Supreme Court Refuses Urgent Listing For West Bengal Govt’s Plea Against HC Order In Teachers’ Recruitment Scam Case

Advocate-on-Record Sunil Fernandes requested a vacation bench comprising Justices Sudhanshu Dhulia and KV Viswanathan to list the matter next week. The counsel argued that the impugned order had been passed by a single judge bench without hearing the defence of the state government, on a public holiday. While hearing an appeal against this order, a division bench has also rejected their prayer for interim relief, Fernandes informed the bench.

“What is the urgency?” Justice Dhulia asked. Fernandes explained, “The urgency is that the main appeal is listed next week. Unless we have the protection of an interim order, the CBI and ED will proceed with the matter.”

At this point, Solicitor-General Tushar Mehta interjected. He was appearing virtually to urgently mention another matter before the bench, a special leave petition against an order of the Madras High Court – which was stayed later today by another bench – restraining the Joint Parliamentary Committee on the Forest (Conversation) Amendment Bill 2023 from proceedings in terms of a press communique issued by it, inviting suggestions and objections from stakeholders. Incidentally, Mehta also represented the central agencies before the apex court in the matter related to the West Bengal municipality recruitment scam. He exclaimed, “My learned friend is for the State and not the accused, but yet he is saying that they do not have protection. The State cannot be arrested.”

“If the solicitor is not appearing in this matter, his intervention is gratuitous and not called for,” Fernandes protested. The counsel asked, “Is he opposing the listing of a special leave petition as well?” He added:

“If Mr Mehta is opposing the listing of this appeal, it only shows the unusual interest exhibited by the Central Bureau of Investigation and the Enforcement Directorate. In which matter will the State, represented by the solicitor-general intervene at this stage? This is proof that there is more to this than meets the eye. This is the reason we are now urging this court to list this SLP.”

“I have something to say,” Solicitor-General Mehta insisted. “That something that he has to say should be said when the petition is listed,” Fernandes shot back, “Today, I am only requesting the listing of this petition. It cannot be argued on merits.”

“I am not arguing on merits. All I want to point out is that their argument is that without interim protection, the State would be in difficulty. The State cannot be arrested. I was really shocked to hear this argument,” Mehta argued.

“If Mr Mehta comprehended the contours of my submission, he would have been saved of being shocked in this manner,” Fernandes quipped.

“I cannot stop to this level, My Lords,” replied Mehta, “He may inform all the parties and mention after that.”

The bench was quiet during the verbal altercation between the two counsel. Afterwards, Justice Dhulia asked Fernandes, “Tell us what the urgency is. You have not been able to establish that.” The judge went on, “We have been hearing this matter every week. It is assigned to our bench. Why don’t you come back on the opening day and we will hear you out?”

“Normally, I would be grateful for that indulgence, but the only problem…” Fernandes tried to convince the bench.

Justice Dhulia suggested, “Whenever this case is listed before the concerned bench before the Calcutta High Court, you can always say that this court has fixed this to be heard after reopening and ask the high court to wait till July 3.”

Fernandes requested the bench to pass an appropriate order or direct the matter to be listed on a fixed date. The solicitor-general chimed in again, “Your Lordships may also record that the state government is saying that the Enforcement Directorate will arrest them unless they are protected,” the law officer said.

Fernandes remonstrated, “I never said that. What is this? This is an unnecessary intervention by the solicitor-general in a matter in which he admits to not being briefed. I do not know why he is exaggerating this.”

“I will not behave the way he behaved, My Lords, and leave it to you,” Mehta responded. A little while later, after Fernandes apprised the bench of the events leading up to the current special leave petition, Justice Dhulia asked Solicitor-General Mehta to say his piece. The law officer said:

“Earlier Dr Abhishek Manu Singhvi – the counsel for the state of West Bengal – had urged a bench led by the chief justice to continue a stay it had previously granted because it would be in difficulty. I got up and asked how the State could be in difficulty. I would understand if the accused said that. The judges on the bench also laughed and said that the State could not have said this…Let the accused avail of whatever remedy available to him. Now, the appeal is before the division bench. The question I want to ask is, can the State claim that it would face difficulty if the CBI is allowed to investigation? The accused may say this, but not the state government. This is what weighed with the court when it had refused to extend the stay on the high court’s order.”

The bench appeared to concur with the solicitor-general with Justice Dhulia observing, “Mr Mehta has rightly pointed out that the urgency may be on the part of the individuals accused in this case, but not on the State.” The judge also told Fernandes – who pressed for the bench to ‘give a fixed date’ after the vacation, “We cannot get it listed after vacation, only during this period.” The Chief Justice of India – the master of roster and the administrative head of the Supreme Court – normally deals with cases that are orally mentioned for early hearing. However, during the vacation, whichever bench has the seniormost judge, discharges this responsibility in the absence of the chief justice, but only for the limited purpose of listing cases for urgent hearings during this period.

“Mention this before the chief justice on July 3. Then we will see. Meanwhile, you can take an adjournment before the Calcutta High Court,” Justice Dhulia ultimately instructed, with a tone of finality.

Background

At the heart of the controversy is a public interest litigation (PIL) petition pending before the Calcutta High Court alleging irregularities, illegalities, and corruption in the recruitment of assistant teachers in primary schools of the state on the basis of the 2014 Teacher Eligibility Test.

In April, the presiding judge – Justice Abhijit Gangopadhyay – had directed the CBI and the ED to investigate the recruitment scam and permitted the central agencies to question Abhishek Banerjee, the national general secretary of the ruling Trinamool Congress (TMC) party and nephew of Chief Minister Mamata Banerjee, in this connection. Interestingly, Justice Gangopadhyay had taken into account a letter written by expelled TMC leader Kuntal Ghosh alleging that he was being coerced to implicate Banerjee in the recruitment scam. Banerjee also, in one of his public speeches, claimed that several accused were being forced to name him in the case.

Soon after this, a bench comprising Chief Justice Chandrachud and Justice PS Narasimha agreed to direct the acting chief justice of the high court to withdraw the matter from the bench comprising Justice Gangopadhyay and reassign it to another bench. This decision was passed in light of a media interview given by the presiding judge about the sub-judice matter before him. 

Subsequently, the Calcutta High Court reassigned the cases related to the primary teachers’ recruitment scam in West Bengal to Justice Amrita Sinha. However, in a setback to the West Bengal government, the new bench issued the same directions after hearing the matter. Last month, Justice Sinha dismissed the review application filed by the West Bengal government against the order passed by Justice Gangopadhyay transferring the probe to the central investigation agencies. Against this order, the state government filed an appeal before a division bench of the Calcutta High Court which is currently pending. Notably, the bench rejected the Trinamool Congress led government’s prayer for interim relief.

Case Details

State of West Bengal v. Soumen Nandy & Ors. | Special Leave Petition No. _____ of 2023