Cancellation of 25,753 appointments made in teaching and non-teaching staff by West Bengal School Service Commission has justifiably evoked mixed feelings and reactions from the public at large including those who are directly affected by the order of cancellation passed on 22 April 2024 by the highest Court of the State of West Bengal. Many people in their anguish went as far as to charge that the court had dispensed injustice instead of justice.

The cause prompting the court in passing such a heart-breaking, drastic order has been a concerted ‘fraud’, deliberate and calculated commission of ‘illegalities’ and a scam for personal and/or political gains in the matter of those appointments perpetrated by diverse persons in league directly and indirectly with persons involved in the process of those appointments in the administration of school education in West Bengal including the Cabinet Ministers of the State. In the scam, recourse to nepotism, favouritism, manipulations and motivated destruction of primary documents were taken by those persons involved in the process of appointments. In paragraph 335 of its judgement the High Court has tabulated as many as seventeen illegalities, all established by evidence, including that recruitment rules were never adhered to at all as appointments were given to: (i) those who were not in the panel; (ii) those who submitted blank OMR (Optical Mark Recognition) sheets meant for evaluation of answers of the candidates; (iii) persons after the expiry of panel; (iv) persons who were lower in rank in preference to those who were higher in rank; (v) supernumerary posts were created with the approval of Cabinet Ministers to continue in service the illegal appointees although the ill-advised School Service Commission’s  application thereof was rejected by court, and (vi) more appointments were made than the declared vacancies in all the categories. In short Rule of Law as opposed to Rule of Man was trampled instead of being strictly obeyed and followed.

Rule of Law mandates absolute obedience to existing law in its letter and spirit even if such law, until changed, is found to be irrational because of either lapse of time or any change in circumstances. The facts unleashed by the trail of events unfortunately reveal that there were a good number of genuine candidates within the said total number of 25,753 candidates who were not actors or accomplices in the commission of either fraud or illegalities. But they became pathetic victims for no wrong of their own. Simply they became innocent victims of wrongs committed by others who by their designation or otherwise were responsible and duty-bound to protect their constitutional rights. In the absence of any enabling essential basic material for segregation between genuinely successful candidates within the said 25,753 candidates and candidates appointed illegally, the court delivering the judgement could not undertake any act of scavenging to rescue the genuinely successful candidates from the fateful disaster.

The High Court found that (i) the exact nature of candidates fraudulently given appointments could not be identified; (ii) exact number of persons benefiting from manipulation/illegalities in the selection process could not be identified in its entirety (Para – 329) and further that (iii) such identification has been made improbable given the stand of the School Service Commission, Secondary and Higher Secondary Board of Education and the State [Para – 331 (XV)] as OMR sheets were destroyed without the scanned mirror image being preserved. The criminal motivation for such destruction has become obvious by its result.

The subject order of cancellation is now under challenge before the highest Court of the land whose initial observations have been frightening for us, that there has been a systemic fraud when public jobs are so scarce and so valued that if the faith of the community in public employment  goes then nothing remains. And further that the Court could not be unmindful of the impact of setting aside employment of a large complement of assistant teachers who have been recruited for classes 9 and 10 and classes 11 and 12. The Apex Court has also observed that an issue which merits closer analysis is whether the appointments, which suffer from a taint, can be specifically segregated and if such an exercise were at all possible it would be unfair to set aside the entirety of the selection. The Apex Court therefore is now  unquestionably required to overcome all the hurdles identified by the impugned judgement to find out with exactitude the number of candidates  who had benefited from manipulation/illegalities. In simple words, the Apex Court is required to weed out the chaff from the corn if that is at all possible. The exercise now to be undertaken by the Apex Court is therefore simply one of scavenging.

The Apex Court is primarily saddled not exactly with any judicial work but with a work of physical/arithmetical segregation of the tainted from the untainted not only for the ends of justice but also for doing justice to those untainted. The scam which was the subject matter of final judicial scrutiny of the Division Bench of Calcutta High Court was initially unfolded by a Single Bench of the said court back in 2022 when over a period a number of persons including the education minister of the relevant time and head of School  Service Commission and others said to have been involved in the scam were taken into custody by the Central Bureau of Investigation (CBI) while investigating the said scam as per orders of the Single Bench. The prompt and bizarre reactions of the Chief Minister of the state to the said scam were two-fold. The first reaction was quite reasonable – that there should not be any media trial of the persons taken into custody but the second was most unreasonable and unlawful – that the Court may be pleased to permit the government instead of termination from services of those candidates who had been appointed illegally to absorb them in new posts to be created by the  government in excess of declared vacancies. In other words the malicious object of the second reaction was to let the status quo continue so that the result of the scam got sanctified. The School Service Commission accordingly also obeyed and acted promptly to make an application to the Court seeking such permission. In other words the administration involved in school education made an attempt to commit a second grievous wrong to make a right. The Single Bench however did not accede to the said prayer and instead directed a further CBI enquiry to find out the brains behind advising the commission of the second wrong. It has now transpired notwithstanding refusal by the court that the Cabinet Ministers in defiance had taken a decision to create supernumerary posts to absorb those who were unlawfully continuing in service being initially appointed illegally (Paras 257 and 235 (XVI) of the judgement of the Division Bench).

It is trite that conflicts of interest in society give rise to disputes and a good number of them need resolution by courts established by law whose primary duty is to adjudicate those disputes which may be broadly classified under four heads eg., (i) dispute between an individual and another individual; (ii) dispute between an individual and a group of individuals; (iii) dispute between a group of individuals and another group of individuals; and (iv) dispute between an individual or individuals and the State. In complex human relationships, there can also be a good number of variations within or outside of the said four categories. Of all the aforesaid four categories disputes brought to courts under Article 226 and 32 of the Constitution for violation of fundamental rights happen to be the largest in number indicating first that individuals, whether citizen or not, have become more conscious of their fundamental rights guaranteed under the constitution and any breach of any of those rights provokes them to move constitutional courts for redressal; and second, that the State through its agents including Ministers seems to have become willy-nilly more indulgent in causing such breaches. As a consequence the number of writ matters awaiting hearing and disposal are mounting day after day and the courts are hard pressed for time to decide them. The National Judicial Data Grid tells us of the staggering number of both civil cases and criminal cases awaiting hearing for disposal by the Supreme Court and High Courts. Just as an example it may be noted that in Calcutta High Court as on 21 May 2024 as many as 83,541 writ petitions were pending as against 63,421 civil cases whereas as on 19 May 2024 in Supreme Court as many as 63,935 civil cases (including writ petitions) and 17,161 criminal cases were pending. And India now has as many as 25 High Courts.

Matters arising out of breaches of fundamental rights always outnumber other civil cases. In such a background it is more sickening to know when it transpires that more often than not, breaches of fundamental rights are even caused by the State and its authorised agents by knowingly committing fraud and blatant illegalities for nursing their nepotism, favouritism and manipulation for personal gains, and/or political gains. And this seems to be exactly what has happened in the scam in respect of which the Division Bench has delivered its judgement expressing such utter dissatisfaction, disgust and sadness that the Hon’ble Bench could not even save or rescue those candidates who had no role to play in the scam. On a closer analysis, the scam facilitated employment of those who were not eligible for appointment depriving others those who were genuinely eligible for appointment. There happen to be now three categories of candidates within the said 25,753 as a result of the scam and they are: (i) those who were ineligible for appointment but were fraudulently and illegally appointed; (ii) those who were lawfully eligible but were denied appointments; (iii) those who were lawfully eligible for appointment and were in fact appointed. Although three categories of candidates constitute the total number of 25,753, how many belong to which category could not be identified or informed by the School Service Commission to the Division Bench compelling the Bench to deliver its judgement unhappily in utter despair.

The million-dollar question faced by the Apex Court is how to segregate, if at all possible, the aforesaid three categories to do complete justice. In the aforesaid background, a very fundamental judicial question justifiably emerges and that is: can the exercise expected to be undertaken by the Apex Court either on 16 July, 2024 when the matter has been fixed for hearing next or immediately thereafter to do justice with or without the help of the School Service Commission and others be justifiably and strictly characterised as ‘judicial’ exercise?

Constitutional courts are to judicially determine the cause of deprivation, if any, complained of on the basis of facts with the help of judicial interpretation of laws applicable to those facts. Does the proposed exercise strictly speaking seem to involve any such exercise? The exercise of segregation required to resolve the number of candidates rightly belonging to each of aforesaid three categories of candidates can hardly be said to be a judicial exercise of any Constitutional court and far less of the Apex Court. Nonetheless the Apex Court in its anguish has sought to undertake such an exercise of a scavenging operation and such work of scavenging has become necessary only because of inept, fraudulent and illegal activities of some of the executives including ministers  concerned of the State. In the annals of Indian judiciary in the post-independence period, the constitutional courts are being too often saddled with such exercises and more so in the recent period unjustifiably taxing the courts’ limited time for adjudication of genuine constitutional disputes requiring true judicial acumen and works of law. The subject scam reflects the more than poor quality of performance of members of the bureaucracy who have purposely deviated from the path of rule of law either for their personal gains or to please their masters for their personal and/or political gains abandoning the principles of fairness, equality, law and justice which all go together to constitute the cornerstone of any good democratic polity. To our dismay, according to the World Justice Report India ranks 79th out of 142 in the rule of law index.

India Justice Report (IJR), a think tank, has reported that excessive government litigation presently accounts for 50 per cent of court load. No state has its full complement of judges in High Courts. High Court vacancies average 30 per cent and can touch 50 per cent. The shortfall in judges is measured against sanctioned strength. The Law commission as early as in 1987 in its 120th Report recommended 50 judges per 10 lakh population but India almost four decades later has 15 judges per 10 lakh population. The Indian judiciary also has other shortfalls contributing to frighteningly delayed justice. The fallout of all these is delay in administration and dispensation of justice delivery to the people deprived of their constitutional and other legal rights. India justifiably needs an impartial, just and comprehensive analysis and evaluation of performance of functioning members of the bureaucracy to guide it not to saddle the judiciary with any such kind of scavenging. There is an adage that justice delayed is justice denied.

(The writer is Barrister-at-Law, Senior Advocate and former Advocate General of West Bengal.)