In its 41-page judgment dated 3 April, the Hon’ble Supreme Court scrapped the selection of 25, 752 teachers and non-teaching staff by the West Bengal School Service Commission (WBSSC) for the recruitment of non-teaching staff in Groups C and D, and Assistant Teachers for Classes XI and X, as well as Classes XI and XII in State funded Schools.

In 2016, WBSSC, the statutory selection body , had issued a notification for regional and state level selection tests and commenced the selection process for (i) 12,905 Assistant Teachers for Classes IX & X ; (ii) 5,712 Assistant Teachers for Classes XI & XII ; (iii) 2, 067 non-teaching staff under Group C; and (iv) 3,956 non-teaching staff under Group D .

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M/s Nysa Communications Pvt. Ltd. was entrusted with the task of scanning and assessing the Optical Mark Recognition (OMR) sheets. A common list of successful candidates with the marks was not uploaded. However, candidates were allowed to log in to the WBSSC website to check if they had been called for a personality test or interview. Personality tests/ interviews were conducted and final status rank lists were published on the website on different dates in November and December 2017 and August 2018. The list did not display the marks obtained but it included both the candidates who were in the panel and those on the waiting list.

Before the results were published, Baisakhi Bhattacharjee filed a Writ Petition against the State government and others before the Calcutta High Court in December 2016, alleging deprivation of age relaxation. This became the lead case and other WPs were filed subsequently in 2021 seeking individual appointments and alleging illegalities in the 2016 recruitment process raising, inter alia, issues like appointment letters were issued but candidates were not allowed to join, rank jumping, pick and choose method in selecting candidates and flouting of recruitment rules in that candidates neither in the merit list nor in the waiting list were given appointments and also joined the schools.

On some occasions, WBSSC filed affidavits accepting the illegalities and mistakes. WBSSC was unable to produce the original OMR sheets and submitted mirror/scanned copies. Citing Rule 21 of the WBSSC (selection for appointment to the posts of Teachers for  Classes IX -X  in Secondary and Higher Secondary ) 2016 and Rules 2016 relating to Classes XI-XII, WBSSC justified its executive decision dated 22 July 2019 in  destroying  the physical OMR sheets one year after the results were declared.

However, the applicable rule, 2009 relating to selection process for Group C and Group D does not permit the destruction of OMR sheets for these. WBSSC admitted the destruction of OMR sheets of all candidates including of Group C and D and expressed inability to submit the same.

A four-member committee, chaired by Justice Ranjit Kumar Bag, a retired Judge of Calcutta High Court was appointed to scrutinize and verify the appointments of non-teaching staff in Groups C and D.

Upon realizing illegalities in appointment, WBSSC terminated the services of some candidates under Rule 17 of the Classes IX-X and XI-XII Rules, and Rule 18 of the 2009 Rules. In accordance with the interim orders passed by the High Court, WBSSC also withdrew the recommendations for certain candidates. The single judge of Calcutta High Court vide order dated 15 February 2022, directed the CBI to investigate the alleged illegalities in the recruitment process. Pursuant to further orders, four different FIRs were registered by CBI.

The Supreme Court while hearing a batch of Special Leave Petitions  on 9 November 2023, directed,  inter alia, to complete the investigation within two months and submit its Report before the High Court as well as to take such steps lawful steps in pursuance of their investigation. Pursuant to the directions for investigations, the CBI had submitted four interim and final Reports before the High Court.

The Division Bench of Calcutta High Court vide its judgment dated 22 April 2024 set aside the entire selection process directing, inter alia, (i) all appointments granted in the selection processes involved being violative of Articles 14 and 16 of the Constitution of India , are declared null and void and cancelled,  and (ii) persons who had been appointed outside the panel, after expiry of the panel as also those who submitted blank OMR sheets but obtained appointments , must return all remunerations and benefits with 12 per cent interest per annum. CBI was directed to investigate allegations with custodial interrogation, if necessary, and WBSSC was directed to undertake a fresh selection process in compliance with the Rules.

On 3 April 2025, the Supreme Court upheld this judgment with certain modifications. While justifying its decision, the Court cited more than 10 Supreme Court cases to explain the sanctity of its decision. However, most of the cases have apparently no or little resemblance with the facts and circumstances of the present WBSSC case. Here no irregularity like leakage of question papers, mass-copying, impersonation or any other unfair practice were  noticed or proved  during examinations on the part of any  candidate. Here the innocent, non-tainted candidates have been punished for faults they did not commit.

There is no  evidence, but only assumption that the appointments of non-tainted candidates  were part of the fraudulent purpose conspired by a corrupt administration.  In one cited case, Joginder Pal and Others v. State of Punjab and Others , 2014 ( para 15 )  the Supreme Court observed that  “every effort should be made to separate tainted from untainted candidates , and if it is found that segregating the tainted from untainted is possible , cancellation of the entire selection process would be incompatible with law.”

It is an established principle of law that before a person is deprived of his life to livelihood   the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected ( Makhan Singh v. State of Punjab, 1952 ). When a decision is depriving thousands of young, untainted candidates who were selected through examination/ interview fairly conducted and employed for years deserve minute application of the judicious mind in a holistic manner.  Many of them are now married, have children and dependents including ailing parents.  A majority ( including tainted category who helplessly became prey of systematic corruption ) of them  belong to poor and middle class families and fresh recruitment  process provides no guarantee of success to the non-tainted candidates .

In the first case cited case, Sachin Kumar and others v. Delhi Subordinate Service Selection Board (DSSSB) and others, 2021 the Court observed that “care must be taken to ensure that the innocent are not unfairly penalized alongside the wrongdoers by cancelling the entire process. To treat the innocent and wrong doers equally would violate Article 14 of the Constitution, as it would involve treating unequals equally.”

The  Supreme Court itself has no doubt that the tainted and untainted could be separated by the WBSSC, that is why tainted candidates  have been directed to refund their remuneration and they have been also barred to participate in the fresh selection  process.

The judgment refers to a statistical report submitted by WBSSC before the High Court that percentage of alleged irregularity were 8.50%, 14.47% , 38.43% and 44.87 % in case of Assistant Teacher (IX-X) , Assistant Teacher (XI-XII) , Group-C (clerk) and Group -D respectively. Further, as submitted by WBSSC, excluding 239 candidates who fall under both OMR mismatch and other illegalities, WBSSC acknowledges that 6,276 illegal appointments were made. However, WBSSC in its affidavit dated 27 September 2022 mentioned that CBI came across a considerable number of illegal appointments and the Commission is not in a position to state the details of such candidates.

While placing data before the Court to segregate meritorious candidates from those appointed illegally, WBSSC argues that the entire selection process should not be annulled. At para 28, the Hon’ble Court observed, “We may have accepted this argument if WBSSC had the original physical OMR sheets or the mirror copy of the OMR sheets.”  It is relevant to mention that there is also a dichotomy in the position taken by the tainted candidates and the untainted candidates regarding the scanned copies of OMR sheets recovered from Pankaj Bansal and M/S Data Scantech Solutions (job given by M/s Nysa Communication Pvt. Ltd ).

It was the stand of the tainted candidates before the Court that the scanned copy of the OMR sheets are not the ones which the candidates had filled up at the time of examination. However, the untainted candidates claim that the scanned copies of the OMR sheets are the original sheets which the candidates had filled up (para 38). Apparently , there is no iota of  proof or evidence , in any way , that these untainted candidates are part of the fraud or cheating, or participated in the manipulations done in the system .

However, the Supreme Court opined, “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.”

Unfortunately, the services of non-tainted candidates (not mentioned as competent or qualified) who are a majority of the candidates have been terminated abruptly but no compensation has been awarded to provide them any social security for the irredeemable loss, injustice and humiliation suffered.

While concurring with the Calcutta Division Bench decision, the Apex Court concluded, “We find no valid ground or reason to interfere with the direction of the High Court that the services of tainted candidates, where appointed, must be terminated, and they should be required to refund any salaries /payments received. Since their appointments were the result of fraud, this amounts to cheating. Therefore, we see no justification to alter this direction’ (Para 45). These candidates are not eligible to participate in the fresh selection process also.

“For candidates not specifically found to be tainted, the entire process has been rightly declared null and void due to the egregious violations and illegalities, which violated Articles 14 and 16 of the Constitution. As such, the appointments of these candidates are cancelled. However, candidates who are already employed need not be asked to refund or restitute any payments made to them. However, their services will be terminated” (Para 46).

Surprisingly in the entire judgement, not even once has Article 21, i.e., Right to life and liberty, has been mentioned although right to life has been snatched away and untainted category has been dumped with the tainted one. The Court has trusted the WBSSC to comply with the judgment relating to tainted and non-tainted categories. Very rightly, the criminal proceedings would continue.

To conclude, the Hon’ble Court apparently erred to apply its judicious mind in meting out justice to the untainted category keeping in consideration their right to livelihood and reasonable classification.  It is little solace that some of the appointed candidates who do not fall within the category of tainted candidates and who might have previously worked in different departments of the State Governments or with an autonomous body, have liberty to join in earlier employments without any break in the service as the numbers of such candidates is very small.

This a case which demands further  innovation or reorientation of   principles of Natural Justice and Equity, given the corruption in the governance system and pathetic unemployment situation of educated eligible youth. This judicial fallibility unless cured in review under Article 137 of the Constitution may affect the aspirations of youth of Bengal and the entire education system of the state.

(The writer is a lawyer, author and social activist. Views expressed are personal.)