NEW DELHI: Supreme Court on Tuesday quashed the CBI probe ordered by Calcutta high court against those responsible for preparation of a note based on which the West Bengal cabinet had allowed creation of supernumerary posts for appointment of teachers in May 2022 and said attaching criminality to cabinet decisions would be devastating for the country’s federal structure.
“How can one attach criminality to a cabinet decision when no appointment has been made pursuant to the decision?” asked a bench of CJI Sanjiv Khanna and Justice Sanjay Kumar.
The CJI said, “How can a central investigating agency investigate a cabinet decision of a state? Will it not defeat the entire purpose behind federalism? There are clear provisions under Articles 74(2) and 163(3) which bar inquiry into any cabinet decision.”
SC: HC not justified in asking CBI to probe cabinet note preparation
The same bench on April 3 had quashed the recruitment of over 25,000 teachers and teaching staff to govt and aided schools, calling it “tainted beyond repair”.
It said the cabinet note clearly mentioned that certain appointments were made illegally by the WB Schools Services Commission, and it was clarified that the decision to create supernumerary posts for appointment of teachers was subject to the outcome of the litigation challenging the recruitment process, which was pending before the HC.
On May 19, 2022, based on the cabinet decision, and after approval from the governor, the state had issued a direction for creation of supernumerary posts. This was not challenged before the HC nor was a prayer made seeking probe by the police or CBI into the creation of supernumerary posts, the bench said.
“The May 5, 2022, note records that the power under Section 19 of the WB School Services Act, 1997, is being issued in respect of waitlisted candidates, but the same shall be subject to the outcome of the pending litigation before Calcutta HC.
The cabinet decision was taken at a time, which was accepted (by the governor), when there was pending litigation in the HC regarding the possibility of finding tainted candidates,” it said. The May 5 note mentioned the view expressed by WBSSC that there were wrongly appointed candidates because of various irregularities and nothing was hidden, it said. HC was not justified in directing CBI probe into the preparation of the cabinet note, the bench said and referred to Art 74(2) and 163(3), which specifically bar courts from inquiring into cabinet decisions advising the President/governor.
Senior advocates Maninder Singh, Bikas Ranjan Bhattacharyya and Rauf Rahim attempted to show, from the application filed by the state before Calcutta HC stating that supernumerary posts were created with the sole purpose of accommodating candidates who did not figure in either the merit or wait list. The bench said this argument was wrong as the cabinet note did not say this at all. It mentioned that the supernumerary posts would be subject to the outcome of litigation pending before the HC.
Singh said the decision was a colourable exercise of power and hence would not be protected by provisions of Art 74(2) and 163(3). But the bench disarmed him by asking whether the petitioner had made a prayer for police or CBI inquiry into the cabinet note? If it was not made, then it could not be raised for the first time before the SC, the bench said.
