WB SSC Scam | Supreme Court Sets Aside Calcutta HC Direction For CBI Investigation Into Govt Decision For Supernumerary Posts

The Supreme Court today (April 8) set aside the Calcutta High Court's direction for CBI investigation into the supernumerary posts created by the West Bengal Government during the pending challenge to the 2016 WB SSC Appointments in the High Court. 

Notably, the Apex Court on April 3 had upheld the decision of the Calcutta High Court, which invalidated nearly 25000 teaching and non-teaching staff appointments made by the West Bengal School Selection Commission (SSC) in 2016. However, it had clarified that it would separately hear the Special Leave Petition filed by the State of West Bengal against the High Court's direction for CBI investigation into the supernumerary posts. 

A supernumerary post is a temporary or additional position created to accommodate a candidate who, though may be entitled to hold a regular post, could not be accommodated due to the unavailability of such regular posts. 

Today, the bench of CJI Sanjiv Khanna and Justice Sanjay Kumar considered the observations made in the High Court's order in paragraphs 257 and 265 where it was mentioned that the State Government had in fact passed a cabinet decision approved by the State Governor for the creation of supernumerary posts to accommodate the alleged illegal appointees. 

The said cabinet decision was passed as an order dated May 19, 2022 while the challenge to the SSC appointments was pending before the High Court. 

Key Reasons Why The HC Direction Was Set Aside :

(1) The bench noted that in the main writ petition before the High Court, no specific prayer was there to challenge the cabinet decision,  consequent to which an order dated 19.5.2022 was issued by the State Govt after approval by the Governor, nor was there a prayer that the order be made the subject matter of the police bureau or CBI investigation. 

(2) It also considered a government note dated 5.5.2022 which recorded that while powers under S.19 of the WB SSC Act 1997 were being issued in respect of wait-listed candidates, the same shall be subject to the outcome of the pending litigation before the High Court. At that time, it was not possible to find out the tainted candidates by a thorough examination. 

Notably, S.19 of the Act states that "In the discharge of its functions the Commission shall be guided by such directions as may be given to it by the State Government from time to time in conformity with the provisions of this Act." 

(3) The Court observed that Articles 74(2) and 163(3) provide that any advice tendered by the Ministers/ Council of Ministers to the President/ Governor can not become a subject of inquiry in any Court. 

The Court relying upon the above aspects, concluded : 

"Having regard to aforsaid discussion we are of the view that the High Court was not justified in referring the issue of creation of supernumerary posts to CBI. Pursuant to the cabinet decision, we take note of Articles 74(2) and 163(3) which specifically state that the question whether any, and if so what, advise was taken by the cabinet of ministers to aid and advise the governor shall not be inquired into in any court. The aforesaid direction is set aside." 

It was also clarified that the present observations are not detrimental to the other aspects that the CBI is investigating concerning the Teachers' Recruitment Scam. 

"We clarify that our observations in this order are limited to the extent of direction to investigate the creation of supernumerary posts and not in any way reflect upon the investigation and chargesheets filed by CBI in other aspects."

Sr Advocate Kapil Sibal appeared for the State of West Bengal and submitted that no appointments have been made of the wait-listed candidates subsequent to the cabinet decision. 

The Counsel for the original writ petitioners before the High Court contended that the High Court observed that these supernumerary posts were created to protect the illegal appointees. It was added that the creation of supernumerary posts led to further vacancies. 

Sr Advocate Maninder Singh appearing for Respondent no.1 - Baisakhi Bhattacharya argued that if a decision of the cabinet of ministers is based on some illegality, then such a decision would be a colourable exercise of power with complete absence of any bona fide. Thus, the constitutional immunity to cabinet decisions under S.163(3) will not come into play here. 

Case Details : THE STATE OF WEST BENGAL Versus BAISHAKHI BHATTACHARYYA (CHATTERJEE) AND ORS.| C.A. No. 4800/2025 

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