West Bengal SSC scam: Why did Supreme Court refuse to order CBI probe against Mamata Banerjee cabinet?

 Supreme Court Sets Aside Calcutta HC Direction For CBI Investigation Into Govt Decision For Supernumerary Posts

The week, April 08, 2025 : The Supreme Court on Tuesday decided not to intervene in the creation of supernumerary posts in state-run and aided schools under the Mamata Banerjee-led West Bengal government. The court set aside the Calcutta High Court's order that had directed a CBI probe against the state cabinet over the matter.

A bench comprising Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar observed that necessary consultations were held prior to the creation of these additional posts, and that the Governor’s approval had also been obtained. Reportedly, the Chief Justice noted that allowing a central agency to investigate a decision taken by a state cabinet would go against the principles of the federal structure.

The apex court, however, made it clear that the CBI investigation into other aspects of the 2016 West Bengal School Service Commission (SSC) recruitment panel — which was cancelled last week — would continue.

In 2022, the state’s Education Department created nearly 6,000 supernumerary posts. These are temporary positions established to accommodate candidates eligible for regular posts that are currently unavailable. The decision was approved by the state cabinet, and a formal notification was issued. However, the move was challenged in the Calcutta High Court before a single bench headed by then-Justice Abhijit Gangopadhyay, who alleged that the posts had been created to regularize illegal appointments. He ordered a CBI probe against the state cabinet in connection with the issue.

On April 22 last year, a division bench of the Calcutta High Court upheld the single bench’s decision, ruling that the state’s action was inappropriate. The division bench further stated that the CBI could, if required, take cabinet members into custody for questioning. In response, the state government challenged this verdict in the Supreme Court. A bench led by then Chief Justice D.Y. Chandrachud had stayed the CBI probe against the cabinet regarding the creation of the supernumerary posts.

Last week, while ruling on the cancellation of over 25,500 appointments of teachers and non-teaching staff, the bench headed by CJI Khanna clarified that the issue of the CBI probe into the state cabinet would be dealt with separately.

This verdict comes as a relief for the ruling Trinamool Congress. Following last week’s decision that led to the mass cancellation of appointments, the state government faced heavy criticism from the opposition. With elections approaching next year, a CBI probe into the cabinet — or possible arrests — could have further weakened the position of the Mamata Banerjee-led administration.

Live Law:  The Supreme Court today (April 8) set aside the Calcutta High Court's direction for CBI investigation into the supernumerary posts created by the West Bengal Government during the pending challenge to the 2016 WB SSC Appointments in the High Court.

Notably, the Apex Court on April 3 had upheld the decision of the Calcutta High Court, which invalidated nearly 25000 teaching and non-teaching staff appointments made by the West Bengal School Selection Commission (SSC) in 2016. However, it had clarified that it would separately hear the Special Leave Petition filed by the State of West Bengal against the High Court's direction for CBI investigation into the supernumerary posts.

A supernumerary post is a temporary or additional position created to accommodate a candidate who, though may be entitled to hold a regular post, could not be accommodated due to the unavailability of such regular posts.

Today, the bench of CJI Sanjiv Khanna and Justice Sanjay Kumar considered the observations made in the High Court's order in paragraphs 257 and 265 where it was mentioned that the State Government had in fact passed a cabinet decision approved by the State Governor for the creation of supernumerary posts to accommodate the alleged illegal appointees.

The said cabinet decision was passed as an order dated May 19, 2022 while the challenge to the SSC appointments was pending before the High Court.

Key Reasons Why The HC Direction Was Set Aside :

(1) The bench noted that in the main writ petition before the High Court, no specific prayer was there to challenge the cabinet decision, consequent to which an order dated 19.5.2022 was issued by the State Govt after approval by the Governor, nor was there a prayer that the order be made the subject matter of the police bureau or CBI investigation.

(2) It also considered a government note dated 5.5.2022 which recorded that while powers under S.19 of the WB SSC Act 1997 were being issued in respect of wait-listed candidates, the same shall 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.

Notably, S.19 of the Act states that "In the discharge of its functions the Commission shall be guided by such directions as may be given to it by the State Government from time to time in conformity with the provisions of this Act."

(3) The Court observed that Articles 74(2) and 163(3) provide that any advice tendered by the Ministers/ Council of Ministers to the President/ Governor can not become a subject of inquiry in any Court.

The Court relying upon the above aspects, concluded :

"Having regard to aforsaid discussion we are of the view that the 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) which specifically state that the question whether any, and if so what, advise 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."

It was also clarified that the present observations are not detrimental to the other aspects that the CBI is investigating concerning the Teachers' Recruitment Scam.

"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 chargesheets filed by CBI in other aspects."

Sr Advocate Kapil Sibal appeared for the State of West Bengal and submitted that no appointments have been made of the wait-listed candidates subsequent to the cabinet decision.

The Counsel for the original writ petitioners before the High Court contended that the High Court observed that these supernumerary posts were created to protect the illegal appointees. It was added that the creation of supernumerary posts led to further vacancies.

Sr Advocate Maninder Singh appearing for Respondent no.1 - Baisakhi Bhattacharya argued that if a decision of the cabinet of ministers is based on some illegality, then such a decision would be a colourable exercise of power with complete absence of any bona fide. Thus, the constitutional immunity to cabinet decisions under S.163(3) will not come into play here.

Case Details : THE STATE OF WEST BENGAL Versus BAISHAKHI BHATTACHARYYA (CHATTERJEE) AND ORS.|  Case Number C.A. No. 004800 / 2025 Registered on 03-04-2025

SLP(C) No. 009586 - / 2024 Registered on 24-04-2024 (Verified On 26-04-2024)

CNR Number SCIN010188222024