The Supreme Court on Thursday questioned the West Bengal government why it had created supernumerary posts of teachers and non-teaching staffs instead of weeding out persons who were allegedly appointed illegally.

"Why did you create supernumerary posts? What was the purpose of creating that?" a bench comprising Chief Justice Sanjiv Khanna and Justice Sanjay Kumar asked the West Bengal counsel.

Senior advocate Rakesh Dwivedi, appearing for the West Bengal government, informed the bench about a report by committee appointed for a thorough investigation into the selection process.

The bench observed the committee's report and noted some irregularities.

Dwivedi argued the committee found some irregularities but not as extensive as the CBI's report.

"So, they found there were irregularities committed. So, in order to deal with that situation, instead of weeding out the persons who have been appointed illegally, you say, okay create supernumerary posts?" asked the bench.

"Mr Dwivedi, tell me one thing, if you find the irregularity committed, will you not throw them out first?" the CJI asked further.

Dwivedi said the order had specifically mentioned it was for the appointment from the wait-listed candidates.

"Correct. The reason is this, that you don't want to throw out the tainted candidates," the CJI said.

The apex court was hearing arguments on a batch of pleas challenging the Calcutta High Court's April 22 decision invalidating the appointment of 25,753 teachers and non-teaching staff in state-run and state-aided schools of West Bengal.

On May 7, the apex court stayed the high court's order over the appointments made by the state's School Service Commission (SSC). The top court, however, permitted the CBI to continue with its probe in the matter.

In its May 7 order, the apex court noted that on May 19, 2022, the state government issued an order creating 6,861 supernumerary posts of teachers and non-teaching staff for absorbing the wait-listed candidates.

The top court further noted it was directed that appointment letters to such wait-listed candidates should be issued in terms of the recommendation of the SSC subject to the outcome of the pending litigation before the high court.

During the hearing on Thursday, the bench asked, "Is the state of West Bengal supporting the proposition that it is not possible to segregate the tainted from the untainted?" Dwivedi however said the state was supporting the segregation.

He argued the division bench of the high court "went too far ahead" and passed a "blanket direction" that the CBI should investigate everybody and undertake custodial interrogation, if necessary.

The bench also wondered why the original OMR sheets were not available.

"The original paper is the OMR sheet. That is the primary evidence. If any manipulation is done on the main evidence or the main paper, it will be only visible in the OMR sheets," it said.

"The issue would be, because the originals are not available, so there is no way we can authenticate whether the original OMR sheets were identical to the scanned OMR sheets which are available on the server," the bench said.

The apex court asked the CBI's counsel whether the probe agency was able to ascertain the date on which the OMR data was captured.

"One thing is very strange that people who are not even recommended and who have not qualified... they were issued letters," the bench observed, "it was a very serious thing".

During the day-long hearing, the bench heard submissions from senior advocates Kapil Sibal, Abhishek Manu Singhvi, Shyam Divan, Jaideep Gupta, Sanjay Hegde and others.

The hearing would continue in January, 2025.

On May 7, the apex court had said the CBI's investigation, which was ordered by the high court, would continue but no coercive steps would be taken.

The top court, however, had made it clear that the teachers and non-teaching staff of the state, whose appointments were cancelled by the high court, will have to refund the salaries and other emoluments if their recruitment was found illegal.

Over 23 lakh candidates had appeared for the state level selection test-2016 for 24,640 vacant posts. A total of 25,753 appointment letters were issued against 24,640 vacancies.

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