Tanmoy Sinha & Ors vs Babita Sarkar & Ors
2023 Latest Caselaw 4314 Cal

 19.07.2023
SL No.18 wt 181
 Court No.8
  (gc/sg)


                      MAT 1302 of 2023
                       CAN 1 of 2023

                    Tanmoy Sinha & Ors.
                            Vs.
                    Babita Sarkar & Ors.

                             With

                      MAT 1304 of 2023
                       CAN 1 of 2023
                       CAN 2 of 2023

                   Supratim Manna & Ors.
                            Vs.
                    Babita Sarkar & Ors.

                  Mr. Jaydip Kar, Sr. Adv.,
                  Mr. Anindya Lahiri,
                  Mr. Puspal Chakraborty,
                  Mr. Prisanka Ganguly
                                           ...for the Appellants
                                         in MAT 1302 of 2023.
                  Mr. Biswaroop Bhattacharya,
                  Mr. Anindya Bose,
                  Mr. S. Alam,
                  Mr. Diptendu Mandal,
                  Mr. Mridul Biswas,
                                           ...for the Appellants
                                         in MAT 1304 of 2023.
                  Mr. Bikash Ranjan Bhattacharya, Sr. Adv.,
                  Mr. Firdous Samim,
                  Ms. Gopa Biswas,
                  Ms. Mousumi Hazra,
                  Ms. Payel Shome,
                  Ms. Sampriti Saha,
                         ...for the Respondents/Writ Petitioners.

Mrs. Koyeli Bhattacharyya, ...for the W.B.B.S.E.

Dr. Sutanu Kumar Patra, Ms. Supriya Dubey ...for the W.B.C.S.S.C.

Mr. Billwadal Bhattacharyya, Ld. D.S.G.I., Mr. Arijit Majumder, ...for the C.B.I.

Mr. Dhiraj Trivedi, Ld. D.S.G.I, Mr. Samrat Goswami, ...for the E.D.

Mr. Bhaskar Prasad Vaisya, A.G.P.

...for the State.

In view of commonality of the issues, MAT

1302 of 2023 and MAT 1304 of 2023 are taken up

together along with connected applications and

disposed of by this common order.

The applicants in both the appeals were

appointed as teachers in Class XI and XII after being

successful in SLST held on 4th December, 2016.

The appellants are aggrieved by an order

passed by the learned Single Judge on 7th July,

2023 directing the Commission to publish the

following:-

i) The list of 907 candidates' names in

respect of whom manipulations have

been found in hard disc and server

data, their father's name, school name,

actual marks, marks in SSC server,

difference of marks between actual

marks and enhanced marks, i.e., marks

given by West Bengal Central School

Service Commission, for Higher

Secondary classes.

ii) OMR sheets of all 5500 candidates who

have been given appointment in schools

having Higher Secondary classes after

getting recommendations from West

Bengal Central School Service

Commission.

iii) 39 candidates' names who got

recommendation after expiry of panel,

their father's name, school name, actual

marks and enhanced marks, difference

of marks between actual marks and

enhanced marks, i.e., marks given by

West Bengal Central School Service

Commission."

The applicants have submitted that in the list

going to be published by the Commission, in the

event, their names appear it would cause grave

prejudice to their reputation. The exercise

undertaken by the learned Single Judge was in

violation of the principles of natural justice.

Mr. Jaydip Kar, learned Senior Counsel

assisted by Mr. Anindya Lahiri appearing for

appellants in MAT 1302 of 2023 and Mr. Biswaroop

Bhattacharya, learned Counsel appearing for the

appellants in MAT 1304 of 2023 have argued that

the direction passed by the learned Single Judge

was without jurisdiction as the directions were

passed in a disposed of writ petition. It is submitted

that Babita Sarkar filed the writ petition and the

said writ petition was disposed of on 16th May,

2023. It is submitted that Paragraph 11 being the

operative portion of the judgment would clearly

show that the writ petition was disposed of on that

date itself. Attention of the Court is drawn to the

case details uploaded in the website of the Calcutta

High Court to show that the case status of the said

writ petition was shown by NIC as "Case Disposed

of" on 16th May, 2023.

It is submitted that the applicants would

suffer serious consequences in the event the names

of the applicants are published in terms of the order

dated 7th July, 2023. It is likely to tarnish their

image and reputation. They have participated in a

selection process and after being successful in the

said selection process they were appointed. It is

submitted that the judicial discipline and decorum

requires that the publication as directed by the

learned Single Judge should be postponed till the

Special Leave Petition filed by Group-C and D

employees recruited through 3rd RLST, 2016 and

Teaching Staff recruited through 1st SLST in respect

of Class-XI and Class-XII are decided.

It is submitted that the applicants are

seriously disputing the authenticity of the hard

discs which form the basis of the data being

obtained, collated and published by the WBCSSC.

In any event, it is submitted that no order could

have been passed for publication without hearing

the applicants.

Mr. Kar has submitted that a writ petition is

maintainable on the basis of an apprehension as

laid down in The Statesman Ltd. & Ors. Vs. The

Fact Finding Committee & Ors. reported at 1974

SCC OnLine Cal 45: AIR 1975 Cal 14. Mr. Kar

has further argued that having regard to the fact

that the Hon'ble Supreme Court has fixed the

matter concerning teaching and non-teaching staff

where similar issues are involved, the direction

passed by the learned Single Judge is required to be

stayed.

Mr. Biswaroop Bhattacharya, learned Counsel

in supplementing the argument made by Mr. Kar

has submitted that in Ground No.13 in the S.L.P, it

has been specifically stated that there has been no

occasion for the petitioners to either admit or deny

the purported copies of the OMR sheets relied upon

by the Commission and in Ground No.14, it has

been stated that admission and/or denial of the

purported OMR sheets by the petitioners would be

self-incriminating under Article 20(3) of the

Constitution of India. Mr. Bhattacharya has

submitted that in the original writ petition there is

no prayer for any declaration that the selection of all

the candidates was manipulated and held to be

illegal. In entertaining prayers made orally is

contrary to the established principles of law and the

scope of the writ petition cannot be expanded to

cover issues not raised and pleaded. It is submitted

no relief could be granted unless there are

foundational pleadings. It is submitted that the writ

petition was dismissed on ascertaining that her

entry to the service was by illegal means. There is no

such findings against the present applicants. Still

an exercise has been made in the disposed of writ

petition to reopen the entire selection process.

Mr. Bikash Ranjan Bhattacharya, learned

Senior Counsel appearing on behalf of Babita

Sarkar submits that although the writ petitioner

was found to be ineligible and may be a victim of a

fraud but that by itself would not prevent or fetter

the hands of the constitutional Court in not making

an endeavour to unearth the truth. It is submitted

that when the fraud is of such grave and egregious

nature and involves public employment and public

exchequer, it is in the interest of public that the full

facts must come and the rightful claimants

ultimately could get their job.

Mr. Bhattacharya disputes that the writ

petition was not disposed of. It is submitted that the

order passed in the writ petition would show that

the writ petition was kept pending in order to

unearth the real truth.

Dr. Sutanu Kumar Patra, learned Counsel

appearing on behalf of the W.B.C.S.S.C submits

that the Commission upon comparing the data

obtained from the hard disc shared by the C.B.I

with the data base maintained by the Commission,

manipulation of the record could not be ruled out

and this has been the stand of the Commission

throughout.

Mr. Billwadal Bhattacharyya, learned D.S.G.I.

representing the C.B.I. has submitted that the NIC

status shown in the website is not in consonance

with the order passed by the learned Single Judge

as the bare perusal of the order would show that the

writ petition was kept pending. There is no mention

in the order that the writ petition was finally

disposed of by the learned Single Judge. It is

further submitted that the data shared by the C.B.I.

with the W.B.C.S.S.C would establish a chain of

events which directly implicate persons involved in

the manipulation of the record.

Mr. Bhattacharyya has drawn our attention to

the observation made by the Coordinate Bench

presided over by Justice Subrata Talukdar (since

retired) in which it was observed that the

Commission is not devoid of jurisdiction to take

steps in process of identifying the source and nature

of the misrepresentation attached to the recruitment

process in terms of Rule 18(5)(d) of the 2009 Rules.

Similarly, the requirement of proof under Section

65-B of the Evidence Act, having regard to the

particular nature of proceedings, is a requirement

which can be satisfied at an appropriate stage and

is not fatal but curable.

Mr. Dhiraj Trivedi, learned D.S.G.I, appearing

on behalf of the E.D. adopts the submission made

by Mr. Billwadal Bhattacharyya.

The first issue required to be decided is the

locus of the applicants to challenge the order passed

by the learned Single Judge.

Having regard to the sequence of events

unfurled over a period of time and having regard to

the fact that in the event the names of the

applicants appear in the list they would be in the

same footing as that of the appellants in the Special

Leave Petitions and any order passed upon the list

being published disclosing their names would

adversely affect their valuable right. On such

consideration we feel that the present appellants

can harbour a genuine apprehension about adverse

consequences and before the die is cast they are

required to be heard. The appellant is likely to

suffer in the event any order is passed consequent

upon the publication in their absence.

Mr. Bikash Ranjan Bhattacharya, learned

Senior Counsel true to the tradition of the Bar has

fairly submitted that the applicants are required to

be heard if any adverse order is passed or proposed

to be passed against them in the pending

proceeding.

Accordingly, the application for leave to

appeal is allowed.

The next question is the relief to which the

appellants are entitled to at this stage.

We have been informed that transfer petitions

have been filed before the Hon'ble Supreme Court by

Soumen Nayak and another being Transfer Petition

(Civil) Nos.1260-1269/2023 in which an order was

passed on 18th July, 2023 directing the transfer

petition to be listed on 25th July, 2016.

The transfer petition presupposes the

pendency of a writ petition.

However, having regard to the nature of the

controversy and that the public employment is

concerned, it is the duty of the constitutional Court

to make an endeavour that public authorities follow

transparency in conducting their affairs. Even the

Writ Court in appropriate cases can exercise

continuing mandamus to implement its order. It,

however, depends upon the nature of the proceeding

and the reliefs claimed in such proceeding. In the

instant case, we cannot ignore the fact that there is

strong evidence of manipulation. The present

applicants may be innocent or a victim of the

circumstances with which we are not presently

concerned but they are entitled to know whether

they figure in the list prepared by the Commission

based on the information supplied by the C.B.I and

upon verification by WBCSSC. While we may not

prevent the Commission to upload the list but until

the petitioners are being heard by the Court, no

coercive action could be taken against the

applicant/applicants. It appears that in similar

circumstances, the teachers who had approached

the Hon'ble Supreme Court are presently enjoying

an order by which their services have been protected

and secured as the letters of termination are kept in

abeyance. In the fitness of thing and considering the

nature of the issues involved in the SLP we are of

the view that in the event the name of the present

petitioners are published, their service shall not be

disturbed till the SLPs are decided.

In view thereof we dispose of the appeals and

the applications by restraining the respondents from

terminating the service of the applicants/appellants

in the event of their names being published till

similar issues are decided in the pending special

leave petitions.

Moreover we take note of the fact that the

transfer petitions are likely to be listed on 25th July,

2023.

On the prayer of Dr. Patra, the time to publish

the names and other details in terms of the direction

of the learned Single Judge is extended by one week

from date. The said direction is peremptory.

On the oral prayer of Mr. Anindya Lahiri and

Mr. Biswaroop Bhattacharya, C.B.I. and E.D are

added as party respondents. Copies of the said

applications have already been served upon Mr.

Arijit Majumder, learned Advocate-on-record

representing the C.B.I and Mr. Samrat Goswami,

learned Advocate-on-record representing the E.D. in

Court today.

Since no affidavits have been called for from

the parties, all allegations are deemed to have been

denied.

Accordingly, both the appeals and the

connected applications stand disposed of.

However, there shall be no order as to costs.

Urgent Photostat certified copies of this order,

if applied for, be given to the parties on usual

undertaking.

(Uday Kumar, J.)                      (Soumen Sen, J.)