Supreme Court Reserves Judgment On Appeals Against HC Order Quashing West Bengal SSC Appointments

The bench of CJI Sanjiv Khanna and Justice Sanjay Kumar heard the matter. The SSC appointments had come under the scanner due to the infamous cash-for-jobs recruitment scam.

During the hearing, the CJI verbally remarked that there is no concrete guarantee that the only reliable source of data for matching the OMR scans in the SSC server was the data retrieved from NYSA employee Pankaj Bansal. The CJI noted that CBI agreed that data found from Bansal was the second copy of the apparently original data which was copied from the data available with NYSA. 

"See the difficulty is this- we don't have the original mark sheets- CBI says that the data with Bansal matches with the SSC server data- but still we cannot authenticate and vouch for, that this is the original one because in the absence of the original mark sheets- the suspicion is now today even to the extent whether these are the original marksheets of the candidates? Because there is so much (inaudible) done on such a large scale, it's impossible to authenticate that" 

Previously, 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 having destroyed the original OMR sheets after 1 year of the exam in terms of the exam rules.

There are 5 main categories of stakeholders which the Court have 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.

How Was The Scanning Of OMR Sheets Conducted & What Were The CBI Findings

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 mismatches of results were 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.

Today, the counsel for the CBI submitted that the investigation reveals that the data retrieved from Bansal was the original data itself and the original data was then manipulated before feeding into the SSC server and appointments were on that basis. The Counsel submitted : 

"There is a final tampering in the original data- which is the Pankaj Bansal data and the marks which were subsequently put in and all the appointments done (by SSC)" 

Arguments By The Parties 

Sr Advocate Vibha Makhija appearing for those candidates who were not selected by the SSC panel suggested that the better alternative to setting aside the entire selection is rather to knock out those found to be selected through wrong means and instead fill their vacancy again with those in the merit list. 

"I have a right to be considered in accordance with my merit, so I cannot be thrown- my right to public employment is a very valuable right especially in the current economic circumstances. So everybody who falls into the merit list must be considered." Makhija submitted. 

She added that setting aside the entire selection would adversely affect those selected candidates who have now reached the prescribed age limit for appointment.

Sr Advocate Jaideep Gupta appearing for the West Bengal SSC submitted that (1) the High Court's finding that SSC has not co-operated was incorrect considering the various affidavits filed clarifying its stance; (2)on  the issue that the number of recommendations made and appointment done were not reconciling, Gupta clarified that whenever a recommendation is made, if the candidate refuses the appointment offer, then SSC board looks at other recommendations. 

Sr Advocates PS Patwalia and Karuna Nandy appearing for a few of the candidates(whose appointments were set aside), briefly submitted that until the trial is over, there is no concrete evidence to know which data is original. They said that the data retrieved subsequently from Bansal was 'highly suspect' and could not be relied upon. 

Sr Advocate Meenakshi Arora also appearing for a few non-teaching candidates(whose appointments were cancelled) suggested that for it to be concluded as to who is tainted or untainted it was imperative that individual suspects be given a show cause notice to prove their case in person. This would ensure that principles of natural justice are followed through. 

Sr Advocate Dushyant Dave appearing for a few appellants submitted that the CBI inquiry was uncalled for by Justice Gangopadhyay since no such prayer for CBI inquiry was made to begin with. 

" The entire controversy started as I said in the beginning, because of these rank jumpers, the petition was only in respect of them, that after expiry of panel you have appointed people- they were a small group of people, they had to go out no difficulty. 

During the hearing of that, Justice Gangopadhyay ordered CBI inquiry, without any basis, without any prayer ....learned judge gives an interview while hearing  that matter, then joins politics- the entire enquiry is tainted." 

"I don't think your lordships are hearing this because it is unpalatable to the judiciary."  He added 

Objecting to this, the CJI interjected and said that the case is being heard on merits and not on politics of the state. He said: 

"The proceedings are going on absolutely dispassionately, we are going into the issue of evidence, not any political issue." 

Referring to the decision in Pooran Mal v. Director of Inspection, the CJI said "The law in India is settled that evidence even if collected illegally is admissible" 

Counsels appearing for the untainted candidates mainly submitted that as per the previous decisions of the Apex Court, it would be unfair to make the innocent candidates suffer who had no involvement in the alleged scam. 

Sr Advocates AM Singhvi appearing for type C and D untainted candidates added that having a segregation of candidates was imperative.

Sr Advocate Rakesh Dwivedi also appeared for the State of West Bengal. 

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).

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.

Case Details : THE STATE OF WEST BENGAL vs. BAISHAKHI BHATTACHARYYA (CHATTERJEE) SLP(C) No. 009586 - / 2024 and connected matters