SC sets aside Calcutta HC order for CBI probe into creation of supernumerary posts by state cabinet

PTI, NEW DELHI, APRIL 8, 2025  :  The Supreme Court on Tuesday set aside the Calcutta High Court order for a CBI investigation into the West Bengal cabinet's decision to create supernumerary posts in state-run and aided schools. A bench comprising Chief Justice Sanjiv Khanna and Justice Sanjay Kumar, however, made it clear that the probe into other aspects related to the appointment of 25,753 teachers and staffers in West Bengal's state-run and aided schools would continue.

A supernumerary post refers to a temporary position created to accommodate an employee who is entitled to a regular post that is currently unavailable.

"Having regard to the aforesaid discussion, we are of the view that the Calcutta High Court was not justified in referring the issue of creation of supernumerary posts to CBI. Pursuant to the cabinet decision, we take note of Articles 74(2) and 163(3) of the Constitution which specifically state that the question whether any, and if so what, advice was taken by the cabinet of ministers to aid and advise the governor shall not be inquired into in any court. The aforesaid direction is set aside," the bench said.

On the issue of a CBI probe into other aspects of the recruitment scam, the CJI said: “We clarify that our observations in this order are limited to the extent of direction to investigate the creation of supernumerary posts and not in any way reflect upon the investigation and charge sheets filed by CBI in other aspects."

The apex court on April 3 invalidated the appointment of 25,753 teachers and staffers and called the entire selection process "vitiated and tainted." While delivering the verdict, the bench had made it clear it would independently deal with the plea raised by the West Bengal government “with regard to the direction of investigation by the CBI on the decision taken to create supernumerary posts.” While setting aside the High Court’s direction for a CBI probe, the bench referred to constitutional schemes on cabinet decisions and said they couldn't be questioned in a court of law.

The bench took note of the observations made by the high court in its April 22, last year, judgment, where it said the state government passed a cabinet decision approved by the Governor for the creation of supernumerary posts to accommodate alleged illegal appointees. It also noted that this aspect was not challenged in the main petition pending in the High Court. The bench further considered a government note of May 5, 2022, which said that while powers under a provision of the West Bengal School Service Commission Act, 1997, were being issued with respect to wait-listed candidates, the same should be subject to the outcome of the pending litigation before the high court. At that time, it was not possible to find out the tainted candidates by a thorough examination, the bench noted.

Articles 74(2) and 163(3) of the Constitution, it noted, provide that any advice rendered by the council of ministers to the President or Governor couldn't be subjected to a court inquiry. On April 3, the bench upheld the Calcutta High Court verdict of April 22, 2024, annulling the appointments and said the tainted candidates should refund their “salaries/payments received.” The case stemmed from the alleged irregularities in the 2016 recruitment process conducted by the West Bengal SSC, in which 23 lakh candidates appeared for 24,640 posts, and a total of 25,753 appointment letters were issued. The apex court had called it a "systemic fraud."

Former West Bengal Education Minister Partha Chatterjee and Trinamool Congress MLAs Manik Bhattacharya and Jiban Krishna Saha are among the accused being probed in the recruitment scam.