Calcutta High Court (Appellete Side)
Gopinath Bhanja & Ors vs The State Of West Bengal & Ors on 8 February, 2023
Author: Biswajit Basu
Bench: Biswajit Basu
08.02.2023
(D/L-05)
Ct.-18
(Susanta)
W.P.A. 2967of 2023
Gopinath Bhanja & Ors.
-Vs-
The State of West Bengal & Ors.
Mr. Arunava Ghosh,
Mr. Anindya Lahiri,
Mr. Samrat Dey Paul,
.... For the Petitioners.
Mr. Sirasanya Bandyopadhyay,
Jr. Standing Counsel
Mr. Arka Kumar Nag,
.... For the State.
Dr. Sutanu Kumar Patra,
Ms. Supraiy Dubey,
.... For the S.S.C.
Mr. Billwadal Bhattacharyya, D.SGI
Mr. Arijit Majumdar,
.... For the C.B.I.
Affidavit-of-service filed on behalf of the
petitioners be kept with the record.
Mr. Anindya Lahiri led by Mr. Arunava Ghosh,
for the petitioners, submits that the deficit Court
Fees has already been put in.
The petitioners participated in the 1st State
Level Selection Test, 2016 for the recruitment in
the post of Assistant Teacher for Class IX and X.
A Co-ordinate Bench of this Court directed
investigation by the C.B.I into the allegation of
huge malpractices adopted in the said selection
process.
The said investigating agency, in course of
investigation retrieved the original OMR Sheets of
the candidates who participated in the said
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selection process from the Server of NYSA, an
agency engaged by the Commission for scanning
and evaluation of OMR sheets of the written
answer scripts of all the candidates pertaining to
the said selection test.
On recovery of the marks of the candidates
from the server of the Commission which was the
basis of the appointments, it was found that the
appointments were given by manipulating marks.
A Co-ordinate Bench passed a direction in
W.P.A 13700 of 2021 to upload the recovered OMR
sheets in the Website of the Commission and in
compliance of the said direction, the Commission
under a notice bearing Memo no.1729/L-
3718/CSSC/ESTT/2022 dated December 29,
2022 has uploaded the said retrieved OMR sheets,
names of such candidates with their respective roll
numbers in its Website.
The petitioners in the instant writ petition,
inter alia, have challenged the legality of the said
notice.
It appears from record that the investigating
agency has registered four Criminal Cases on the
commission of such offence.
The R.C. Case No. 0102022 A0003 under
Sections 120B, 420 of the Indian Penal Code, 1860
and Section 7 of Prevention of Corruption Act,
2018 dated April 7, 2022 relates to the selection
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process in which the petitioners participated. The
said case is pending before the designated Court.
Mr. Lahiri, learned advocate for the petitioners
submits that so long it is not proved in the
criminal proceeding that the OMR sheets recovered
by the investigating agency are manipulated, the
publication of the impugned notice infringes the
right of the petitioners guaranteed under Article 20
of the Constitution of India, besides since there is
no presumptive value of those retrieved OMR
sheets, no action can be taken on the basis of said
materials. He prays that the impugned notice be
recalled.
Dr. Patra, learned Counsel for the
Commission submits that the Commission after
thorough check, became sure that the uploaded
OMR sheets are manipulated, the instant writ
petition is a desperate attempt for the petitioners
to stall the process of removing the illegally
appointed candidates.
The petitioners are not claiming that the
OMR sheets uploaded in the Website of the
Commission against their names and roll numbers
are their OMR sheets, as according to Mr. Lahiri
such stand is self-incriminating, then obviously
question crops up, what is the cause of action for
the petitioners to get a declaration that the OMR
sheets published under the impugned notice are
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not conclusive and those are subject to proof upon
following due process of law.
The writ petition does not disclose any cause
of action for such declaration.
The civil consequence of the malpractices
adopted in the selection process, in which the
petitioners participated is recalling and/or
cancellation of the recommendations for
appointment of the undeserving candidates in
terms of the relevant rule, which has no nexus
with the penal consequence of such malpractices
as such the civil consequence cannot be detained
for the pendency of the criminal proceeding
initiated for the said malpractices. The petitioners
since are aiming to forestall the said civil
consequences till a decision in the criminal
proceeding is arrived at, they are not entitled to
the declaration as prayed for.
The writ petition, for the reasons discussed
above fails, consequently W.P.A. 2967 of 2023 is
dismissed without any order as to costs.
Since no affidavit-in-opposition has been
invited, the allegations made in the writ petition
are deemed to have been denied by respondents.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)