Manik Bhattacharya vs Ramesh Malik

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SLP (CIVIL) NO(S). 16325­16326 OF 2022

DR. MANIK BHATTACHARYA …..PETITIONER(S)

VERSUS

RAMESH MALIK AND OTHERS …..RESPONDENT(S)

WITH

SLP (CIVIL) NO(S).17649­17650/2022

SLP (CIVIL) NO.17412/2022

SLP (CIVIL) NO. 17137/2022

SLP (CIVIL) NO(S). 17044­17045/2022

SLP (CIVIL) NO.17208­17209/2022

SLP (CIVIL) NO.17756/2022

ORDER

1. The present set of petitions except SLP(C)Nos.17649­

Signature Not Verified 17650/2022 arises out of a judgment of a Division Bench of Digitally signed by NIRMALA NEGI Date: 2022.10.18

the High Court at Calcutta delivered on 2 nd September 2022, 18:35:33 IST Reason:

1 | Page sustaining, in substance a set of orders passed by a Single

Judge directing investigation by the CBI into the allegations

of irregularities in the recruitment process of Assistant

Primary Teachers. Such recruitment took place through the

Teachers Eligibility Test (TET) examination 2014 which was

held in the year 2015. A slew of other directions has also

been issued by the Single Judge and we shall refer to them to

the extent necessary later in this order. Altogether 23 lakh

candidates participated in the selection process for filling up

approximately 43,000 vacancies and about 40,000

candidates were appointed. SLP(C)Nos.17649­17650/2022

has been filed by the petitioner in SLP(C)Nos.16325­16326 of

2022 directly assailing the order of the Single Judge passed

on 27th September, 2022 (in WPA No.2005 of 2022 and WPA

No.15010 of 2022) by which the Central Bureau of

Investigation (CBI) was directed to register a case and take

certain steps in relation to OMR sheets of the candidates who

took part in the said examination.

2. The Division Bench considered in the impugned

judgment/ orders passed in two writ petitions brought by

unsuccessful candidates. In the first writ petition (registered

2 | Page as WP No. 7907 of 2019) applicants were Ramesh Malik and

eight other aspirants for the said posts and this writ petition

was filed in the year 2019. The petitioners in this proceeding

sought cancellation of appointment of the private respondent

impleaded therein, inter­alia, on the ground that

appointments were made through corrupt process and not on

the basis of merit and performance of the successful

candidates. In the other writ petition filed by one Soumen

Nandy, registered as WPA No. 9979 of 2022, complaint was

non­disclosure of certain informations with regard to the 68

candidates pertaining to their answer scripts. These were in

OMR sheets. From the prayers of the petitioner in the said

writ application, a copy of which has been annexed to SLP (C)

No. 17137 of 2022, we do not find particulars of the

information he has asked for. In both the writ petitions,

however, Court monitored CBI investigation had been asked

for.

3. There are also certain other writ petitions filed

questioning legality of the recruitment process, but orders

passed in these proceedings do not appear to have been

appealed against before the Division Bench in the judgment

3 | Page which has been assailed before us. In the judgment

impugned in this batch of proceedings, the Division Bench

dealt with a set of orders passed on 13 th June, 15th June, 17th

June, 20th June and 21st June, 2022. The next series of

orders, as we find from the materials available before us,

were passed on 19th July, 20th July, 22nd July, 25th July, 29th

July and 1st September 2022. These orders were not under

appeal before the Division Bench but they are linked with the

first set of orders.

4. The orders and directions passed by the Single Judge

in the month of June can be categorized under three heads:­

(i) Investigation by Central Bureau of Investigation

Direction has been issued by the Single Judge on

CBI to start investigation by registering a case

against the Board and start interrogating the

President of the Board of primary education,

Dr.Manik Bhattacharya as also the Secretary of the

said Board. Said Manik Bhattacharya is the

petitioner of SLP(C) Nos. 16325­16326 of 2022 and

SLP(C)Nos.17649­17650 of 2022. A Special

4 | Page Investigation Team (SIT) has also been directed to be

constituted by the CBI for investigation. The SIT

constitutes of senior officers from the CBI.

(ii) Invalidation of appointment of 269 candidates

The Single Judge has also, by the order passed on

13th June 2022, invalidated appointment given to

269 candidates (these candidates were not parties in

either of the two writ petitions). 58 of these

candidates have approached us with SLP (C) No.

17412 of 2022. The background in which this order

was passed is that after publication of the regular

panel of successful candidates, a second or

additional panel was also published. In this panel,

the 269 candidates were found to be successful. The

stand of the Board on this count is that there was

agitation and several representations by several

unsuccessful candidates over the selection process.

An expert committee was formed which found the

model answer in respect of one question actually had

two correct answers. Thus, that question had two

5 | Page correct answers but the model answer had ignored

the other one. One mark was recommended to be

added to all the candidates who had opted for the

other correct answer. The Single Judge found this

exercise was done without any public announcement

and there was arbitrary selection of candidates for

undue favour.

(iii) Removal of the Board President

The President of the Board, Dr. Manik Bhattacharya

was added as party respondent in WPA No.7907 of

2019. He, alongwith Dr. Ratna Chakraborty Bagchi

(who was also added as a party respondent) was

directed to cooperate with the CBI. The Single Judge

in the order passed on 20th June 2022 opined that

the President of the Board was responsible for

misleading the Court and made dishonest and

unscrupulous attempt in producing documents. In

the same order, the Court removed Dr. Manik

Bhattacharya from the post of President of the West

Bengal Board of Primary Education forthwith and

6 | Page directed the State Government to appoint any other

fit person as President of the Board. We are apprised

in course of hearing that the State Government has

already removed Dr. Manik Bhattacharya from the

post of President of the Board and engaged another

person as President thereof. Dr. Manik Bhattacharya

was also directed to file affidavits of assets of

moveable and immovable assets of his own as also in

respect of his wife, son and daughter in law by two

weeks. It has transpired in course of hearing that

such exercise has also been undertaken. In the

judgment under appeal certain adverse comments

were also made against Dr. Manik Bhattacharya.

5. The Division Bench in the operative part of the

judgment held:­

“A. The forensic investigation directed to be handled by the CBI deserves no interference.

B. The Hon’ble Single Bench shall be also entitled to monitor investigation into any money trail, as considered necessary.

C. The entire investigation shall be Court Monitored and the Hon’ble Single Bench shall be entitled to call for periodic reports from the investigation agencies.

7 | Page D. The disparaging remarks reflected in the Orders impugned of Hon’ble Single Bench shall be treated to be Obiter at this stage. However, at the same time, this Court does not interfere with the Order of the Hon’ble Singe Bench removing MB from his official position, in view of the visible proximity of MB to the evidence so far before the Court and also directed to be marshalled in the forensic investigation.

E. The 269 terminated candidates cannot severally or jointly claim at this stage a prior right to be heard considering the prima facie materials which point to a fraudulent exercise connected to their appointments and, without also completely eliminating their several or joint complicit roles, if any, in abetting the fraud.” (quoted verbatim from the paperbook)

6. Special leave petitions have been filed by, apart from

Dr. Manik Bhattacharya, the State of West Bengal SLP

(C)Nos.17208­17209 of 2022, West Bengal Board of Primary

Education SLP (C) No.17044­17045, SLP (C) No.17137 of

2022 and SLP (C) No.17756 of 2022. The Main case, so far as

Dr. Manik Bhattacharya is concerned, is that his removal

could not be directed by the Board as the statutory

provisions under Section 9 of the Primary Education Act,

1973 vests such power with the State Government only. It

has been submitted on his behalf that he was never given

adequate opportunity of hearing and in the writ petitions also

there was no specific allegation against him in any event. It is

argued that he ought to have been given opportunity of filing

8 | Page affidavit before such drastic action was ordered against him.

It has also been asserted that drastic orders were being

passed directing the course of investigation and the nature of

the orders passed projected him as guilty before he had the

opportunity to give his side of the case.

7. All the petitioners have questioned legality of the

orders directing investigation to the CBI by the Single Judge.

In this regard reliance has been placed on the case of State

of West Bengal and Others vs. Sampat Lal and Others

[(1985) 1 SCC 317]:­

“15. As already pointed out, power vests in the police authorities of the State Government for conducting investigation into allegations relating to an offence. However, the stand taken by the respondents was that the State Government and the police authorities had not acted properly and the investigation was not being conducted as required by law. As appears from the order of June 7, 1983, Borooah, J., directed notice to issue to the State of West Bengal as also to the other authorities concerned to show cause against the issue of a writ. No hearing was, however, afforded to the State Government or its officers when direction to appoint the Special Officer in whom power of inquiry was to be vested, was made. There could be no scope for appointing a Special Officer unless the statutory channel of investigation was found not to have functioned properly. There was no basis at that stage to assume that the contents of the letters as also the facts stated in the columns of the newspaper had not been contradicted. It was the State Government or its officers who alone could have authoritatively indicated the facts showing whether the allegations contained in the letters or the newspaper reports

9 | Page were true and if so, to what extent, or how the investigation was being carried on and what stage it had reached so as to enable the Court to come to a prima facie conclusion that the State Government and the police authorities were not discharging properly their statutory obligation to carry out an investigation. But when no notice was given to the State Government and no opportunity was offered to them, it is difficult to see how an ex parte order could be made on such an assumption. When we say this, we do not wish to be understood to say that in no case an ex parte order can be made by the Court. If the facts stated in the letter or the writ petition are credible and there is such urgency that the ends of justice might be defeated by not making an ex parte order or giving of notice without ex parte order might lead to aggravation of oppression or exploitation or removal or elimination of evidence, the Court would certainly be justified in making an ex parte order. But here there were no such circumstances at all and the Court could have very well issued notice to the respondents and tried to find out whether there was any necessity for directing the appointment of DIG, CBI to act as a Special Officer and requiring the police authorities of the State to extend all possible help as may be required by him. We are of the view that Borooah, J., should have issued notice to the State Government, afforded a reasonable opportunity to it and its officers who were already in seisin of the investigation to make a report in regard to the action taken by them and after making an overall judicial assessment of the situation, the need for appointing a Special Officer should have been considered.

16. The appointment of a Special Officer with a direction to inquire into the commission of an offence can only be on the basis that there has not been a proper investigation. There is a well­defined hierarchical administrative set­up of the police in the State of West Bengal as in all other States and to have created a new channel of inquiry or investigation is likely to create an impression that everything is not well with the statutory agency and it is likely to cast a stigma on the regular police hierarchy. We are inclined to agree with Mr Chatterjee for the appellant that in the facts and circumstances of the case and keeping the nature of

10 | P a g e the order made in view, the direction to appoint a Special Officer with powers to inquire should not have been made until the appellants had been given a hearing and the Court had the papers of investigation laid before it for being prima facie satisfied that the investigation had either not been proper or adequate.”

On the same point the cases of State of West Bengal

and Others vs. Committee for Protection of Democratic

Rights, West Bengal and Others [(2010) 3 SCC 571], Sakiri

Vasu vs. State of Uttar Pradesh and Others [(2008) 2 SCC

409] and Kunga Nima Lepcha and Others vs. State of

Sikkim and Others [(2010) 4 SCC 513] were also referred to

by the learned counsel for the parties.

8. As regards the 269 candidates, whose appointments

were directed to be dismissed by the Single Judge, the

reasoning of the Division Bench can be found in sub­

paragraph E of the operative part of the order which we have

quoted above. It has been pointed out by the learned senior

counsel representing the petitioners that they were serving

for a period beyond four years and that they had acquired

permanent status in the said posts. In such circumstances,

it is their submission that in a case they were not even

11 | P a g e impleaded as parties, their abrupt termination from service

would be unsustainable in law.

9. Petitioners have asked us to set aside investigation by

the CBI and also revoke all termination orders as according

to them, these orders were passed without adhering to the

basic requirement of procedural fairness.

10. Mr. S. V. Raju, learned Additional Solicitor General

has appeared on behalf of the CBI and his submission is that

his clients are in the process of uncovering a recruitment

scam of extraordinary dimension and the investigation at this

stage prima­facie reveals exchange of monetary

considerations for giving appointments. He has argued that

investigation ought to be allowed to continue under these

circumstances. The Learned Senior Counsel appearing for

the writ petitioners/respondents in effect echoes the

submission of the CBI to sustain their main plea that the

investigation ought to go on. Further argument of the

respondents/writ petitioners is that having regard to the

nature of the allegations and the materials which have

surfaced during hearing of the case investigation ought not to

12 | P a g e be scuttled at this stage. It has been emphasised that the

writ petitioners represent all the genuine candidates and all

they want is recruitment in a fair and transparent manner.

11. In our opinion, under normal circumstances, it would

not be appropriate to straightaway direct CBI investigation in

a recruitment related controversy unless, of course the

allegations are so outrageous and the perpetrators of the

alleged offences are so powerful that investigation by the

State police would be ineffectual. The reasons given by the

learned Single Judge in directing investigation by the CBI at

such an early stage of the proceeding may fall short of the

standards laid down in the case of Sampat Lal (supra). But

considering the submission of learned counsel for the CBI

and the fact that investigation by the said agency has

substantially progressed, we do not want to stall such

investigation at this stage and wait to see if the State Police

can carry on the same investigation impartially. We

accordingly decline the plea of the petitioners to stay that

part of the order impugned, by which continuance of the

investigation by the CBI has been directed. Before we issue

13 | P a g e further order in this matter, we direct the CBI to file a

comprehensive report as regards the scope and nature of

illegalities they have found in the subject­recruitment

process.

12. Now, we shall turn to that part of the order by which

cancellation of appointment of 269 candidates have been

effected. Such cancellation has not been interfered with by

the Division Bench. The Division Bench has referred to

prima­facie materials which point to a fraudulent exercise

connected with their appointments. On behalf of the

respondents, however, no material has been shown to us

through which these candidates’ direct complicity in the

process of appointment has been shown. What weighed with

the learned Single Judge in directing their termination in a

case where they were not even the parties appears to be

materials that was revealed in response to orders of the

Court. Such orders reflect some kind of investigative role that

was being undertaken by the Court itself in obtaining

documents from the recruiting bodies. It was also not a case

the respective appointments were of very recent origin.

14 | P a g e

13. The duty of the judiciary to follow the principles of

natural justice has been highlighted in the case of Divine

Retreat Centre vs. State of Kerala and Others [(2008) 3

SCC 542]. In this case it has been held:

“51. The order directing the investigation on the basis of such vague and indefinite allegations undoubtedly is in the teeth of principles of natural justice. It was, however, submitted that the accused gets a right of hearing only after submission of the charge­sheet, before a charge is framed or the accused is discharged vide Sections 227 and 228 and 239 and 240 CrPC. The appellant is not an accused and, therefore, it was not entitled for any notice from the High Court before passing of the impugned order. We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case on hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one's own reputation. In our view, the impugned order of the High Court directing enquiry and investigation into allegations in respect of which not even any complaint/information has been lodged with the police is violative of principles of natural justice.

52. It is unnecessary to go into the question as to whether the Divine Retreat Centre is not a “person” contemplated by Article 21 of the Constitution and express any opinion as to whether any right guaranteed by Article 21 of the Constitution has been infringed. Suffice it to note that, the Director of the

15 | P a g e appellant institution has been impleaded as a party respondent in the criminal petition and the whole of the allegations in the anonymous petition are levelled against the appellant and in such a situation it was imperative for the High Court to put the appellant on notice before passing the impugned order.” (emphasis supplied by us)

14. We are of the opinion that the part of the order of the

Single Judge by which appointment of 269 candidates was

terminated ought to be stayed and they also should be

impleaded as party respondents in WPA No.7907 of 2019.

Upon giving them opportunity of filing affidavits and hearing

them, the Single Judge shall take appropriate decision,

depending on the defence that may be taken by those

candidates in the writ petition. In the event the Single Judge

wants the investigation as regards their appointment to be

conducted through the SIT already formed, he may direct so.

15. As regards the case of President of the Board, our view

is that the order of his removal by the High Court was flawed,

not fulfilling the requirement of procedural fairness that is

necessary to direct removal of a person from a public post.

We are not observing here that the High Court cannot at all

direct removal of any person from a public post. But

16 | P a g e ordinarily, such a course shall be taken in a quo warranto

proceeding. Even otherwise, if the Court finds that an

incumbent has appropriated a public post through deceit,

the Court may hold him to be unfit for the post. But in this

case the Court found him to be responsible for

misinformation and for relying on questionable documents

before the Court. In a case like this he should have been

given appropriate opportunity to defend his position. At best,

the Court could have directed him, pending his explanation,

not to discharge his duties in the said post. The order of the

Single Judge directing his removal accordingly shall stand

stayed alongwith the order of the Division Bench which has

confirmed the removal order. But at this stage, we are not

directing his reinstatement in the same post. We have been

apprised that the State Government itself has already

engaged someone as the President of the Board. We

accordingly hold that the present incumbent to the post of

President, West Bengal Board of Primary Education shall

continue to remain in the said post till final outcome of the

writ petition before the Single Judge in which the directions

of the said petitioner’s removal was passed. Dr. Manik

17 | P a g e Bhattacharya shall be entitled to file affidavits to the writ

petitions as also any additional affidavit taken out in

connection with the said writ petitions which may contain

allegations against him. The Single Judge shall take decision

on this aspect as also on other points which may be urged in

the pending writ petitions. Till then, the present incumbent

to the post of President, West Bengal Board of Primary

Education shall continue to discharge his duties in the said

post and Dr. Manik Bhattacharya’s position shall be

dependent upon the outcome of the pending writ petition.

16. We accordingly direct:­

(a). The CBI under the SIT shall continue their

investigation as directed by the Single Judge and file a

comprehensive report before this Court within a period

of four weeks as regards progress of the investigation.

(b) (i). The order passed directing cancellation of 269

candidates by the Single Judge on 13th June 2022 and

the part of the order of the Division Bench confirming

that order shall stand stayed and remain in abeyance.

18 | P a g e

(ii). Each of these 269 individuals are directed to be

added as a party respondent in WPA No.7907 of 2019

and they shall be entitled to file affidavits to defend

their appointment to the said posts, if so advised. The

appointing authority will proceed in accordance with

law and take appropriate decision after the writ court

adjudicates on legality of their appointments. This

direction would be subject to any order that may be

passed by this Court at a subsequent stage of this

proceeding.

(c) (i). The order removing Dr. Manik Bhattacharya

passed by the Single Judge and confirmed by the

Division Bench shall remain stayed until further order

of this Court. We, however, are not directing his

reinstatement for the reason already disclosed in

earlier part of this order. Dr. Manik Bhattacharya shall

be entitled to defend his position in the writ petition by

filing affidavits in respect of allegations made against

him.

19 | P a g e

(ii). We have protected Dr. Manik Bhattacharya from

any coercive steps that may have been taken by the

CBI in course of the investigation. There was no

allegation from the CBI in course of hearing of these

matters that he was not cooperating with the

investigation. It was, however, mentioned before us on

12th October 2022 that he has been arrested by the

Enforcement Directorate. So far as CBI is concerned,

let the order protecting him from coercive steps

continue until further order.

17. Notice be issued in SLP(C)No.17756 of 2022.

Let counter­affidavits be filed within two weeks.

Rejoinder thereto within one week thereafter. List the matters

after four weeks.

………………………………. J.

(ANIRUDDHA BOSE)

………………………………. J.

(VIKRAM NATH) NEW DELHI;

18th October 2022

20 | P a g e