Calcutta High Court (Appellete Side)
Santanu Sit & Ors vs The State Of West Bengal & Ors on 27 September, 2022
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
27.09.2022
Item No.1&2
Ct. No.17
S.A.
WPA 2005 of 2022
Santanu Sit & Ors.
-vs-
The State of West Bengal & Ors.
With
WPA 15010 of 2022
Rahul Chakraborty & Ors.
-vs-
The State of West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharya,Sr. Adv.
Mr. Dibyendu Chatterjee
Ms. Jhuma Chakraborty
Ms. Reshmi Ghosh
Ms. Piyali Paul
...for the petitioners
in WPA 2005 of 2022
Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
Mr. Sudipta Dasgupta
Mr. Arka Nandi
Ms. Dipa Acharyya
Mr. Sutirtha Nayek
...for the petitioners
in WPA 15010 of 2022
Mr. SupriyoChattopadhyay
Ms. Iti Dutta
...for the State
for both the matters
Mr. Saikat Banerjee
Mr. Ratul Biswas
Mr. Kaushik Chowdhury
...for the Board
for both the matters
Mr. Sauvik Nandy
...for NCTE
in WPA 2005 of 2022
By my order dated 09.09.2022 I directed the
West Bengal Board of Primary Education to file one
report in the form of an affidavit disclosing some dates
2
and facts. Today such a report in the form of an
affidavit has been filed by the said Board. From the
said report it is found that the decision of recycling all
OMR sheets were taken in the meeting of the West
Bengal Board of Primary Education on 03.04.2017.
When another matter (WPA 15010 of 2022) was
taken up along with this matter as the other matter
was a similar matter, a supplementary affidavit was
filed by the petitioner therein (in WPA 15010 of 2022)
wherefrom it appears that even after so called
recycling of the OMR sheets, a copy of one OMR sheet
was supplied to a candidate.
The report which has been filed today by the
Board does not show the mode of destruction or
recycling of OMR sheets and it never shows sending
the same to a paper mill. So, mode of destruction is
not here. In respect of the names of witness officials
of the Board before whom the OMR sheets were
destroyed, it is stated that there was no official
witness of the Board present when the OMR sheets
were put in bags and such bagging was done by the
confidential processors' staff and their other officials.
Therefore, the Board cannot say with responsibly that
it was the OMR sheets of TET 2014 which were
bagged for sending those to the paper mill. Even in
respect of how many OMR sheets were destroyed it
has been stated that approximately 12.95 lakhs OMR
3
sheets were scrapped; but it is not known when there
were 20 lakhs candidates in the TET (even if any OMR
sheet was destroyed/recycled at all) whose OMR
sheets was destroyed/recycled. In respect of the
question of real method of destruction of the OMR
sheet the confidential processor's report has been
quoted by the Board by saying that OMR sheets were
sent directly to the paper mill after those were bagged.
So the Board also does not know how it was destroyed
or recycled at all. It is clear from the report that there
was no floating of tender for destruction or recycling
of the OMR sheets. Therefore, the performance of the
Board in respect of, be it destruction, be it recycling,
of the OMR sheets is extremely casual, doubtful and
not according to the standard expected from a
statutory authority.
In course of the argument, Mr. Banerjee,
learned advocate for the Board has relied upon two
judgements. One reported in (2011) 8 SCC page 497
(CBSE vs. Aditya Banerjee) and he has relied upon
paragraphs 53 to 55 of the said judgement. In
paragraph 54 of the said judgement I have noticed
that Supreme Court held that if there were rules and
regulations of the public authority for destruction of
the answer scripts, then it can be destroyed in
accordance with the said rules and regulations.
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But in this matter, no rules or regulations of the
Board have been shown to me to substantiate that
following the said rules and regulations the OMR
sheets were destroyed/sent for recycling.
Mr. Banerjee has also relied upon one
judgement of our High Court in MAT 79 of 2016
(Biswajit Ghosh vs. The State of West Bengal &
Others) dated 11.03.2016 reported in 2016 SCC
online Cal 6889. In the said judgement, the Division
Bench of this court though followed the above case
decided by Supreme Court (CBSE vs. Aditya Banerjee)
and particularly referred to paragraphs 54 and 55
thereof but deviating from the law declared by the
Supreme Court the said Division Bench held that the
answer scripts could be destroyed otherwise also
which, in my view, is per incurium.
Learned advocate Mr. Bhattacharya has
submitted that this judgement of our High Court did
not at all deal with the issue presently before us and
the judgment never decided any of such issues and,
therefore, it was a judgement sub silentio.
Therefore, I cannot accept the submissions
made by Mr. Banerjee on behalf of the Board. Mr.
Banerjee also submitted based on page 90 of the writ
application being WPA 2005 of 2022 that the
petiontioners themselves wanted OMR sheets
(digitalised data). This submission is also not
5
accepted by this court as it is not stated in the order
that the petitioners wanted "OMR sheet's digitalised
data". The court held that the petitioners demanded
OMR sheets (digitalised data) which not only means
digitalised data but also the OMR sheets. However,
the petitioners of the other writ application being WPA
15010 of 2022 wanted copy of OMR sheets and not
digitalized data.
Mr. Bhattacharya, learned advocate for the
petitioners has relied upon one Supreme Court
judgement reported in (2012)6 SCC 596 (Punam Rani
vs. State of Haryana) to satisfy this court that the
OMR sheets in this particular case were required to be
preserved and there was no rules or regulations on
the basis of which those could be sent for recycling.
He also submitted that recycling does not mean
destruction.
Mr. Bhattacharya further submitted that in
Rule 12 of the West Bengal Primary School Teachers
Recruitment Rules, 2016 the validity of the panel was
for one year and it could be extended twice for six
months i.e. for further one year. But the Board did
not say anything that the panel would not be
extended and, therefore, destruction/recycling of the
OMR sheets have been done even before the statutory
period expired. In this regard Mr. Banerjee submitted
that when his client being the Board did not say
6
anything about the extension of the panel it is
required to be held that the panel was not to be
extended.
After hearing the parties I find that the report in
the form of affidavit filed on behalf of the Board
affirmed on 27.09.2022 shows tremendous
irresponsibility and a clear culpable intention and
criminal motive to show outwardly that the OMR
sheets were sent for recycling. Nobody knew whether
it were the OMR sheets which were
destroyed/recycled. That report on the basis of a
hand picked agency (no tender was called for this
purpose) is not at all acceptable to this court though
the name of the said agency has been given in the
said report. This hand picking of one particular
agency for recycling, according to the Board, of OMR
sheets raises a serious doubt in the mind of this court
as to the bona fide of the then officials of the Board
who took the decision in the meeting dated
03.04.2017, minutes whereof has been annexed to the
said report. In the report in the form of affidavit
affirmed by the Secretary of the Board it has been
made clear that the deponent (Secretary of the Board)
was not a member of the said ad hoc committee which
took the decision of recycling of the OMR sheets
through one hand picked agency.
7
After considering the entire situation as appears
from the report of the Board and from the
supplementary affidavit (affirmed on 20.09.2022) filed
in WPA 15010 of 2022 (vide pages 11 and 12) it is
found that even after so called recycling of all the
OMR sheets one OMR sheet was given to one
Hemanta Chakraborty by the Board through the
covering letter dated 10.07.2019 whereas the decision
for recycling the OMR sheets were taken in the
meeting dated 03.04.2017 and the purported bagging
process for recycling the OMR sheets were done in
December, 2017 to January, 2018. But nobody
knows for the Board whether in those bags the OMR
sheets were put or not or in the bag some other
papers were put for destruction/recycling.
In such view of the matter, I direct the Central
Bureau of Investigation (CBI) to start a case in respect
of this purported recycling of OMR sheets by the
earlier ad hoc committee of the West Bengal Board of
Primary Education whose President was one Mr.
Manik Bhattacharya and CBI should immediately
start interrogating Sri Bhattacharya and if he does not
cooperate, the said agency (CBI) shall have every
authority to take him in custody. CBI shall also
investigate in respect of the engagement of the agency
to whom such job was given and it has been
submitted from the Bar today that this agency does all
8
the work of the confidential section of the Board and it
is not known how this agency was handpicked by the
Board or its ad hoc committee. Therefore, all the
actions of this agency shall also come under the
scanner of CBI investigation.
I direct both the petitioners to supply
immediately the copies of the writ application and the
supplementary affidavit to the CBI in course of the
day and I direct Mr. Manik Bhattacharya to attend
CBI office today by 8 p.m.
The writ petitioners at the fag end of the hearing
has submitted that CBI is to be added as party
respondent in this matter. I direct them to add CBI as
party respondent in course of the day and hand over all the papers to the Regional Joint Director of CBI, Anti Corruption Branch in Kolkata in course of the day. CBI is given one month time to file a comprehensive report after investigating this matter (CBI shall have the power and authority to interrogate any person they find proper and if any such person non-co-operates with CBI, it can interrogate him after taking such person into custody) before this court on 1st November, 2022 when this matter will be taken up at 2 p.m. It is expected that the Joint Director will not engage any officer of CBI for investigating this matter 9 who failed to interrogate the persons in custody of CBI.
This court hopes and expects that CBI will perform its duty as is expected not only by this court but also a large number of citizens of this country.
(Abhijit Gangopadhyay, J.) Later.
I also direct the Registrar General of this Court to communicate that Mr. Manik Bhattacharya has to attend CBI office by 8 p.m. today through the Assistant Commissioner of Police, High Court, Calcutta who is supposed to know the address and phone number of Mr. Manik Bhattacharya as Mr. Bhattacharya is a member of the Legislative Assembly of West Bengal.
(Abhijit Gangopadhyay, J.)