SC stalls HC order for CBI probe into supernumerary posts created by WB cabinet

The Supreme Court on Tuesday granted part relief to the West Bengal government by setting aside a Calcutta high court decision for a probe by the Central Bureau of Investigation (CBI) into a state cabinet’s decision in 2022 to create supernumerary posts for accommodating waitlisted candidates in state-run and aided schools.

A bench comprising Chief Justice of India (CJI) Sanjiv Khanna and Justice Sanjay Kumar, however, stressed that the probe into other aspects related to the appointment of 25,753 teachers and staffers in the state-run and aided schools would continue.

The state, represented by senior advocate Kapil Sibal, pointed out that the Cabinet decision could not be made subject to CBI probe when there is no mala fide on part of the state. Sibal even relied on Article 163 to show how the HC erred by ordering investigation.

The SC bench found such a direction to be a potential assault on federalism. “It was in 2022 that the Cabinet passed the order to create supernumerary posts to benefit those of the waitlisted candidates. This was also made subject to the proceedings in the high court. How could there be an investigation by a central agency over a decision of the state cabinet? Would it not defeat the entire purpose of federalism?”

“We are of the view that the HC was not justified in raking up the issue of supernumerary posts for CBI investigation... We set aside and quash this direction,” the bench said.

The matter pertains to a cabinet decision of the state government on May 5, 2022, wherein the Governor too had given the approval, subject to the final decision of the high court. A ‘supernumerary post’ refers to a temporary position created to accommodate an employee who is entitled to a regular post that is currently unavailable.

The HC, in its order of April 22 last year, set aside the recruitments and even found faults with the Cabinet note of May 2022, and directed the CBI to probe as the said effort of state was seen to benefit the illegally appointed candidates.

The CJI-led bench on April 3 invalidated the appointment of 25,753 teachers and staffers, and noted that the entire recruitment process carried out by the WB school service commission (WBSSC) in 2016 was vitiated by fraud and manipulation and cannot be sustained.

The top court, while dealing with the state’s appeal, noted that the state’s decision was based on the Cabinet’s aid and advice, which enjoys immunity under Article 163(3) of the Constitution. The provision states, “The question whether any, and if so what, advice was tendered by Ministers to the Governor, shall not be inquired into in any court.”

The court clarified that its direction is limited to the aspect of probe ordered into creation of supernumerary posts and does not impinge the investigation by CBI into other aspects of irregularities related to the 2016 recruitments carried out by WBSSC.

The HC order had said, “Investigation by CBI, with regard to the creation of supernumerary posts is imperative to bring to light, the nature and extent of the scam and persons that are involved therein. It is shocking that, at the level of the Cabinet of the state government, decision is taken to protect employment obtained fraudulently in a selection process conducted by SSC for state funded schools, knowing fully well that, such appointments were obtained beyond the panel and after expiry of the panel, at the bare minimum.”

The petitioners who had approached the high court were represented in the top court by senior advocates Maninder Singh and Rauf Rahim. It was argued that if a Cabinet decision is based on an “illegality”, it becomes a colourable exercise of power and cannot be given any protection from probe.

The bench said that the 2022 Cabinet decision specifically mentions the view expressed by WBSSC that the candidates were wrongly appointed by way of rank jumping. The top court held, “The decision of Cabinet was taken at a time when there was pending litigation in the high court and the possibility of finding out, by thorough examination, tainted candidates was not possible.”

It further held, “The May 5, 2022, Cabinet decision specifically mentions the view expressed by WBSSC that they were wrongly appointed candidates by way of rank jumping. Nothing was kept hidden by the Cabinet.” The bench also questioned the petitioners who neither made any specific challenge to the Cabinet note before the HC nor sought investigation by the police or CBI.

Documents placed before the HC had suggested that the state government, at the level of the Cabinet had approved creation of the supernumerary posts to accommodate the persons who had received employment illegally in the selection process. The state had accepted there were widespread illegalities in the selection process and that, the numbers of persons who received appointments illegally could not be determined with exactitude. They had resolved to create supernumerary posts to accommodate the illegal appointees.

However, HC took adverse view of this decision and said, “The state has resolved to expend taxpayers’ money to accord sanction to an employment secured dishonestly. Such course of action of the State violates Articles 14 and 16 which enjoins upon the state the obligation to grant appointments in conformity with such provisions and never otherwise.”