West Bengal SSC Recruitment Scam | Supreme Court Questions Reliability Of Scanned OMR Sheets; State Claims Tainted Candidates Can Be Segregated
During the hearing of the West Bengal SSC Teachers' Recruitment Case, the Supreme Court highlighted the need to examine the authenticity of the electronic data stored in database of the School Service Commission (SSC) in order to understand whether there can be a distinction made between 'tainted' and 'untainted' candidates.
The bench of CJI Sanjiv Khanna and Justice Sanjay Kumar was hearing the batch of petitions challenging the Calcutta High Court's order setting aside the appointments by the WB School Selection Commission to over 24,000 teaching and non-teaching posts in government schools.
The CJI highlighted that the core issue for the Court to consider at present is how credible would be the scanned data of the original copies of the OMR sheets since there is no concrete proof that the original OMR sheets, after being collected from the candidates, were not tampered with before scanning. Notably, the SSC admitted to have destroyed the original OMR sheets after 1 year of the exam in terms of the exam rules.
"The question today is the authenticity of the data scanned and the data found in the hard disk, that itself is the subject matter."
He explained that the tampering of the results could have also happened before the scanning and uploading of the data either by replacing the OMR answer sheet or filling out the correct answers in a blank copy submitted by a candidate.
"Original paper is OMR, if any manipulation is done, it is visible on the sheet, what happens is there are cases in which people do not fill in full answers and there is a possibility of filling those, or there is the possibility of changing the OMR sheet, we don't even know how the checking took place, whether the name was camouflaged..."
Notably, the SSC had tasked a private company called NYSA Communications for the scanning and evaluations of the OMR sheets, which was done at the office of the SSC. However, NYSA had sub-delegated the task of scanning to an entity by the name of DATA Scantech Solutions, NOIDA which was present at the premises of SSC for completing the scanning work.
Previously, the CBI informed the bench led by then CJI DY Chandrachud that the images of the OMR were handed over by DATA Scantech Solutions to NYSA Communications Private Limited in digital form leaving the original hard copies of the OMR sheets in the office of the SSC. According to the CBI report, the SSC handed over the answer keys for all subjects to NYSA Communications Private Limited for evaluating the OMR responses. CBI seized the server database of the SSC during the course of the investigation.
Subsequently, in September 2022, 3 hard disks were recovered from the former NYSA employee Pankaj Bansal containing data of the scanned OMR sheets. A certificate was also taken by Bansal in terms of S. 65B of Evidence Act.
The CBI in its report to the Court disclosed that there were mismatches of results found when the Commission's server was tallied with the server from Bansal.
"The written marks awarded to candidates as available on the server of the commission had been increased to qualify underserving candidates. This mismatch establishes that manipulation in marks of written examination in the case of many candidates was resorted to and such candidates were identified." the CBI report stated.
In light of the same, the CJI today reiterated the issue of mismatch between the data from SSC's server and NYSA's server :
"Look there is certain manipulation at your side, whether there was any manipulation by Pankaj Bansal is still unknown, if we go by the prosecution's case as well as the CBI....your employees will be in problem (SSC). What is being highlighted is the difference between the data maintained in the server and what is uploaded as per the mark sheets"
The other major aspect that the Court seeks to examine is "whether the database available is the actual authentic database" .
"They (CBI) have not been able to ascertain, they have left it neutral .... I am still worried about the blank OMR sheets question, the possibility of change of OMR sheets" the CJI added.
Three essential questions were also posed to the CBI : (1) Was the CBI able to ascertain the date on which OMR was captured?; (2) If the Commission had the full data of 22 lakh candidates who appeared for the recruitment exam and (3) whether the hash values indicate the date on which the data was captured and whether there was any change in the data, thereafter
On Evidentiary Value Of S.65B Certificate
During the hearing, the counsels of the allegedly tainted candidates raised the issue of the non-admissibility of the certificate by Bansal under S. 65B of the Indian Evidence Act and the credibility of his statements on the data server.
S. 65B lays down the conditions when can an electronic record be admissible in court proceedings. S.65(4) provides that a certificate disclosing the details of the electronic record has to be signed " by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate)"
The CJI clarified that the significance of the certificate obtained under S.65B(4) was only limited to attesting the electronic mode of the document/record. In order to examine the evidentiary value of the electronic record recovered from Bansal's server, other aspects also needed to be considered.
"There is a misconception about 65B....the evidentiary value attached to a document depends not on the mode alone, but on several factors, .....65B doesn't deal with and say what evidentiary value is attached to it, it only on the mode of proof"
"OMR sheets have been destroyed, so this document is not available.....65B certificate will only say that what is downloaded from the hard disk and what is uploaded on the disk"
The CJI further explained with an example - the call records we get are downloaded from a server, there is a blockchain, and the certificate says that as I downloaded from the server, this was on the server, but he cannot vouch that the server was not manipulated in terms of the data
The bench added that since SSC didn't maintain the mirror image, original sheets are not available, and the only evidence is the scanned sheet by data ScanTech given to NYSA. It noted that there is evidence to show that the marks on scanned images are different from the marks entered by SSC.
The CJI emphasized that the certificate furnished under S.65B would not be sufficient to prove that the mirror images obtained on the servers are exact of the original sheets without any manipulation.
"There are irregularities in scanning, Data Scantech did it in the office of SSC, but we do not even know that the images were of the original sheets, 65B will not say that"
Sr Advocate Rakesh Dwivedi appearing for the State of West Bengal and Sr Advocate Jaideep Gupta appearing for the SSC, both submitted that as per the CBI report so far, a segregation of the untainted results from the tainted ones was possible.
The bench, however, posed crucial questions to the State and SSC. The CJI inquired why supernumerary posts were created to allegedly accommodate illegal appointments.
"Instead of weeding out the tainted person, you created supernumerary posts. The moment you create posts, you ensure that the tainted candidates are not thrown out."
Dwivedi however clarified that while the posts were created, no appointments were made, as the same were subject to the High Court's approval.
Additionally, on the issue of why SSC didn't store the original data of OMR sheets, Gupta reasoned that there are 26 Lakh candidates in each batch of exams, exams are held from time to time,
"So impossible to store all OMR sheets....no disputes arose till 2021" He said.
The CJI however weighed in to opined: "When you scan the data, should you be keeping a copy to yourself while giving it to the other side(NYSA)? There is hardly any time gap between marking and scanning, it happened simultaneously, so you should have retained the data for yourself"
Senior Advocates Sanjay Hegde, Karuna Nandy, Ranjit Kumar, AM Singhvi, Shyam Divan, Raju Ramachandran, and Aryama Sundaram also made brief submissions for their respective clients belonging to either tainted, untainted or affected categories.
There are 5 main categories of stakeholders which the Court identified : (1) West Bengal Government; (2) WBSSC; (3)Original Petitioners - who were not selected (representing classes 9-10, 11-12, groups C and D); (4) persons whose appointments are cancelled by the High Court ; (5) Central Bureau of Investigation.
On an earlier hearing, the Court had directed the respondents (the original writ petitioners before the High Court) to file their counter affidavits within 2 weeks, failing which their right to file counter would exhaust. These respondents had challenged the appointments made by WBSSC as against them. The jobs had come under the scanner due to the infamous cash-for-jobs recruitment scam.
It may be noted that the Top Court had earlier passed an interim order protecting the appointments made in pursuance of the alleged West Bengal SSC recruitment scam, stating that those appointees whose appointments are found to be illegal shall be liable to refund their salaries.
The top court has also permitted the CBI to continue its probe to determine the officials involved but precluded the agency from taking any coercive steps.
The High Court had directed CBI to undertake further investigation and interrogate all persons who had received appointments after the expiry of the panel and after submitting blank OMR sheets. The state had also asked the central probe agency to undertake further investigations concerning the persons involved in the State Government, approving the creation of supernumerary posts to accommodate illegal appointments.
The interim protection was first granted by the Supreme Court on November 9, 2023 in another case (Achinta Kumar Mondal vs Laxmi Tunga).
The matter will now be heard in January 2025.
Background
On April 22, the Calcutta High Court had invalidated these jobs across government and aided schools. The jobs came under the scanner due to the infamous cash-for-jobs recruitment scam.
The State has argued that the High Court, instead of segregating the valid appointments from the invalid ones, has erroneously set aside the 2016 selection process entirely. It has also been averred that this will affect around 25,000 teaching and non-teaching staff in the State.
It has also been pleaded that the High Court solely relied upon the oral arguments without the support of affidavits. Further, it has been argued that the High Court has acted in utter disregard of the fact that the same will result in a huge vacuum in the State Schools unless a new selection process is completed. The State has emphasized that this will adversely impact the students given that the new academic session is approaching.
The State has also assailed the impugned order on the ground that it ordered the SSC to conduct a new selection process for declared vacancies within two weeks of the upcoming election results without acknowledging the understaffing issue in schools.
Findings Of The High Court
In a detailed order running into more than 280 pages, a division bench of Justices Debangsu Basak and Md Shabbar Rashidi cancelled the entire panel of the 2016 SSC Recruitment upon finding irregularities with OMR sheets and ordered the state to conduct fresh examinations for the same.
Not only this, but the Court also directed the appointees, who were recognised to have been fraudulently appointed, to return the salary they had drawn.
The Court observed that the entire panel of recruitment originating out of the 2016 recruitment process had been tainted due to the irregularities with the OMR sheets, many of which were found blank, and were liable to be cancelled.
The Court also found that many of those whose appointments had been challenged had been appointed after the panel for the 2016 recruitment had expired by submitting blank OMR sheets.
In view of the above projection, the Court had also directed an investigation into those who perpetrated the fraud and disposed of the pleas by canceling the entire 2016 SSC Recruitment Panel.
Case Details : THE STATE OF WEST BENGAL vs. BAISHAKHI BHATTACHARYYA (CHATTERJEE) SLP(C) No. 009586 - / 2024