunity to make such prayer. Assuming what Mr. Dutta submitted is correct, the petitioners ought to have stayed away from the written examination thereby preserving their right to challenge the process. Admittedly, they did not stay away. In any event, the submission of Mr. Dutta does not seem to be correct. The records reveal that W.P. No. 5357(W) of 2015 [earlier W.P. (Civil) No. 39 of 2013] was considered at least on 4 (four) occasions by the Supreme Court prior to the written examination in connection with the TET being conducted on March 31, 2013, i.e. on February 1, 4 & 25, and March 13, 2013, yet, the petitioners did not consider it wise and proper to pray for and obtain the kind leave of the Supreme Court to take the written examination without prejudice. It emerges that the petitioners voluntarily took the examination and waited for the results to be declared. They showed the required urgency once the results of the written examination were declared and they were unsuccessful. These petitioners also took a chance of selection and there is no reason as to why the Court of writ should come to the aid of litigants who conveniently change their positions to suit their narrow ends. The interim order passed by the Supreme Court on April 23, 2014 that “appointments made of untrained teachers shall abide by the decision of the Writ Petitions”, referred to by Mr. The interim order passed by the Supreme Court on April 23, 2014 that “appointments made of untrained teachers shall abide by the decision of the Writ Petitions”, referred to by Mr. Dutta, was one passed in aid of the final relief but once it emerges that the petitioners are not entitled to final relief, such an interim order cannot lend any assistance to them. 40. This Bench is of the clear view, for the reasons discussed above, that equity disfavours any relief being granted to the petitioners in W.P. No. 5357(W) of 2015 also. 41. The writ petitions stand dismissed, without order for costs. 42. It is, however, made clear that this Bench has declined relief to all the petitioners applying the principles of estoppel, waiver and acquiescence and this judgment shall not be construed as the Court’s stamp of approval to the process by which the State and the Board allowed untrained candidates to enter the zone of consideration, permitted them to take the TET and were ultimately appointed as primary teachers. 43. Photocopy of this judgment and order duly countersigned by the Assistant Court Officer shall be retained with the records of all the writ petitions except W.P. No. 5357(W) of 2015. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.