The State Of West Bengal vs Baishakhi Bhattacharyya (Chatterjee)

2025 INSC 437 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 9586 OF 2024)

STATE OF WEST BENGAL ..... APPELLANT

VERSUS

BAISHAKHI BHATTACHARYYA (CHATTERJEE) AND OTHERS ..... RESPONDENTS

WITH

CIVIL APPEALS ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS. 9614, 11883, 9637, 10617, 12148, 11752, 10552, 10603-10607, 11765, 11867, 11759, 11761, 12144, 11880, 11746, 10485, 10599, 10545, 11769, 12766, 11721, 11878, 10669-10670, 11857, 11756, 11846-11848, 15233, 15232, 16109, 12134, 13358, 14070-14072, 16110, 18501, 17041, 17022, 16911-16915, 15234, 11313, 15839, 15842, 14116-14117, 15231, 15843, 15844, 13337-13339, 14331, 15845, 15101, 13989, 16088-16091, 15846, 15391-15392, 15835, 15833, 15838, 15836, 16160, 16111, 15298, 15077, 16113, 16114, 16118, 15987, 16115, 18621, 16249, 16116, 16117, 16643-16645, 16887, 15294, 16093, 19768, 12770, 18366, 16933, 20455, 22110, 20462-20464, 19179, 22112, 22158-22159, 22111, 26465, 22109, 25078 OF 2024

AND

CIVIL APPEALS ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS. DIARY NOS. 20709, 21000, 21281, 23851, 25090, 25093 25096, 27432, 27690, 27815, 28146, 28314, 28508, 30235, 30857, 32112, 32157, 33587, 25086, 27647, 27934, 28790, 29406, 30458, 30460, 30645, 31169, 33463, 27969, 41922, 20467, 30364, 30457, 30498, 34059, 20930, 31175 OF 2024, AND DIARY NO. 2104 OF Signature Not Verified 2025 Digitally signed by Deepak Guglani Date: 2025.04.03 14:36:33 IST Reason: Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 1 of 41 JUDGMENT

SANJIV KHANNA, CJI.

Leave granted.

2. The impugned judgment dated 22.04.2024 en bloc sets aside the 2016

selection process conducted by the West Bengal Central School Service

Commission1 for the recruitment of non-teaching staff in Groups C and D, and

Assistant Teachers for Classes IX and X, as well as Classes XI and XII.

3. The appellants before us are the selectees, some of whom have been working

for over five years. They fall into two categories: (i) selectees with purported

evidence and material indicating wrongdoing and (ii) other selectees who claim

that they were validly selected and have committed no wrongdoing. The State

of West Bengal and the WBSSC have also challenged the impugned judgment.

4. The respondents before us are the writ petitioners who have succeeded before

the High Court at Calcutta. The Central Bureau of Investigation2 which had

carried out the investigation pursuant to the directions given by the High Court

at Calcutta is also arraigned as a respondent.3

5. The implicated selectees have challenged the judgment on the following main

grounds: First, that the evidence against them is weak, unproven, and

inadmissible. Second, they were punished without an inquiry, violating the

1 Hereinafter, “WBSSC”.

2 Hereinafter, “CBI”.

3 Diary No. 21281/2024, SLP (C) 16643-45/2024, SLP (C) 18366/2024, SLP (C) 11721/2024, SLP (C) 14331/2024, SLP (C) 22110/2024, SLP (C) 25078/2024 etc.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 2 of 41 principles of natural justice. Third, while they were chargesheeted, they have

not been convicted and should be treated as innocent. The other selectees,

the State of West Bengal, and WBSSC argue that the High Court erred by

annulling the entire selection process based on the CBI report and should have

only cancelled the appointments of those found guilty, leaving the other

appointments intact.

FACTUAL MATRIX

6. To avoid prolixity, we will not revisit the detailed facts or the origin of the

litigation, as they are clearly outlined in the impugned judgment. Instead, we

will focus on the key facts necessary to decide the appeals:

• The West Bengal School Service Commission Act, 1997 governs the

establishment of the School Service Commission, which is responsible for

selecting individuals for teaching and non-teaching positions in State-

funded schools in West Bengal.

• The West Bengal Board of Secondary Education Act, 1963 governs the

establishment and functioning of the West Bengal Board of Secondary

Education,4 which appoints teachers and non-teaching staff in the

institutions as per the West Bengal School Service Commission Act, 1997.

• The West Bengal School Service Commission (Selection for Appointment

to the posts of Teachers for Classes IX and X in Secondary and Higher

Secondary Schools) Rules, 20165 govern the selection process for

Assistant Teachers for Classes IX and X.

4 Hereinafter, “Board”.

5 Hereinafter, “Class IX-X Rules”.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 3 of 41 • The West Bengal School Service Commission (Selection for Appointment

to the posts of Teachers for Classes XI and XII in Secondary and Higher

Secondary Schools) Rules, 20166 govern the selection process for

Assistant Teachers for Classes XI and XII.

• The West Bengal School Service Commission (Selection of Persons for

Appointment to the Post of Non-Teaching Staff) Rules, 20097 govern the

selection process for Group C and Group D Non-Teaching posts.

• In 2016, WBSSC, the statutory selection body, had issued a notification for

regional and state level selection tests and commenced the selection

process for the following posts:

(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.

• M/s. Nysa Communications Pvt. Ltd.8 was given the task of scanning and

assessing the Optical Mark Recognition9 sheets.

• The candidates who had appeared in the exam were allowed to log in and

check their respective status/result on the evaluation of the OMR sheet on

or about the following dates:

(a) Assistant Teachers for Classes IX & X 02.05.2017

(b) Assistant Teachers for Classes XI & XII 08.05.2017

(c) Non-teaching Staff Group ‘C’ 24.07.2017

(d) Non-teaching Staff Group ‘D’ 23.06.2017

6 Hereinafter, “Class XI-XII Rules”.

7

Hereinafter, “2009 Rules”.

8 Hereinafter, “M/s. Nysa”.

9 Hereinafter, “OMR”.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 4 of 41 • A common list 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.

• WBSSC then conducted the interviews and personality tests, maintaining

a ratio of 1:1.4 for teachers and 1:2 for non-teaching staff, based on the

marks obtained by the candidates.

• Personality tests/interviews for the candidates were conducted on the

following dates:

(a) Assistant Teachers for Classes IX & X 06.11.2017 onwards

(b) Assistant Teachers for Classes XI & XII 14.09.2017 to 24.09.2017

(c) Non-teaching Staff Group ‘C’ 24.10.2017 to 02.11.2017

(d) Non-teaching Staff Group ‘D’ 16.08.2017 to 31.08.2017

• The final status rank list was published on the website of WBSSC as per

the details given below:

(a) Assistant Teachers for Classes IX & X 28.08.2018

(b) Assistant Teachers for Classes XI & XII 27.11.2017

(c) Non-teaching Staff Group ‘C’ 20.12.2017

(d) Non-teaching Staff Group ‘D’ 06.11.2017

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.

• Even before the results were declared, WPA No. 30649 of 2016 was filed

by Baishakhi Bhattacharyya against the State of West Bengal and others

before the High Court at Calcutta in December 2016. The allegation made

by Baishakhi Bhattacharyya was the failure to grant age relaxation. This

case became the lead case before the High Court at Calcutta.

• Other writ petitions were filed subsequently in 2021, seeking individual

appointments and alleging illegalities in the 2016 recruitment process.

Illustratively, some of the issues raised were:

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 5 of 41

I. Appointment letters were received but candidates were not allowed to

join.10

II. Non-publication of the fourth phase of the counselling list contrary to

the 2009 Rules.11

III. Rank jumping i.e. candidates holding the rank below the petitioner(s)

had been given appointments.12

IV. Candidates in the waiting list for Group D posts in the panel published

on 20.06.2019 were ignored, as a new notification dated 14.06.2021

had been published initiating a new recruitment process.13

V. Pick and choose method in selecting candidates and flouting of

recruitment rules.14

VI. Candidate(s) neither in the merit list nor in the waiting list was/ were

given appointment and also joined the school(s).15

• Counter affidavits, affidavits and reports were filed by the WBSSC and the

Board.

• On some occasions, WBSSC filed affidavits accepting the illegalities and

mistakes, be it on account of rank-jumping or the person being issued

appointment letter(s) was not one of the selected/empanelled candidates.

• When questioned, WBSSC stated that it could not verify the number of

illegal recommendations or provide details of such candidates. We will later

refer to their affidavit dated 27.09.2022 filed in WPA No. 17273 of 2021 for

further explanation.

10 WPA No. 14612 of 2021.

11 WPA No. 12266 of 2021.

12 WPA 18585 of 2021.

13 WPA 12270 of 2021.

14 WPA No. 13700 of 2021.

15 WPA 17273 of 2021.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 6 of 41 • A four-member committee, chaired by Justice Ranjit Kumar Bag, a retired

Judge of the High Court at Calcutta, was formed. The committee included

representatives from WBSSC, the Board, and an Advocate. This committee

was tasked with scrutinizing and verifying the appointments of non-teaching

staff in Groups 'C' and 'D'. We will discuss their findings later.

• WBSSC was unable to produce the original OMR sheets. Initially, they

submitted mirror/scanned copies, but later claimed they had not retained

these copies. They stated that these copies had been provided by M/s.

Nysa.

• WBSSC, citing Rule 21 of the Classes IX-X and Classes XI-XII Rules,

justified its executive decision dated 22.07.2019 to destroy the physical

OMR sheets one year after the results were declared. We will examine this

argument subsequently.

• Although the applicable rules clearly do not permit the destruction of OMR

sheets for non-teaching staff (Groups C and D), WBSSC violated these

rules by directing the destruction of the physical OMR sheets through its

executive decision dated 22.07.2019.

• 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 at Calcutta, WBSSC also withdrew the

recommendations for certain candidates.

• Vide order dated 15.02.202216, the Single Judge directed the CBI to

investigate the alleged illegalities in the recruitment process. Pursuant to

16 Passed in WPA 12270 of 2021.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 7 of 41 further orders dated 05.04.2022,17 07.04.2022,18 18.05.2022,19 and

20.05.202220 of the Single Judge, four different FIRs21 were registered by

CBI.

• Special Leave Petitions were filed before this Court and heard.22 Vide order

dated 09.11.2023, while dealing with a batch of cases in Achinta Kumar

Mondal and Others etc. v. Laxmi Tunga and Others etc.,23 this Court

directed that:

“We accordingly direct the CBI to complete the investigation within two months and submit its report before the High Court. The CBI shall also be at liberty to take such steps as may be lawful in pursuance of their investigation.

(ii) We also direct that protection to the appointments which is being accorded today in this order shall continue for a period of six months to enable the Division Bench to finally adjudicate on the subject-disputes. The Division Bench shall examine all the points that may be raised before it including the question of maintainability of the proceedings.

(iii) The proceedings in which petitioners/appellants have approached this Court directly without being impleaded as parties to the proceedings before the High Court shall also have right of audience before the High Court but for that purpose, appropriate application(s) shall have to be filed before the High Court.

(iv) As we foresee the possibility of a large number of litigants approaching the Division Bench of the High Court, we leave it to the Division Bench to formulate its own procedure for regulating the manner in which hearing shall be conducted by it. The Division Bench may explore the possibility of hearing the parties in representative capacity, so that there is no multiple hearing on the same point of law or fact.”

17 Passed in WPA 18585 of 2021.

18

Passed in WPA 5538 of 2022.

19 Passed in WPA 5406 of 2022.

20 Passed in WPA 12270 of 2021.

21 RC0102022A0002, RC0102022A0003, RC0102022A0004 and RC0102022A0005. 22 Arising out of impugned final/interim judgment and orders dated 16-02-2023 in MAT No. 274/2023 & MAT No. 259/2023 passed by the High Court at Calcutta. 23 SLP (C) Nos. 4078-4079/2023.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 8 of 41 • Pursuant to the direction for investigation, the CBI had submitted four

interim and final Reports24 before the High Court.

• Vide impugned judgment dated 22.04.2024, the Division Bench set aside

the entire selection process. The Division Bench has given the following

directions:-

“363. In view of the discussions above, we issue the following directions:

(i) Writ petitions appearing in the monthly list of March, 2024 of this Bench, which are not filed and numbered in the years 2021 and 2022 are released from the list due to lack of jurisdiction/determination.

(ii) 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.

(iii) OMR sheets available in the three hard disks, if not already done or such portion not done, must be uploaded in the website of SSC forthwith and made available to the public for viewing.

(iv) 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 received by them to the State exchequer along with interest calculated at 12 percent per annum, from the date of receipt thereof till deposit, within a period of four weeks from date.

(v) In default, the District Magistrates under whose jurisdictions, such candidates reside, will take expeditious steps to realize such amount from such persons, as arrears of land revenue and shall ensure that recovery is made within a period of six weeks of the date of initiation of proceeding for recovery.

(vi) Respective District Inspectors of School will report to the respective District Magistrates as to whether money directed to be paid by the persons concerned have been paid to the State exchequer or not.

24 Dated 09.01.2024 in WPA 18585/2021, 16.01.2024 in WPA 5406/2022, 05.02.2024 in WPA 5406/2022 and 07.12.2022 in WPA 13700/2021.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 9 of 41

(vii) CBI will undertake further investigation in respect of all the four cases. CBI will interrogate all persons who had received appointments beyond the panel, after expiry of the panel and after submitting blank OMR sheets. If necessary, CBI shall undertake custodial interrogation in respect of each of them.

(viii) CBI will undertake further investigations with regard to the persons involved, in the State Government approving creation of supernumerary post to accommodate illegal appointments. If necessary, CBI will undertake custodial interrogation of such person involved.

(ix) CBI shall submit its reports with regard to further investigations as directed herein, preferably within three months from date, with the jurisdictional Court.

(x) Leave granted to SIT to seek appropriate directions so that the investigations and trials come to their logical conclusions.

(xi) SSC shall undertake a fresh selection process in respect the declared vacancies involved in these selection processes preferably within a fortnight from the date of declaration of results of the ensuing elections.

(xii) Appointments for preparation, evaluation and scanning of OMR sheets shall be made by SSC by open tender and after declaring the eligibility criteria and other terms and conditions of the contract.

(xiii) SSC shall follow the Rules governing the selection processes in letter and spirit.

(xiv) SSC shall make available all policy decisions with regard to compliance of the Recruitment Rules governing any of the categories of the selection process in its website.”

LEGAL POSITION

7. This Court in several cases has examined the question when the entire

selection process should be struck down in case of irregularities. It will be

apposite to refer to some of the decisions as the ratio and reasoning, in our

opinion, is clear and does not suffer from contradictions. In Sachin Kumar and

Others v. Delhi Subordinate Service Selection Board (DSSSB) and

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 10 of 41 Others,25 this Court observed that determining when the examination process

is vitiated by irregularities requires an in-depth fact-finding inquiry. The answer

lies in examining whether the irregularities were systemic enough to undermine

the sanctity of the process. In some cases, the irregularities may border on or

even constitute fraud, which severely damages the credibility and legitimacy of

the process. In such cases, the only option is to cancel the result entirely.

These are situations where it is difficult to separate the tainted from the

untainted participants, and the irregularities are widespread, indicating a

malaise or fraud that has corrupted the process. On the other hand, there are

cases where only some participants have committed irregularities. In such

cases, it may be possible to segregate the wrongdoers from those who

adhered to the rules. The innocent should not suffer for the actions of the

wrongdoers. By segregating the guilty, the selection process for the untainted

candidates can proceed to its logical conclusion. This aligns with the principle

of equality of opportunity under Article 16(1) of the Constitution of India, as well

as the fundamental requirement of Article 14 of the Constitution, which

mandates a fair, equitable, and reasonable process. 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 the wrongdoers

equally would violate Article 14 of the Constitution, as it would involve treating

unequals equally. The innocent should not be punished for faults they did not

commit. Finally, while the decision of the recruiting body is subject to judicial

control, the body must retain a measure of discretion.

25 (2021) 4 SCC 631.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 11 of 41

8. Sachin Kumar (supra) refers to an earlier decision of three Judges of this

Court in Bihar School Examination Board v. Subhas Chandra Sinha and

Others26 where it was held that when the conduct of all examinees, or at least

the vast majority, at a particular examination centre reveals the use of unfair

means, it may not be necessary for the board to give individual opportunities

of hearing to the candidates if the entire examination is being cancelled. This

is not a case where anyone is charged with unfair means and would need to

defend themselves. An examination vitiated by widespread unfair means falls

into a separate category, so giving notice in individual cases is not required.

9. In Board of High School and Intermediate Education, U.P., Allahabad v.

Ghanshyam Das Gupta and Others,27 a Constitution Bench of this Court held

that when there is a discovery of widespread unfair practices, such as the

leakage of question papers or destruction of answer books, it may not be

necessary to give each examinee an opportunity to be heard. While it may not

be appropriate to completely whittle down the requirement of natural justice

and fair play, a straitjacket formula cannot be applied when the examination

was not properly conducted or when the majority of the examinees did not act

as they should have. Therefore, insisting that the Board should hold a detailed

inquiry into each individual case was considered incorrect. It was also

observed that such an approach would delay the functioning of an autonomous

body like the Board of High School and Intermediate Education.

10. In line with the above ratio, this Court in Anamica Mishra and Others v. U.P.

Public Service Commission, Allahabad and Others,28 has held that the

26 (1970) 1 SCC 648.

27 AIR 1962 SC 1110.

28 (1990) Supp SCC 692.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 12 of 41 cancellation of the entire recruitment process was not justified as there was no

systemic flaw in the entire recruitment process, and the issue was only with

regard to calling the candidates for interview. However, in Madhyamic

Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti and Others,29 the

entire examination was cancelled in view of the report of mass copying and

leakage of the question paper. In Madhyamic Shiksha Mandal, M.P. (supra),

the teachers did not object to the students entering the examination hall with

books, indicating their complicity. It was held that the fact that some innocent

students may have suffered in the given facts was inconsequential.

11. Similarly, in Union of India and Others v. Rajesh P.U., Puthuvalnikathu and

Another,30 this Court examined a case where a Special Committee scrutinized

the answer sheets of 134 successful and 184 unsuccessful candidates,

identifying only 31 as involved in unfair practices. Based on this, the Court

struck down the decision of the competent authority to cancel the entire

recruitment process, deeming it extreme, unreasonable, and unnecessary

given the circumstances. The Court applied the test of whether there were

widespread, pervasive issues that had undermined the entire process and

whether it was impossible to weed out those benefiting from the irregularities

or illegalities.

12. In yet another decision in Inderpreet Singh Kahlon and Others v. State of

Punjab and Others,31 this Court elucidated three principles which must be

adhered to when cancelling appointments. First, there must be satisfaction

29 (1998) 9 SCC 236.

30 (2003) 7 SCC 285.

31 (2006) 11 SCC 356.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 13 of 41 regarding the sufficiency of the material collected so as to enable the State to

conclude that the selection process was tainted. Second, to determine whether

the illegalities committed go to the root of the matter and vitiate the entire

selection process, such satisfaction should be based on a reasoned and

thorough investigation conducted in a fair and transparent manner. Third, there

must be sufficient material to support the conclusion that the majority of the

appointments were part of the fraudulent purpose or that the system itself was

corrupt. This three-pronged test, as outlined by Sinha J., is appropriate and

should be adhered to.

13. The precursor to Inderpreet Singh Kahlon (supra) involved raids that led to

the recovery of large sums of cash from the house of the Chairman of the

Punjab Public Service Commission. The allegations suggested that the

Chairman – who served from 1996 to 2002 – had made several appointments

between 1998 and 2001 for extraneous considerations, including monetary

ones. The affected appellants before this Court, whose services were

terminated, comprised four categories of officers selected through four

recruitment examinations held between 1997 and 2001. Two FIRs came to be

registered against the Chairman and other officers of the Public Service

Commission. However, among the selectees, an FIR was filed only against

one. In this factual background, Sinha J. drew a distinction between a proven

case of mass cheating in a Board Exam and an unproven charge of corruption

in the context of appointment of a civil servant. The en masse termination order

setting aside several selections spread over 3-4 years was reversed. This was

an unprecedented case of mass termination, with a walloping impact and

consequences. Applying the threefold factual and legal test, en masse

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 14 of 41 termination was set aside. In this context, it was observed that termination

orders should only be issued in cases where it is found to be impossible or

highly improbable to separate the tainted cases from the non-tainted ones.

14. In our considered view, the opinion expressed by Dalveer Bhandari J. in

Inderpreet Singh Kahlon (supra) regarding the strict compliance with the

principles of natural justice is not in line with the ratio of the earlier three Judge

Bench decision in Bihar School Examination Board (supra). We would like

to observe that the en masse termination in Inderpreet Singh Kahlon (supra)

was based on the charge of corruption against the former Chairman, leading

to the cancellation of the entire selection process and appointments, even

though the charges against him had not yet been proven in a court of law.

15. Similarly, in another two Judge Bench decision in Joginder Pal and Others v.

State of Punjab and Others,32 this 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.

16. In Chairman, All India Railways Recruitment Board and Another v. K.

Shyam Kumar and Others,33 where the decision of the Railway Recruitment

Board to cancel the examination and conduct retest on the ground of

malpractices involving mass copying, leakage of question paper and

impersonation was struck down by the High Court, this Court – reversing the

judgment of the High Court – upheld the order of the Board to cancel the

32 (2014) 6 SCC 644.

33 (2010) 6 SCC 614.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 15 of 41 examination and conduct retest. Considering the material on record, the

widespread irregularities and malpractice in the first written test, and the

ultimate object of fair selection, this Court upheld the finding of the Board that

the test was vitiated due to mass copying, impersonation, and question paper

leakage, rather than misconduct by just a few candidates. In the said facts and

circumstance, the decision of the Board to cancel the selection and reconduct

the examination was held to be reasonable and well-balanced.

17. In State of Tamil Nadu and Another v. A. Kalaimani and Others,34 there

were allegations of large-scale malpractices involving tampering with OMR

sheets. After re-evaluation and further scrutiny, the Teachers Recruitment

Board found that 196 candidates had been the beneficiaries of fraudulent

alteration of marks. This Court referred to the observations in Gohil Vishvaraj

Hanubhai and Others v. State of Gujarat and Others35 to hold that the

authority of the State to maintain the purity of the examination process is

unquestionable. Gohil Vishvaraj Hanubhai (supra) takes note of the settled

dictum that the cancellation of the examination is necessary and required in

cases where large-scale malpractices in the course of the conduct of any

examination process are alleged. In this context, this Court in A. Kalaimani

(supra) held that despite the inconvenience caused to the untainted

candidates, a serious doubt regarding the magnitude of manipulation in the

examination has to be given due weightage. It was held that the finding of the

Board that there were chances of more people being involved in the

34 (2021) 16 SCC 217.

35 (2017) 13 SCC 621.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 16 of 41 manipulation of marks was a bona fide decision being taken by the Board to

instil confidence in the public regarding the integrity of the selection process.

18. In Vanshika Yadav v. Union of India and Others,36 this Court observed that

a holistic view must be adopted by assessing the extent of unfair means used

and whether it is possible to separate the tainted candidates from the untainted

ones. The court must ensure that allegations of malpractice are substantiated

and that the material on record, including investigative reports, supports this

conclusion. There must be at least some evidence for the court to reach such

a conclusion. However, the standard of evidence need not be unduly strict.

Specifically, the material on record need not point to a single, definitive

conclusion that malpractice occurred at a systemic level. Nevertheless, there

must be a real possibility of systemic malaise, as reflected in the material

before the court.

19. The following principles emerge from the aforesaid discussion:

• When an in-depth factual inquiry reveals systemic irregularities, such as

malaise or fraud, that undermine the integrity of the entire selection

process, the result should be cancelled in its entirety. However, if and

when possible, segregation of tainted and untainted candidates should be

done in consonance with fairness and equity.

• The decision to cancel the selection en masse must be based on the

satisfaction derived from sufficient material collected through a fair and

thorough investigation. It is not necessary for the material collected to

conclusively prove malpractice beyond a reasonable doubt. The standard

36 (2024) 9 SCC 743.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 17 of 41

of evidence should be reasonable certainty of systemic malaise. The

probability test is applicable.

• Despite the inconvenience caused to untainted candidates, when broad

and deep manipulation in the selection process is proven, due weightage

has to be given to maintaining the purity of the selection process.

• Individual notice and hearing may not be necessary in all cases for

practical reasons when the facts establish that the entire selection process

is vitiated with illegalities at a large scale.

ILLEGALITIES IN THE SELECTION PROCESS

20. In our opinion, 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. The High Court has referred to the illegalities in the

impugned judgment as under:

“335. The evidence placed before us have established the following illegalities in the selection process: –

(i) SSC had appointed an agency namely M/s. NYSA for the purpose of scanning and evaluating the OMR sheets by a closed-door tender process in violation of Articles 14 and 16 of the Constitution of India

(ii) such agency had engaged another agency namely, Data Scantech to scan the OMR sheets

(iii) although scanning was done at the office premises of SSC, it is claimed by SSC that, SSC had never engaged Data Scantech to scan the OMR sheets or authorised M/s. NYSA to engage Data Scantech or any other agency

(iv) SSC had destroyed the original OMR sheet ostensibly with scanned mirror image thereof being preserved in its server

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 18 of 41

(v) CBI did not find any scanned mirror image of OMR sheets in the server of SSC

(vi) OMR sheets had been destroyed without the scanned mirror images being preserved in the server of SSC

(vii) SSC had provided scanned OMR sheets to RTI applicants in the year 2018 till 2023 claiming that such OMR sheets were from its database although, CBI did not find any OMR sheets in the server of SSC

(viii) appointments higher than the declared vacancies had been given in respect of all 4 categories

(ix) appointments had been given to persons who were not even in the panel

(x) appointments had been given to persons who submitted blank OMR sheets

(xi) appointments had been given persons after expiry of the panel

(xii) persons placed lower in rank had been given appointment in preference to persons placed higher in rank in the merit list

(xiii) merit list containing the marks obtained by the respective candidates had never been published

(xiv) counselling had been held subsequent to the expiry of the panel

(xv) total beneficiaries of the illegalities are yet to be identified and rendered improbable given the stand of SSC, Board and State

(xvi) SSC had applied for permission to create supernumerary posts to accommodate the illegal appointees

(xvii) Recruitment Rules governing the four categories had never been adhered to either in letter or spirit”

The aforesaid established irregularities, cumulatively and incrementally,

demarcate the contours of the court to navigate the reliefs sought. To ensure

clarity and objectivity, we shall independently examine the facts and form our

conclusion.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 19 of 41

21. First, we begin by referring to the findings of the Justice (Retd.) Bag

Committee, which undertook a thorough scrutiny and verification of the

appointments of non-teaching staff in Groups C and D. The summary of the

findings are as under:

“Summary of findings of the Enquiry Committee. On consideration of our findings, described in detail under heading 6 and fixing of responsibility of the individuals described under heading 7, we would like to summarize our findings as follows:

(i) The Central Commission changed the rank of the candidates in the panel before uploading the panel in the website of the Central Commission on June 20, 2019 in spite of direction of the High Court at Calcutta to upload to entire existing panel already published on November 6, 2017.

(ii) The constitution of the Committee approved by the Hon’ble MIC of School Education Department (Dr. Partha Chatterjee) notified in the form of an Order of the Joint Secretary to the Government of West Bengal on November 1, 2019 to supervise, monitor and guide the Central Commission in connection with pending recruitment process cannot be construed as direction of the State Government in terms of Section 19 of the School Service Commission Act, 1997 and as such the said Order cannot have any validity in the eye of law.

(iii) Dr. Sharmila Mitra, Chairperson of Southern Regional Commission, Dr. Mahuya Biswas, Former Chairperson of the Eastern Regional Commission, Mr. Subhajit Chattopadhyay, 55 Former Chairman of the South-Eastern Regional Commission and Sk. Sirajuddin, Chairman of Northern Regional Commission and Chairman of Western Regional Commission abdicated their duties and responsibilities in counseling the candidates and recommending the names of the candidates of Group “D” posts in terms of the provisions of Rule 16(v) and Rule 18(1) and (2) of the School Service Commission Rules, 2009 during the period of validity of the panel.

(iv) Dr. Subires Bhattacharya, Former Chairman of the Central Commission usurped the power and authority of the Regional Commissions by counseling the candidates and making recommendation of names of the candidates for Group “D” posts by manipulating infrastructure and evolving illegal procedure in violation of the provisions of Rule 16(v) and 18(1) and (2) of the School Service Commission Rules, 2009.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 20 of 41

(v) Dr. Subires Bhattacharya, Dr. Sharmila Mitra, Dr. Mahuya Biswas, Mr. Subhajit Chattopadhyay and Sk. Sirajuddin are prima facie liable for disciplinary action on the charge of gross dereliction of duty for violating the provisions of Rule 16(v) and Rule 18(1) and (2) of the School Service Commission Rules, 2009 and as such disciplinary action can be taken against them by the Disciplinary Authority or the Pension Sanctioning Authority in case of retirement of any of the above officials in terms of the provisions of the Rules by which they are governed.

(vi) Samarjit Acharya, Programme Officer of the Central Commission and Dr. Santi Prasad Sinha, Former Advisor of the Central Commission are prima facie liable for committing offences punishable under Section 465/417/468/34 of Indian Penal Code.

(vii) Prof. Saumitra Sarkar, Mormer Chairman of the Central Commission, Mr. Ashok Kumar Saha, Former Assistant Secretary, Former Secretary and Former Chairman of the Central Commission, Dr. Santi Prasad Sinha, Former Advisor of the Central Commission and Dr. Kalynmoy Ganguly, President of the Board are prima facie liable for committing offences punishable under Section 120B of Indian Penal Code.

(viii) FIR can be registered against Samarjit Acharya and Dr. Santi Prasad Sinha on the allegation of committing offences punishable under Section 465/417/468/34 of Indian Penal Code and against Prof. Saumitra Sarkar, Mr. Ashok Kumar Saha, Dr. Santi Prasad Sinha and Dr. Kalyanmoy Ganguly on the allegation of committing offences punishable under Section 120B of Indian Penal Code.

xxx xxx xxx

6. Summary of findings of the Enquiry Committee. On consideration of our findings, described in detail under heading 5 and fixing of responsibility of the individuals described under heading 6, we would like to summarise our findings as follows:

(i) The Central Commission did not maintain transparency at the time of publication of the panel of Group “C” posts on December 20, 2017, as the candidates could not access t the panel to know his/her rank vis-a-vis the rank of other candidates in the panel and the copy of the panel was not circulated among the Regional Commissions and the offices of the District Magistrates of the concerned district.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 21 of 41

(ii) The Central Commission changed the rank of the candidates in the existing panel before uploading the entire panel in the website of the Central Commission on June 20, 2019 in spite of direction of the High Court at Calcutta to upload the entire existing panel already published on November 6, 2017.

(iii) The constitution of the Committee approved by the Hon’ble MIC of School Education Department (Dr. Partha Chatterjee) notified in the form of an Order of the Joint Secretary to the Government of West Bengal on November 1, 2019 to supervise, monitor and guide the Central Commission in connection with pending recruitment process cannot be construed as direction of the State Government in terms of Section 19 of the School Service Commission Act, 1997 and as such the said Order cannot have any validity in the eye of law.

(iv) Dr. Sharmila Mitra, Chairperson of Southern Regional Commission, Dr. Mahuya Biswas, Former Chairperson of the Eastern Regional Commission Dr. Chaitali Bhattacharya, Former chairperson of South-Eastern Regional commission, Mr. Subhajit Chattopadhyay, Former Chairman of the South-

Eastern Regional Commission and Dr. Sk. Sirajuddin, Chairman of Northern Regional Commission and Chairman of Western Regional Commission abdicated their duties and responsibilities in counselling of the candidates and recommending the names of the candidates of Group “C” posts in terms of the provisions of 73 amended Section 7 of the School Service Commission Act, 1997 and Rule 16(v) and Rule 18(1) and (2) of the School Service Commission Rules, 2009 during the period of validity of the panel.

(v) Dr. Subires Bhattacharya, Former Chairman of the Central Commission during the first half of the year 2018 and Dr. Sharmila Mitra, Former Chairperson of the Central Commission During the second part of the year 2018 usurped the power and authority of the Regional Commissions by counselling the candidates and making recommendation of names of the candidates for Group “C” posts by manipulating infrastructure and evolving illegal procedure in violation of the provisions of amended Section 7 of the School Service Commission Act, 1997 and Rule 16(v) and 18(1) and (2) of the School Service Commission Rules, 2009.

(vi) Dr. Subires Bhattacharya, Dr. Sharmila Mitra, Dr. Mahuya Biswas, Dr. Chaitali Bhattacharya, Mr. Subhajit Chattopadhay and Dr. Sk. Sirajuddin are prima facie liable for disciplinary action on the charge of gross dereliction of duty for violating the provisions of amended Section 7 of the School Service Commission Act, 19997 and the provisions of Rule 16(v) and

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 22 of 41 Rule 18(1) and (2) of the School Service Commission Rules, 2009 and as such disciplinary action can be taken against them by the Disciplinary Authority or the Pension Sanctioning Authority in case of retirement of any of the above officials in terms of the provisions of the Rules by which they are governed.

(vii) Mr. Samarjit Acharya, Programme Officer of the Central Commission and Dr. Santi Prasad Sinha, Former Advisor or the Central Commission are prima facie liable for committing offences punishable under Section 465/417/468/34 of Indian Penal Code.

(viii) Prof. Saumitra Sarkar, Former chairman of the Central Commission, Mr. Ashok Kumar Saha, Former Assistant Secretary, Former Secretary and Former Chairman of the Central Commission, Dr. Santi Prasad Sinha, Former Advisor of the Central Commission and Dr. Kalyanmoy Ganguly, President of the 74 Board are, prima facie, liable for committing offences punishable under Section 120B of Indian Penal Code.

(ix) FIR can be registered against Samarjit Acharya and Dr. Santi Prasad Sinha on the allegation of committing offences punishable under Section 465/417/468/34 of India Penal Code and against Prof. Saumitra Sarkar, Mr. Ashok Kumar Saha, Dr. Santi Prasad Sinha and Dr. Kalyanmoy Ganguly on the allegation of committing offences punishable under Section 120B of India Penal Code.”

22. We have four reports submitted by the CBI. We would like to quote some of

the passages from the report dated 05.02.2024, submitted by the CBI in

compliance with the order dated 24.01.2024 passed by the High Court at

Calcutta. The relevant portion of the said report reads as under:

“3. That during investigation, it was revealed that the West Bengal Central School Service Commission (hereinafter referred to as ‘commission’ had awarded a work order to M/s Nysa Communication Private Limited (‘hereinafter referred to as M/s. NYSA’) for scanning and evaluation of OMR answer sheets pertaining to the selection tests of Group – D, Group – C, Assistant Teachers for classes IX – X and XI – XII.

4. Investigation has established that Sh. Puneet Kumar was the then Director and Sh. Niladri Das was the then Vice President of the said M.s Nysa Communications Pvt. Ltd.

during relevant period. It has been established during

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 23 of 41 investigation that Sh. Niladri Das was in charge of operations in respect of recruitment examinations conducted by WBCSSC and frequently visited the officer of WBCSSC to attend to the actual operational part and did the requisite liaison on behalf of the agency for necessary compliance of the instructions given by WBCSSC. Sh Puneet Kumar, being the Director, mainly looked after the financial affairs of the agency and represented it on records.

5. Investigation has established that the scanning of OMR sheets was undertaken by the said M/s Nysa Communication Pvt Ltd at WBCSSC office at Acharya Sadan under direct supervision of Sh Niladri Das and in presence of WBCSSC officials. It has been further established that M/s NYSA communication Pvt. Ltd. had further given work order w.r.t. scanning the original OMR to M/s Data Scantech Solutions, Noida who remained present on the premises of WBCSSC for the scanning work. After completion of scanning, the precessed data in the form of scanned images of OMRs, scan data etc. were handed over by M/s Data Scantech Solutions to M/s Nysa Communication Pvt Ltd. who took the same to their officer located at Noida in digital form (Hard Disks) leaving the original hard copies of OMR sheets in the office of the WBCSSC, WBCSSC handed over their answer keys in respect of all subjects to M/s Nysa Communications Pvt Ltd for evaluation of OMR responses.

6. That, while scanning the original OMR sheets by M/s Data Scantech Solutions on behalf of M/s Nysa, two “.DAT” files were generated containing SCAN NO., Bar Code, ROLL NO., VENUE CODE, BOOKLET SERIAL NUMBER, SUBJECT CODE, CATEGORY, GENDER, MEDIUM and RESPONSE CODE. In the process of scanning, the image copies of the original OMR sheets were also captured.

7. That, a sample of the “.DAT” file generated during sscaning of one OMR sheet is cited as an example below: -

Responses of candidates in the OMR is appearing as Response Code in alphabets, while “#” indicates end of one OMR sheet

8. That, two such “.DAT” files are generated since scanning is done twice to avoid any technical error. Thereafter, a final “.DAT” file is prepared which is called a clean data file. After receiving the answer keys from Commission, the same is compared with this final “.DAT” file and a “DBF” File is generated having the score of the candidates.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 24 of 41

9. That during investigation the server database of the Commission was seized by the Central Bureau of Investigation containing all the data pertaining to selection tests of Group – D, Group – C, Assistant Teachers for classes IX – X and XI – XII.

10. That, during investigation of the case, three hard disks were recovered on 15/16.09.2022 from the residence of Pankaj Bansal, ex-employee of M/s. NYSA, located at Ghaziabad. The certificates dated 16.09.2022 u/s 65-B of Indian Evidence Act, 1872, from Shri. Pankaj Bansal were also obtained, in triplicate, with regard to genuineness of the date contained in these three hard-disks so recovered.

11. That, During investigation, data files containing scanned OMRs, “.DAT” files etc. pertaining to the aforesaid WBCSSC recruitment matters were also seized from M/s Data Scantech Solutions. During investigation of RC-03(A)/2022-Kol, the hash values of these Data files of Scantech Solutions were matched with the hash value of the corresponding files recovered from the hard discs seized from Pankaj Bansal and was found to be matching, which establishes that the data contained in the three hard disks recovered from Pankaj Bansal’s possession were not contaminated.

12. That, a similar exercise of matching the data available on the hard disks of Pankaj Bansal with the data seized from the Commission was done during the course of investigation and it was found that there were mismatch between the two, in as much as, the written marks awarded to candidates as available on the server of the commission had been increased to qualify undeserving 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 comparison of these actual/genuine OMR marks with the OMR marks available in WBCSSC Server shows that there is manipulation in 952 nos. of candidates of IX-X, 907 nos. of candidates of XI-XII, 3481 nos. of Gr. C candidates and 2823 nos. of Gr. D candidates.

13. That, during the course of investigation, several emails were found to have been exchanged between the accused officials of the Commission, certain private persons and officials of NYSA. These emails contained lists of candidates, whose OMR marks were found to be increased in the server of the Commission. Besides this, emails have been exchanged between the staff of NYSA themselves containing manipulated data of candidates. This shows the complicity of officials of M/s NYSA in this conspiracy.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 25 of 41

14. That, during investigation, it emerged that in the year 2019, Shri Niladri Das of M/s NYSA Communications Pvt Ltd left NYSA and started his own business in name & style of M/s ND Info Systems Pvt Ltd., Noida, and was engaged in the business of Data processing in line of M/s NYSA. The said Niladri Das poached Pankaj Bansal, Kuldeep Singh, Anoy Saha, Muzammil Hossain and others support staff from NYSA.

15. That, it has emerged from the investigation that before leaving NYSA, Niladri Das and his staffs retained all the data pertaining to recruitment examinations of WBCSSC including the data of Group C,D, Assistant Teacher (IX-X, XI – XII) with them. Even after leaving NYSA, Niladri Das, Pankaj Bansal and Muzammil Hossain kept providing assistance to WBCSSC in the matters of RTI on the basis of the data of NYSA which was manipulated and also hosted on the WBCSSC server. This also establishes that Niladri Das, Pankaj Bansal and Muzammil Hossain who were involved in the entire scam and it was in their knowledge that data has been manipulated and therefore they continued to extend this assistance solely to avoid detection.

16. That, if there would have been no manipulations then the scanned images of OMRs available with WBCSSC were sufficient to respond to RTI queries. Investigation revealed that WBCSSC had destroyed the original OMR sheets and the scanned images of original OMR sheets in the year 2019, which again leads to an inference that the same were destroyed to keep the entire scan under wraps.

17. That, investigation establishes that as a reward for doing aforesaid manipulation in the OMR score, M/s NDISPL of Niladri das was provided work of recruitment of Teachers in Upper Primary conducted by WBCSSC. Apart from this, many other recruitment works were also assigned to Niladri Das by the Government of West Bengal. Various list of candidates related to Upper Primary were communicated to Niladri Das from S P Sinha, Sharmila Mitra, etc. Were found in the email of Niladri Das (niladri@ndispl.com) which shows his criminal conduct.

18. Result of comparison of these electronic records collected from M/s Data Scantech Solutions with that of the hard disks seized from Pankaj Bansal –

(a) As discussed in the preceding paragraphs, the hard disk recovered from Pankaj Bansal contained the marks of written examination, typing test, etc. This marks when compared with marks available in WBCSSC server resulted in the identification of candidates whose marks of written examination, typing test were manipulated.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 26 of 41

(b) M/s Data Scantech Solutions made the initial scanned images of OMR’s. These scanned images were given to M/s NYSA. Pankaj Bansal retained a copy of these scanned images.

(c) That in connection with candidates of Class IX – X, XI – XII, the scanned image of OMR sheets as collected from M/s Data Scantech Solutions pertaining to the alleged candidates whose OMR marks were found manipulated were matched with the scanned image of OMR sheets as available in the hard disk of Pankaj Bansal and the same are found identical.

(d) The Response string of candidates pertaining to IXX and XI- XII as recovered from M/s Data Scantech Solutions matches with the Response String available in the hard disk seized from Pankaj Bansal. On the basis of these response strings the actual/ genuine OMR marks of IX-X and XI-XII candidates were determined. The comparison of these actual/ genuine OMR marks with the OMR marks available in WBCSSC Server shows that there is manipulation in 952 nos. Of candidates of IX-X and 907 nos. of candidates of XI-XII.

(e) The Response string of candidates pertaining to Gr. C & Gr. D as recovered from M/s Data Scantech Solutions matches with the Response String available in the hard disk seized from Pankaj Bansal. On the basis of these response strings the actual/ genuine OMR marks of Gr. C & Gr. D candidates were determined. The comparison of these actual/ genuine OMR marks with the OMR marks available in WBCSSC Server shows that there is manipulation in 3481 nos. of Gr. C candidates and 2823 nos. of Gr. D candidates.

(f) That, the investigation has established the genuineness of the data of hard disks seized from Pankaj Bansal.

19. THAT, in compliance to the solemn order dated 24.01.2024 of this Hon’ble Court, three hard-disks, in original, seized from the residence of Pankaj Bansal along with original certificate dated 16.09.2022 u/s 65-B of Indian Evidence Act, 1872, obtained from Pankaj Bansal are being submitted before this Hon’ble Court. The three hard-disks are in sealed condition. The certificate u/s 65-B of Indian Evidence Act, 1872, in original, obtained from Shri. Pankaj Bansal dated 16.09.2022 is annexed hereto and marked as “Annexure – A”.

20. That, Hon’ble Division Bench at High Court at Calcutta in WPA 2613 of 2018 (Basanta Das Vs The State of West Bengal & Ors) directed CBI on 24.01.2024 for production of the above mentioned three original hard disks seized from Pankaj Bansal and in compliance to such direction all the said

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 27 of 41 three hard disks were returned back by CFSL, Hyderabad in sealed condition and are now being produced with this report.

21. That, the present status of all the above mentioned four recruitment cases of CBI is “disposed –off from investigation”, where multiple charge sheets in each such cases have been filed by CBI before the Learned Trial Court, Alipore. The alleged offences of the First Information Reports and the subsequent irregularities found during the course of investigation have been substantiated in all such cases of CBI and all the charge sheets contain the detailed investigation carried out by CBI in such cases.”

The facts stated in the report dated 05.02.2024, submitted by the CBI, speak

for themselves.

23. WBSSC has been candid enough to admit; (i) rank jumping, that is, to say

candidates having lower rank were preferred over those having higher rank,

(ii) out of panel appointments, that is, candidates who are not in the panel of

shortlisted candidates have been recommended and appointed, (iii)

candidates who were not recommended by WBSSC were appointed by the

Board, and (iv) manipulation of the OMR scores. However, there is a

discrepancy in both the number of candidates and their corresponding

percentages where such irregularities have been identified.

24. The impugned judgment refers to the following statistical report submitted by

WBSSC before the High Court37 :

Alleged S. Class Total OMR Rank Alleged Irregularity Post Name No. Level Recommendation Issue Jumping Irregularity in Percentage Assistant IX-X

1. 11610 808 185 993 8.50% Teacher Level Assistant XI-XII

2. 5596 771 39 810 14.47% Teacher Level Group-C

3. - 2037 783 - 783 38.43% (clerk)

4. Group-D - 3880 1741 - - 44.87%

37 See paragraph 240 of the impugned judgment.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 28 of 41

25. In the written submissions filed on behalf of WBSSC in this Court, two tables

have been furnished. Table 1 pertains to candidates who either jumped rank

or were appointed despite not being in panel. Their details are as under:

TABLE – 1

Rank Out of Panel S. Category (a) Jumped but still Total (d) No

(b) appointed (c) Assistant Teachers for 1 74 111 185 Class IX-X Assistant Teachers for 2 20 18 38 Classes XI-XII 3 Group C 132 249 381 4 Group D 237 371 608 5 Total 463 749 1212

Table 2 furnished by WBSSC is for candidates who were appointed by

manipulating the OMR sheets. Table 2 is as under:

TABLE – 2

No. of Candidates No. of Candidates with alleged OMR Category (a) out of (b) who were score mismatch as appointed per CBI image Assistant Teachers 952 808 Classes IX and X Assistant Teachers for 907 772 Classes XI and XII Group C 3481 782 Group D 2823 1911

26. In another written submission filed on behalf of WBSSC in this Court, it is

claimed that on further verification, the following details of the candidates who

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 29 of 41 either jumped rank or were appointed despite not being in the panel came to

light:

A: Person identified as tainted in the category of Rank Jumping and out of Panel but appointed

Out of Panel but still Category Rank Jumped Appointed Assistant Teachers-

74 111 Classes IX-X Assistant Teachers-

20 18 Classes XI-XII Group C 132 249 Group D 237 371 Total (1212) 463 749

The details of candidates who were appointed by manipulation of the

OMR scores is as under:

B: Person identified having dispute in OMR issue:

No. of Candidates OMR issue and identified by CBI Category recommended by (appointed and not Commission appointed) Assistant Teachers- 952 796 Classes IX and X Assistant Teachers- 907 772 XI and XII Group C 3481 782 Group D 2823 1741 TOTAL 4091

WBSSC claims that 57 Group C and 170 Group D selectees/appointees

with OMR mismatches were not recommended but appointed. However, their

names also figure in the lists of candidates appointed through rank jumping

and out of panel. WBSSC admits that:

• 1,498 out-of-panel candidates were illegally appointed;

• 926 candidates were involved in rank jumping; and

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 30 of 41 • 4,091 candidates were recommended despite OMR mismatches.

Thus, excluding 23938 candidates who fall under both OMR mismatch and

other illegalities, WBSSC acknowledges that 6,276 illegal appointments were

made.

27. At this stage, we would like to refer to the affidavit dated 27.09.2022 filed on

behalf of the WBSSC before the High Court at Calcutta, wherein the WBSSC

stated:

“ I, further say that in the course of the investigation by the Central Bureau of Investigation (CBI, in short) the Chairman and the Secretary of the Commission have had several meetings with the officials of the CBI including the Head of Branch, ACB, wherefrom it appeared that in the course of their investigation/interrogation they have also come across a considerable number of illegal appointments. However, as the CBI has not disclosed the details with regard to the said illegal appointments detected by them to the Chairman and/or Secretary of the Commission, the Commission is not in a position to state the number of such illegal recommendations and/or furnish the details of such candidates.”

WBSSC, however, submits that the affidavit dated 27.09.2022 was filed

before they had access to the status reports of the CBI and the data/details

gathered pursuant to their investigation, including the scanned mirror copies of

the OMR sheets. The data which has now come to light allows segregation of

meritorious candidates from those appointed illegally. Therefore, WBSSC

argues that the entire selection process should not be annulled.

28. We may have accepted this argument if WBSSC had the original physical OMR

sheets or the mirror copy of the OMR sheets. However, WBSSC accepts that

38 57 candidates (Group C – OMR Mismatch), 170 candidates (Group D – OMR Mismatch) and 12 candidates (Class IX-X Assistant Teacher – common to rank jumping and out of panel).

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 31 of 41 they do not have the physical OMR sheets as they were destroyed in terms of

Rule 21 of the Class IX and X and Class XI and XII Rules, which require

retention of the OMR sheets for only one year. Rule 21 of the Class IX and X

and Class XI and XII Rules reads:

“21. Preservation of written examination answer scripts. – The written answer scripts/OMRs of examinations shall be destroyed by the Commission after 1 year from the date of publication of the panel.”

29. Admittedly, the OMR sheets for the candidates who had applied for non-

teaching Groups C and D posts were also destroyed. The reliance placed on

Rule 21 by WBSSC to justify the destruction of OMR sheets is misplaced, as

Rule 21 applies only to Assistant Teachers for Classes IX-X and XI-XII, not to

non-teaching Groups C and D posts. It is acknowledged that the Chairman of

WBSSC, in a letter dated 22.07.2019, instructed the destruction of OMR sheets

related to the 2016 selection process for Assistant Teachers (Classes IX-X and

XI-XII) and Group C and D employees.

30. Moreover, given that the recruitment process was ongoing even after the one-

year validity period of the panel, there is no justification for the destruction of

the OMR sheets. It is apparent that the time period specified in Rule 21 was

coinciding with the time period specified for the validity of the panel. Further,

WBSSC did not maintain the mirror copies of the OMR sheets in their

computer/records. Thus, the destruction of the physical OMR sheets and the

failure to maintain scanned/mirror images of the OMR sheets are significant

factors which were rightly taken into consideration by the High Court. We

concur.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 32 of 41

31. WBSSC has also tried to justify the extension of the term of the panel. As noted

above, the time period of one year specified in Rule 21 for the destruction of

the OMR sheets coincides with the time period specified for the validity of the

panel. There is no doubt that the counselling process and appointments made

to the post of Assistant Teachers for classes IX-X and XI-XII were made after

the expiry of the panel. This is illegal and contrary to the rules. Reliance on the

orders/judgments of the High Court in stray cases of rank jumping, where the

High Court directed to appoint candidates after the expiry of the validity of the

panel, would not have any significant impact. The court, at that stage, was not

concerned and aware of the illegalities in the appointment procedure and had

not specifically examined the question of appointment after the expiry of the

panel.

32. The CBI report dated 05.02.2024 states that M/s. Nysa – contracted for

scanning and evaluation of OMR sheets by WBSSC – undertook the said

exercise at the offices of WBSSC. M/s. Nysa had further sub-contracted the

work order w.r.t. scanning the original OMR sheets to M/s Data Scantech

Solutions, whose officials also remained present at the offices of WBSSC for

scanning. The scanning process was conducted by examining two outputs:- (i)

the scanned image of the OMR sheet and (ii) the scanned image of the answer

string with language coded inputs. M/s. Nysa then made a tabulation of the

results of the OMR sheet evaluation and shared it with WBSSC.

33. It is peculiar that WBSSC did not retain the mirror/scanned copies of the OMR

sheets in their electronic record while allowing M/s. Nysa to keep them. The

CBI report dated 05.02.2024 indicates that WBSSC did initially retain the

scanned/mirror copies of the OMR sheets which were subsequently

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 33 of 41 deleted/destroyed.39 The contradictory stance of WBSSC on the possession

and destruction of scanned/mirror copies of the OMR sheets reflect an attempt

to cover up illegalities and lapses in the selection process. Though the WBSSC

claimed to not retain the scanned/mirror images of the OMR sheets, vide Right

to Information application response dated 12.10.2023 and 18.01.2024, they

furnished the scanned/mirror images of OMR sheets to two candidates.

WBSSC records in the Right to Information application response dated

12.10.2023 and 18.01.2024 that the mirror image of OMR sheet is being

furnished ‘as per data stored in Commission’s database’. However,

subsequently WBSSC took a stance that the said scanned/mirror copies of the

OMR sheets were obtained from the data retrieved by CBI.

34. WBSSC in the initial affidavits filed before the High Court and earlier when they

had furnished information, including marks reflected in the OMR sheets, had

not claimed non-availability of the scanned OMR sheets.

35. The CBI report dated 05.02.2024 notes the mismatch between the OMR sheet

evaluation and the marks as recorded by WBSSC. The CBI report also refers

to the email exchange between the staff of M/s. Nysa regarding the increase

of marks for specific candidates and the manipulation of data. The email

correspondence also shows that as a reward for the manipulation in the OMR

score, some other works were awarded to M/s. Indi Info Systems Private

Limited, Noida, a company founded by Mr. Niladri Das, who was previously

associated with M/s. Nysa. The report suggests a connection between the

awarding of this work and the manipulation of the examination results.

39 Para. 16, CBI Report dated 05.02.2024.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 34 of 41

36. Apart from WBSSC not retaining mirror copies of the scanned OMR sheets,

other questions arise. In particular are the significant discrepancies between

the marks in WBSSC’s computer software and the data found on the three

hard disks recovered from Pankaj Bansal’s office in Noida. Further, WBSSC

did not upload the marks of candidates while uploading the list of the

candidates called for interview or included in the panel/waitlist. Marks were

only displayed after the High Court vide order dated 12.05.2022 in WPA 8059

of 2022 mandated the disclosure of marks for each empanelled candidate. This

omission appears deliberate, likely intended to conceal the marks of

candidates on the waitlist, raising concerns about potential data manipulation.

It is also a known fact that some candidates who did not attempt a single

question were awarded marks and issued appointment letters.

37. It is also important to refer to another finding recorded in the impugned

judgment regarding a discrepancy in the recommendations made by WBSSC

and the number of appointment letters issued by the Board. The investigation

revealed the following disparities between the number of candidates

recommended for appointment by WBSSC and the number of appointment

letters issued by the Board:

Number of Number of Excess candidates appointment appointment Post Name recommended for letters issued by letters issued appointment by the Board by the Board WBSSC Assistant Teachers 11,425 12,946 1,071 for Classes IX and X Assistant Teachers of Classes XI and 5,557 5,756 199 XII Group C 2067 2483 416 Group D 3881 4550 669 Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 35 of 41 When confronted, the Board had proffered that all appointment letters

were issued on the recommendation of WBSSC. On the other hand, the

WBSSC contradicted the stance of the Board by stating that they had not

issued recommendations for the excess numbers mentioned by the Board.

WBSSC and the Board now claim that the discrepancy in the number of

appointment letters issued is incorrect. The Board counted all letters without

adjusting for candidates who did not join, while WBSSC excluded those

candidates from its recommendations. Therefore, there is no discrepancy for

teaching staff, and the small difference for non-teaching staff is irrelevant, as

many of these candidates are already on the tainted list for rank-jumping or

being out of panel. We reject this late attempt by WBSSC and the Board to

reconcile the figures, as the number of recommendations made by WBSSC is

independent of whether a candidate joined the post.

38. There is also a dichotomy in the positions 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. It is the

stand of the tainted candidates before us that the scanned copy of the OMR

sheets are not the ones which the candidates had filled up at the time of

examination. Thus, they cannot be persecuted and treated as tainted. On the

other hand, the untainted candidates claim that the scanned copies of the OMR

sheets are the original sheets which the candidates had filled up.

39. It is also submitted by the tainted candidates that the certificate under Section

65B of the Indian Evidence Act, 187240 is inadmissible and thus, the said data

40 Hereinafter, “Evidence Act”.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 36 of 41 is unreliable. In our opinion, the issues of authenticity of the data viz. the

mismatch between the datasets and the admissibility of the certificate under

Section 65B of the Evidence Act, need not be decided in these proceedings,

as it falls under the purview of the criminal court. However, suffice it to state

that the Evidence Act does not strictly apply to the proceedings in a Writ Court,

and the decision is rendered based on the evidence and material on record.

Further, the issue involved in the present case is different and one relating to

the purity and sanctity of the selection process. Therefore, the Court can rely

upon the contradictory pleas taken by the tainted and the untainted candidates.

In the given facts and circumstances, the failure of WBSSC to keep

scanned/mirror copies of the OMR sheets assumes great importance.

40. Further, it is clear that there is a discrepancy between the scanned OMR

sheets recovered from the three hard disks in Pankaj Bansal’s possession and

the marks recorded in WBSSC’s computer/records. This discrepancy has been

acknowledged and accepted by WBSSC.

41. The claim that the data on the three hard disks shows no interpolation and is

consistent with the data in M/s. Data Scantech Solutions' computers fails to

account for significant gaps and discrepancies. These issues, highlighted in

both the impugned judgment and our findings, clearly point to large-scale

manipulation and tampering with results, including rank-jumping,

discrepancies in marks, the issuance of appointment letters to candidates not

on the panel, and appointments made beyond the panel's validity period.

42. In spite of the factual background and the credible evidence indicating

irregularities, WBSSC initially did try and cover up the lapses and illegalities.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 37 of 41 The cover up itself has made the verification and ascertainment more difficult

or rather impossible given the scale of camouflage and dressing up done at

each stage. We are convinced that the entire selection process was

intentionally compromised due to the illegalities involved.

DELAY, LACHES AND NATURAL JUSTICE

43. WBSSC and the candidates have raised pleas of estoppel, delay, and laches

in filing the writ petitions. In our view, the impugned judgment correctly

dismisses these pleas, relying on this Court’s judgment in Chennai

Metropolitan Water Supply and Sewarage Board and Others v. T.T Murali

Babu.41 The judgment distinguishes between acquiescence, delay and laches,

noting that they have distinct characteristics, though the underlying principle

remains one of estoppel. Laches refers to remissness or slackness, involving

unreasonable delay or negligence in seeking equitable relief, which prejudices

the other party. It arises from the neglect of a party to assert their right, thereby

preventing them from obtaining relief. In our opinion, this bar does not apply

here, as the fraud and illegalities were only uncovered in 2021 and 2022.

Applying the defence of laches, which is not a statutory bar, would be contrary

to equity and justice in these circumstances. The principle of acquiescence

also does not apply, as it assumes knowledge of the act, followed by passive

acceptance. Therefore, it introduces a new implied defence that does not fit

the facts of this case. Delay, as a general principle, encompasses both laches

and acquiescence, and delay is always fact-specific. In this case, where fraud

was concealed, as well as a cover up was practised, these principles cannot

be applied.

41 (2014) 4 SCC 108.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 38 of 41

44. We have already partially addressed the plea of failure to adhere to the

principles of natural justice while examining the applicable case law. It is also

important to emphasize that, in this case, public notices were issued, and the

candidates/applicants/petitioners were afforded the opportunity to inspect the

data and present their arguments. In light of the facts of this case, we are of

the opinion that the principles of natural justice cannot be invoked to validate

the fraud that has occurred. These principles are not rigid or inflexible; rather,

they must be applied with due regard to the specific facts and circumstances

at hand.

CONCLUSION

45. The last question relates to the relief and whether it requires any modification.

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.

46. For candidates not specifically found to be tainted, the entire selection 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. Furthermore, no candidate

can be appointed once the entire examination process and results have been

declared void.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 39 of 41

47. Some of the appointed candidates who do not fall within the category of tainted

candidates may have previously worked in different departments of the State

Government or with autonomous bodies, etc. In such cases, although their

appointments are cancelled, these candidates will have the right to apply to

their previous departments or autonomous bodies to continue in service with

those entities. These applications must be processed by the respective

government departments or bodies within three months, and the candidates

will be allowed to resume their positions. Further, the period between the

termination of their previous appointment and their rejoining will not be

considered a break in service. Their seniority and other entitlements will be

preserved, and they will be eligible for increments. However, for the period they

were employed under the disputed appointment, no wages will be paid by the

State Government or autonomous bodies. Further, if required and necessary,

supernumerary posts may be created for persons appointed in the

interregnum.

48. Lastly, we address the case of disabled candidates. Our attention has been

drawn to one such case where the impugned judgment held that the appointee,

Ms. Soma Das, shall be allowed to continue on humanitarian grounds. While

we will not interfere with this finding, we make it clear that other differently-

abled candidates will not be entitled to the same benefit, as it would contradict

legal principles and the rule of law. However, in consideration of their disability,

these candidates will be permitted to continue and will receive wages until the

fresh selection process and appointments are completed.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 40 of 41

49. The disabled candidates mentioned in the previous paragraph will be allowed

to participate in the fresh selection process, if required, with age relaxation and

other concessions. Similarly, other candidates who are not specifically tainted

will also be eligible to participate, with appropriate age relaxation. In our

opinion, such a direction would be fair and just, as it would allow these

candidates to take part in the fresh selection process, which should now be

initiated to fill the vacancies.

50. Our observations and findings would not influence the criminal proceedings.

51. Accordingly, we uphold the impugned judgment cancelling en bloc / entire

selection process but have made certain modifications in the directions issued

by the High Court. The appeals are disposed of in aforesaid terms.

52. We, however, will independently take up the issue raised in the appeal(s) filed

by the State of West Bengal with regard to the direction of investigation by the

CBI on the decision taken to create supernumerary posts. The Special Leave

Petition(s) to this extent will be listed for hearing on 08.04.2025.

53. All pending applications, including impleadment applications, also stand

disposed of. No order as to costs.

......................................CJI.

(SANJIV KHANNA)

…......................................J. (SANJAY KUMAR)

NEW DELHI;

APRIL 03, 2025.

Civil Appeal a/o. SLP (C) No. 9586 of 2024 & Ors. Page 41 of 41