ON APRIL 17, the Supreme Court allowed the untainted candidates who were selected for the post of Assistant Teachers for Classes IX to XII in the West Bengal School Service Commission, to continue in service until the fresh recruitment process is completed. However, the Court declined to grant the same relief to Group C and D candidates.
The order was passed in a miscellaneous application filed by the West Bengal government in State of West Bengal v. Baishakhi Bhattacharyya, where the entire selection process of the West Bengal School Service Commission (‘WBSSC’) was found to have suffered through irregularities and corruption. West Bengal had prayed for the untainted candidates to be allowed to continue in service till the end of the academic year or till the fresh recruitment process to such posts was concluded, whichever is earlier.
The bench comprising Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar has given a deadline till May 31, 2025, to the State to publish the advertisements for the fresh recruitment process and has directed them to complete the recruitment process by December 31, 2025, including the conducting of exams.
The bench has also directed the West Bengal government and the SSC to file an affidavit before the deadline date, producing the advertisement and warned that in case any infirmity is found therein, the present order will be vacated.
Supreme Court had earlier upheld the striking down of WBSSC’s entire selection process
Earlier, on April 3 the same bench had upheld a single-judge Bench order of the Calcutta High Court striking down the entire 2016 selection process of the WBSSC. As a result, more than 23,000 people employed as teachers and non-teaching staff in the state have lost their employment. Many of these people had been discharging their duties for over five years.
The Supreme Court found the entire selection process so tainted that it was impossible to segregate the innocent from those guilty of fraud and manipulation. The Court, while declaring that the selection process violated Articles 14 and 16 of the Constitution as it was riddled with egregious violations, illegalities and cover-ups, agreed with the decision of the High Court to declare the entire selection process null and void.
“This is a case wherein the entire selection process has been vitiated and tainted beyond resolution. Manipulations and frauds on a large scale, coupled with the attempted cover-up, have dented the selection process beyond repair and partial redemption. The credibility and legitimacy of the selection are denuded,” the bench noted.
Notably, in their investigation, the Central Bureau of Investigation had identified 6,279 illegally appointed candidates, including in Groups A (Assistant Teachers for Classes IX & X), B (Assistant Teachers for Classes XI & XII), C and D (Non-teaching Staff), excluding 239 candidates who fell under both the OMR mismatch and other illegalities.
The Commission had filed an affidavit before the Supreme Court, arguing that since the CBI investigation reports had made it possible to identify these illegal appointees, it was possible to segregate them from meritorious candidates. The Supreme Court, however, refused to entertain this argument, citing the absence of the original OMR sheets.
The Commission had destroyed the original physical copies of these sheets without saving their mirror images on its servers. They justified this act by relying on Rule 21 of the West Bengal School Service Commission (Selection for Appointment to the posts of Teachers for Classes IX and X in Secondary and Higher Secondary Schools) Rules, 2016 and the West Bengal School Service Commission (Selection for Appointment to the posts of Teachers for Classes XI and XII in Secondary and Higher Secondary Schools) Rules, 2016, which require the Commission to retain the physical copies of the OMR sheets for only one year.
The Court declared this reliance to be misplaced, stating that Rule 21 only applied to Assistant Teachers for Classes IX-X and XI-XII and did not extend to the non-teaching Groups C and D posts. Since the OMR sheets of Group C and D candidates were also destroyed, the Court believed that this was only done to cover up the corruption that had taken place in the selection process.
The Supreme Court also refused to interfere with the High Court’s directions to terminate the services of the tainted candidates and make them refund the salaries/payments received with an interest of 12 percent per annum. The Court found no justification to alter this direction since these appointments were acquired fraudulently and the candidates had no legal claim on any remunerations they had received.
Although the Court has clarified that candidates already employed need not be asked to refund or restitute any payments made to them, their services are still terminated since the entire examination process and results have been declared null and void.
The Court has allowed the untainted candidates previously employed in any department of the State Government or working with any autonomous body, to apply to their previous departments or autonomous bodies, as the case may be, to continue in service with those entities. The Court has given these respective government departments and autonomous bodies a deadline of three months to process these applications.
Furthermore, the period between the termination of these candidates’ previous appointments and their rejoining will not be considered a break in service. Their seniority and other entitlements will be preserved, and they will be eligible for increments. They will, however, not be entitled to wages from such departments or autonomous bodies for the period they were employed under the disputed appointment.
The impugned judgement of the High Court had allowed one Shoma Das, who was diagnosed with cancer, to continue on humanitarian grounds. The Supreme Court did not interfere with this direction, even as it refused to allow other such candidates to retain their employment since that would contradict various legal principles and violate the rule of law.
The Court has granted these candidates some relief by allowing them to continue in services and receive wages until the fresh selection process and appointments are completed. Furthermore, these candidates, along with the other untainted candidates, will be allowed to participate in the fresh selection process and if required, be given age relaxations and other concessions.
How did the case come about?
The issue pertained to the selection process initiated in 2016 by the WBSSC, a statutory selection body, for filling 12,905 vacancies in the post of Assistant Teachers for classes IX and X, 5,712 vacancies in Assistant Teachers for classes XI and XII, 2,067 vacancies in the Non-teaching Staff under Group C, and 3,956 vacancies in Non-teaching Staff under Group D.
The matter had reached the Calcutta High Court even before the results of the selection exercise were declared, when one of the candidates who had appeared for the SSC selection process filed a writ petition alleging that the Commission had failed to grant her age relaxation. Consequently, the petition titled Baishakhi Bhattacharyya (Chatterjee) v. State of West Bengal became the lead petition before the High Court.
Other writ petitions were filed in 2021 by individuals seeking appointments and alleging illegalities in the recruitment process. Some of these petitioners alleged that they were given appointment letters, yet were not allowed to join the services. Others alleged rank jumping, i.e., candidates holding a rank below the petitioner(s) had been given appointments. Yet others alleged that the commission had either flouted the recruitment rules by deploying pick-and-choose methods in selecting the candidates, or that the candidates who were neither on merit nor on the waiting list were given appointments and had joined services in schools across the state.
Some Group D petitioners also claimed that the candidates on the waiting list in the panel published on June 20, 2019 were ignored and a new notification was published on June 14, 2021, initiating a new recruitment process. There were also allegations that the counselling list for the fourth phase of the counselling was not published and this was contrary to the 2009 Recruitment Rules.
The High Court constituted a four-member enquiry committee tasked with scrutinising and verifying the appointments of non-teaching staff in Groups C and D. The committee was chaired by a retired judge of the Calcutta High Court, Justice Ranjit Kumar Bag and included representatives from the WBSSC, the West Bengal Board of Secondary Education and an advocate.
The enquiry committee found that the Commission had not maintained transparency when it published the panel of Group C posts and had changed the rank of the candidates in the existing panel before uploading it on its website. It also found lacunae in the constitution of the Committee approved by the MIC of the School Education Department to supervise, monitor and guide the Commission concerning the pending recruitment process.
The enquiry committee found that both sitting and former Chairpersons of the Central and various Regional Commissions had abdicated their duties and responsibilities in counselling and recommending the names of the candidates for Group C posts in terms of the provisions of amended Section 7 of the School Service Commission Act, 1997 and Rules 16(v) and 18(1) and (2) of the School Service Commission Rules, 2009 during the panel’s validity. Two former Chairpersons of the Central Commission were found to have usurped the power and authority of the Regional Commissions by counselling the candidates and recommending their names for Group C posts by manipulating infrastructure and evolving illegal procedure in violation of the provisions of Section 7 of the 1997 Act and the 2009 Rules.
The enquiry committee also found that various senior officers of the Central Commission and the Board such as the Programme Officer of the Central Commission, its former and sitting advisors, former Chairpersons, former Secretaries and former Assistant Secretaries and the President of the Board, had committed offences punishable under provisions of the Indian Penal Code such as Sections 465, 417, 468, 34 and 120B. The Committee even suggested registering an FIR against some of these officers under the relevant sections of the IPC.
In March 2022, the High Court directed the CBI to investigate the alleged illegalities and question Commission members. The High Court also gave further orders, after which the CBI registered four different FIRs and started investigating the matter.
Pursuant to directions from the Supreme Court issued in a batch of Special Leave Petitions directing it to complete its investigations within two months, the CBI submitted four interim and final reports before the High Court. These reports revealed that the Commission had authorised M/s Nysa Communication Private Limited, a software company, to scan and evaluate the OMR answer sheets of the selection tests of the candidates in all the groups. Nysa, in turn, engaged M/s Data Scantech Solutions, Noida, who carried out the scanning work at the premises of the Commission.
After scanning, Data Scantech stored these mirror images of the OMR sheets on hard disks and handed them over to Nysa, who then started evaluating the OMR responses based on answer keys provided by the Commission. The original physical copies of these sheets were left in the sole possession of the Commission.
The Commission was also given a copy of the scanned mirror images to store on its servers. The CBI report records that even though the Commission had initially retained these scanned/mirror copies of the OMR sheets, they were subsequently deleted or destroyed. However, the CBI acquired other material pertaining to the selection exercise from the servers of the Commission.
Subsequently, CBI recovered three hard disks containing the above-noted mirror images from the residence of one Pankaj Bansal, an ex-employee of Nysa. Bansal was made to give a certificate under Section 65 B of the Indian Evidence Act regarding the genuineness of the data contained in these three hard disks. CBI also seized the data files containing scanned OMRs, ‘.DAT’ files, etc., from Data Scantech.
According to CBI’s investigation reports, the hash values of the data files obtained from Data Scantech matched with the corresponding files recovered from the hard disks seized from Bansal, which, as per the CBI, established that the data contained in the three hard disks was not contaminated.
The CBI also conducted a similar exercise of matching the data available on the hard disks with the data seized from the servers of the Commission and found a mismatch between the two, inasmuch as the marks awarded to the candidates as available on the server of the Commission had been increased to make the underserving candidates qualify the examination, thus establishing that, in case of many candidates, the marks were manipulated and the CBI had identified these candidates.
The CBI found manipulation in the OMRs of 952 candidates who appeared for the post of Assistant Teachers for classes IX-X, 907 for classes XI-XII, 3481 Group C candidates and 2823 Group D candidates.
CBI also found email correspondences between the accused officials from the Commission, the officials from Nysa and some private individuals. These emails contained the lists of candidates whose OMR marks were found to be increased in the Commission’s servers.
Based on these reports and the fact that the Commission had destroyed the original physical copies of the OMR sheets in contravention of the relevant Rules and also destroyed the digital copies from their servers, the High Court deemed it appropriate to conclude that the veracity of the entire selection process was compromised, thus declaring it null and void.
What did the petitioners argue?
Aggrieved by the High Court’s judgment, candidates from all groups who stood to lose their employment approached the Supreme Court by way of appeals.
These appellants inter alia raised two principal arguments:
1) First, they challenged the validity of the data acquired from Bansal, which was the primary evidence in this case, and
2) Second, they contended that the impugned judgment had violated the principles of natural justice by denying the affected candidates an opportunity to present their case before the judgment was pronounced.
The appellants argued that the Section 65B certificate given by Bansal was not legally acceptable as Section 65B (2)(a) requires that the computer output containing the information has to be generated during the period in which that computer was in regular use to store or process the information for activities regularly carried out during that period by the person having lawful control over the use of the said computer. They also pointed out that it is a requisite under Section 65B (2)(b) that the certificate must specify that during the relevant period, information of the kind in the electronic record or of the kind from which the information so contained is derived, was regularly fed into the computer in the ordinary course of the said activities.
The certificate given by Bansal was silent on these points because he did not own the computer(s) used for scanning the OMR sheets and storing the electronic record. That task was carried out by Data Scantech, of which Bansal was not an employee. The certificate also did not disclose to whom the computer that generated the data belonged or who fed that data into it.
They argued that the certificate also did not fulfil the mandate of Section 65B(2)(c), which requires a declaration that the computer was operating properly throughout the material part of the period, if it was either not operating properly for any period or was out of operation during the relevant part of the period, the declaration must state that it was not such that it affected the electronic record or the accuracy of its content. Such a declaration could only be given by the owner of the computer. The certificate did not make any such declaration since the ownership of the computer that generated the data was unknown.
Appellants also argued that the data acquired from Bansal did not comply with the secure electronic records provisions of the IT Act since the original computer that generated the data was never found. Thus, there was no way that the veracity of the data acquired from Bansal could be cross-checked.
The second argument raised by the Appellants challenged the High Court’s order as being violative of the principles of natural justice. They argued that the order was bad in law as it contravened the mandate of Article 14 of the Constitution by treating both the categories, i.e. the tainted and the untainted, on par. This, they argued, was wholly unjustified, arbitrary and unconstitutional since it condemned innocent people who had been in service for a considerable time to suffer for the wrongs of others.
They argued that the two groups formed distinct classes that are clearly unequal, and giving equal treatment to unequals was a gross inequality. The High Court ought to have made a serious endeavour to segregate the tainted candidates from the rest, and the persons whose services were affected because of such en masse cancellation must have been allowed to represent before the authorities concerned.
They pleaded that the Courts must see that foundational facts are established beyond a reasonable doubt before applying legal principles and arriving at the finding that appointments have been made in violation of Articles 14 and 16. They relied on the Supreme Court’s decision in Inderpreet Singh Kahlon v. State of Punjab (2006), where it was stated that it is a settled principle of law that if the services of the employees are terminated either for the sake of probity in governance or in public interest on the ground that such employees might have aided and abetted corruption, the court must satisfy itself that conditions therefore exist. The Court had thus held –
“In view of the commission of illegality in the selection process involved, we need not consider the applicability of the statutes as also the effect of the provisions of Article 311 of the Constitution of India. An appointment made in violation of Articles 14 and 16 of the Constitution of India would be void. It would be a nullity. But before such a finding can be arrived at, the appointing authority must take into consideration the foundational facts. Only when such foundational facts are established, the legal principles can be applied..
…when the services of the employees are terminated inter alia on the ground that they might have aided and abated corruption and, thus, either for the sake of probity in governance or in the public interest their services should be terminated, the court must satisfy itself that conditions therefor exist. The court while setting aside a selection may require the State to establish that the process was so tainted that the entire selection process is liable to be cancelled.
In a case of this nature, thus, the question which requires serious consideration is as to whether due to the misdeed of some candidates, honest and meritorious candidates should also suffer.”
In the present case, the untainted employees who had approached the Court were neither named in any FIR nor made parties to the proceedings that were pending before the trial court. They were also not found guilty of any wrongdoing or corruption or to have abetted such wrongdoing or corruption thereof in the investigation conducted by the CBI.
Why the Supreme Court upheld the High Court’s order
The Supreme Court refused to entertain the argument of natural justice, emphasising that individual notice and hearing may not be necessary in all cases for practical reasons when the facts establish illegalities at a large scale and even so, in this case, public notices were issued, and the candidates/applicants/petitioners had the opportunity to inspect the data and present their arguments. Therefore, the Court opined that the principles of natural justice cannot be invoked to validate the fraud that had occurred since these principles are not rigid or inflexible; rather, they must be applied with due regard to the specific facts and circumstances at hand.
It stated that when an in-depth factual enquiry reveals systematic irregularities, such as malaise or fraud, that undermine the integrity of the entire selection process, the result should be cancelled in its entirety. Segregation of the tainted from the untainted should only be done if and when possible.
Furthermore, the collected material need not conclusively prove malpractice beyond a reasonable doubt. The Court noted that it should rather apply the test of probability based on the satisfaction derived from sufficient material collected through a fair and thorough investigation. Despite the inconvenience caused to the untainted candidates, when broad and deep manipulation in the selection process is proven, due weightage has to be given to maintaining the purity of the selection process.
To arrive at these findings, the Court relied on its earlier judgments including in Sachin Kumar v. Delhi Subordinate Service Selection Board (DSSSB) (2021), where it was observed that determining when the examination process is vitiated by irregularities requires an in-depth fact-finding inquiry. It must be examined if the irregularities were systematic enough to undermine the sanctity of the entire process. In some cases, the irregularities may border on or even constitute fraud, which severely damages the credibility and legitimacy of the process. In such cases, the only option is to cancel the result entirely as separating the tainted from the untainted participants is very difficult in such situations.
