Service Commission & Ors vs Sandeep Prasad & Ors
2022 Latest Caselaw 7791 Cal

24.11.2022
Court No.32
rpan/SL-1&2
                                MAT 1852 of 2022
                                         +
                                IA No: CAN 1 of 2022

                            West Bengal Central School
                            Service Commission & Ors.
                                        Vs.
                              Sandeep Prasad & Ors.

                                         With

                                 MAT 1853 of 2022
                                         +
                                IA No: CAN 1 of 2022

                               State of West Bengal
                                        Vs.
                               Sandeep Prasad & Ors.


              Mr. Kalyan Bandyapadhyay,
              Dr. Sutanu Patra
              Mr. Suman Sengupta
              Mr. Dip Jyoti Chakraborty
              Mr. Rahul Kr. Singh
                           ... for the Appellants
                         (in MAT 1852 of 2022).
              Mr. S.N. Mookherjee, Ld. AG
              Mr. Anirban Ray, Ld. GP
              Mr. Sirsanya Bandapadhyay, Ld. Jr. Standing Counsel
              Mr. Arka Kumar Nag
                           ... for the Appellant/State
                               (in MAT 1853 of 2022).
              Mr. Bikash Ranjan Bhattacharya, Mr. Sudipta Dasgupta
              Mr. Bikram Banerjee
              Ms. Dipa Acharyya
              Mr. Arka Nandi
              Mr. Sutirtha Nayak
                         ... for the Writ Petitioners.

              Ms. Koyeli Bhattacharyya
                          ... for WBBSE.

              Mr. Billwadal Bhattacharyya,
                                 Ld. Deputy Solicitor General of India
              Mr. Arijit Majumder
                           ... for the CBI.
                               2




        The present appeals being MAT 1852 of 2022 and

MAT 1853 of 2022 have been preferred challenging an

order dated 23rd November, 2022 (at 3.00 p.m.) passed by

the learned Court in the writ petition being WPA 12266 of

2021. Both the appeals are taken up for hearing together

since the same order is under challenge in the said

appeals.

        Mr.   Bandyapadhyay,      learned   senior    advocate

appearing for the appellants in MAT 1852 of 2022 and

Mr. Mookherjee, learned Advocate General appearing for

the State/appellants in MAT 1853 of 2022 at the

inception submit that inadvertently the names of the

added    respondents   in   the    writ   petition   were   not

incorporated in the cause titles of the memorandum of

appeals and they pray for inclusion of their names in the

cause titles. To that effect they have placed before this

Court lists of the said respondents. Such prayer for

correction has not been opposed by Mr. Bhattacharyya,

the learned senior advocate appearing for the writ

petitioners. In view thereof, the learned advocates-on-

record of the appellants in both the appeals are granted

leave to incorporate the list of names in the cause titles of

the memorandum of appeals as well as the stay

applications.

In view of the order that is to be passed in the

present appeal, service of copies of the stay applications

upon the added respondents is dispensed with.

Mr. Bandyapadhyay submits that in the writ

petition on 23rd November, 2022 an order was passed in

the morning which is annexed at pages 142-145 of the

stay application. Subsequent thereto, the impugned order

was passed after recess at about 3.00 p.m. Drawing our

attention to the order impugned, he submits that before

arriving at any finding as regards commission of any

cognizable offence, the learned Court directed the CBI to

start investigation in connection with the cases already

registered in the matter. Such direction was issued

without coming to any conclusion that the materials

before the Court were sufficient to direct an investigation

by the CBI. Such extraordinary power directing CBI to

conduct an investigation needs to be exercised very

sparingly, cautiously and in exceptional situation. In

support of such contention Mr. Bandyapadhyay has

placed reliance upon the judgements delivered in the

cases of State of West Bengal and others Vs. Committee for

Protection of Democratic Rights, West Bengal and others,

reported in (2010)3 SCC 571, Secretary, Minor Irrigation &

Rural Engineering Services, U.P. and others Vs. Sahngoo

Ram Arya and another, reported in (2002)5 SCC 521 and

H.N. Rishbud and Inder Singh Vs. State of Delhi, reported

in AIR 1955 SC 196.

Drawing our attention to an application, being CAN

6 of 2022 filed by the West Bengal Central School Service

Commission (hereinafter referred to as the Commission),

Mr. Bandyapadhyay submits that the averments in

paragraph 6 of the said application only speak of a

proposal. There might have been administrative laches in

filing such application. Mere filing of the same cannot be

construed to be offence, moreso when the Chairman of

the Commission being personally present before the Court

made a categoric statement that he wants to take

responsibility of such application and wants to withdraw

the same. However, the learned Court rejected such

prayer and went on to direct CBI investigation.

He strenuously argues that the investigation

directed could not have been tagged with some other

investigation which is continuing. Such direction could

have been issued only after coming to a categoric finding

that a cognizable offence has been committed. In view

thereof, the direction towards CBI investigation is not

sustainable in law.

Mr. Bandyapadhyay further argues that on behalf

of the State Government a memorandum dated 19 th May,

2022 was issued towards creation of 6861 supernumerary

posts of teaching and non-teaching staff. He informs us

that the said memorandum has already been challenged

by a separate writ petition and the same is still pending.

In the application, the Commission made a prayer for

issuance of necessary direction on the basis of the

averments made in the said application. It was also

prayed that some alternative directions may also be

issued. The same was thus an innocuous one.

Surprisingly, the said application was termed as a

'Benami application'. No reason has been disclosed as to

why such nomenclature was used.

Drawing our attention to the contents of the order

impugned, Mr. Bandyapadhyay argues that the Court

arrived at a definite conclusion as regards the alleged

guilt and that too without granting appropriate

opportunity of hearing. The same has been passed on the

basis of extraneous consideration. In such circumstances,

the order impugned is not sustainable in law.

Mr. Mookherjee, learned Advocate General

appearing on behalf of the appellants in MAT 1853 of

2022 argues that the directions contained in the order

impugned are beyond the pleadings made in the

application, being CAN 6 of 2022. In the application there

was no allegation against any party. It was filed

forwarding a proposal. There is no criminality in such

action and no cognizable offence has been committed. As

such the learned Judge erred in law in directing a fresh

investigation by the CBI.

Drawing our attention to the contents of the order

dated 23rd November, 2022 passed before recess, Mr.

Mookherjee submits that a proposal was placed before the

Court through the said application. The Chairman of the

Commission personally appeared and categorically stated

that the Commission wants to withdraw the application

and does not want to press the same. No reason is

forthcoming as to why such prayer was refused. On the

contrary only since the proposal was given, the learned

Judge directed a CBI investigation. A judicial order

directing investigation against a body can be passed only

after grant of an opportunity of hearing. From the

materials on record in cannot be inferred that any

cognizable offence had been committed. In view thereof,

the impugned direction upon CBI to conduct an

investigation is not sustainable and there was also no

necessity to direct the Principal Secretary to be personally

present. In support of his argument, Mr. Mookherjee has

placed reliance upon the judgments delivered in the cases

of State of Punjab Vs. Davinder Pal Singh Bhullar and

others, reported in (2011) 14 SCC 770 and Noor Bux Kazi

and others Vs. The Empress, reported in ILR 6 (Cal) 279.

Per contra, Mr. Bhattacharyya, learned senior

advocate appearing for the writ petitioners submits that

all the arguments as advanced by Mr. Bandyapadhyay

and by Mr. Mookherjee today were also advanced before a

coordinate Bench of this Court when several appeals

against orders passed by the learned Court in the present

writ petition. Drawing our attention to paragraph 60 of

the judgment delivered by the coordinate Bench on 18 th

May, 2022, Mr. Bhattacharyya submits that the Hon'ble

Court while disposing of the appeals inter alia observed

that:

'(60) For the above reasons this Court holds as follows :-

A. The Reports of the Bag Committee are prima facie accepted and be now placed before the Hon'ble Single Bench.

B. The orders impugned of the Hon'ble Single Bench require no intervention.

C. The Hon'ble Single Bench shall be entitled to direct investigation and collection of further facts, including any money trail, as considered necessary.

D. The Hon'ble Single Bench will extend the opportunity to be heard to the appellants at a stage, at a time and on factors considered appropriate.'

In view of the directions passed in the earlier

appeals, the learned Court had the jurisdiction to direct

CBI to start investigation in connection with the cases

already registered. Such direction does not suffer from

any jurisdictional error.

Mr. Bhattacharyya further argues that by the order

impugned in the present appeals the Court ultimately

directed the CBI to file a report as to the origin of the

instruction or the decision for filing of such application

within a period seven days. The State respondents have

not been prejudiced in any manner by the directions as

issued. The Principal Secretary to the Government of West

Bengal was asked to appear personally before the Court

to give reply to some questions to be put by the Court.

Mr. Bhattacharyya informs this Court that three

other applications containing identical averments, as

pleaded in the present application, being CAN 6 of 2022

were filed by the Commission in different writ petition.

Drawing the attention of this Court to the contents

of the said application being CAN 6 of 2022, Mr.

Bhattacharyya submits that the sequence of averments

made in paragraphs 4, 5, 6 and 7 as well as the prayer

would reveal that there was an attempt on the part of the

Commission to legalize, illegal appointments which were

granted earlier and to espouse the cause of illegal

appointees.

He further submits that the State itself would be

benefited in the event there is a disclosure of the actual

facts and as such the Principal Secretary was directed to

appear before the Court to give reply to some questions

which may be asked by the Court.

In the judgment dated 18th May, 2022, it was inter

alia directed that 'the Hon'ble Single Bench shall be

entitled to direct investigation and collection of further

facts, including any money trail, as considered necessary'.

In view of such direction passed in the earlier appeals, the

learned Court had the jurisdiction to direct CBI to start

investigation in connection with the cases already

registered.

In paragraph 5 of the application being CAN 6 of

2022 it has been stated that 'the candidates who have

been appointed, having been employed for the last 2 to 4

years and no complaints have been made against any of

them in the performance of their duties'. In the following

paragraph being paragraph no.6 it has, inter alia, being

stated that 'supernumerary posts be also created to

accommodate those whose appointments are subsequently

found to be invalid' and that 'such proposal will result in

no loss of jobs and enable such appointees to have means

of livelihood'. Following such averments it was, inter alia,

prayed that 'appropriate directions be given as stated in

paragraph 6 above, on such terms and conditions as this

Hon'ble Court may deem fit and proper'.

The said application was filed on 27 th September,

2022 subsequent to issuance of the government memo

dated 19th May, 2022 by which 6861 supernumerary

posts teaching and non-teaching staff were created for

absorbing the waitlisted candidates in the supernumerary

posts so created as per approval of the State Cabinet. In

the said memo there was no direction towards

accommodation of any illegal appointees. It is surprising

as to how the Commission proposed that such

supernumerary posts needs to be filled up by those

candidates, whose appointments were found to be invalid.

Furthermore, through the said application the

Commission prayed that appropriate directions be given

as stated in paragraph 6 of the application.

The contents of the order need to be considered

together and not in isolation. As admittedly CBI

investigation is in progress in connection with the cases

already registered and as upon perusal of the files of the

Commission, the Court did not find that there was any

instruction to file such application, direction was issued

upon CBI to find out from where the application had

originated. It was also directed that the CBI should file a

report as to the origin of the instruction or the decision

for filing such an application.

We do not find any infirmity in the directions issued

and as such no interference is called for in the present

appeal.

The Court, it appears, had asked the Principal

Secretary to the Government of West Bengal, who is a

responsible officer, to appear before the Court and to

assist the Court. It is always the duty of a senior officer

of State to assist the Constitutional Court. Thus, it is

surprising that such innocuous direction has been

challenged by the State.

For the reasons as discussed above, we do not find

any infirmity in the order dated 23 rd November, 2022 (at

3.00 p.m.) impugned in the present appeals.

The appeals and the connected stay applications

are dismissed.

There shall, however, no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance of

all requisite formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)