Calcutta High Court (Appellete Side)
Anirban Pal vs Punjab National Bank & Ors on 14 August, 2025
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE SUJOY PAUL
&
THE HON'BLE JUSTICE SMITA DAS DE
MAT 1380 OF 2024
ANIRBAN PAL
VS.
PUNJAB NATIONAL BANK & ORS.
WITH
MAT 1381 OF 2024
IA NO. CAN 2 OF 2024
PUNJAB NATIONAL BANK & ORS.
VS.
ANIRBAN PAL
Appearance:
For the Appellant : Mr. Srijib Chakraborty, Adv.
In MAT 1380/2024
& Ms. Rupsa Sreemani, Adv.
For the Respondent
in MAT 1381 of 2024
For the PNB : Mr. Saptansu Basu, Adv.
Ms. Parna Roy Choudhury, Adv.
Heard On : 11.08.2025
Judgment On : 14.08.2025
Sujoy Paul, J.:
The Challenge:
1. In these intra Court appeals, the petitioner and the Bank are at logger
heads on the legality, validity and propriety of the order passed by the
learned Single Judge in WPA 10195 of 2023 dated 20.06.2024 whereby
learned Single Judge held that the petition is filed with a delay of 3 years
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which extinguished petitioner’s challenge to the refusal of the Bank torestore his promotion to Scale-IV. The relief is declined to the petitioner
on yet another ground that after his reversion, he did not avail at least two
promotional chances from 2020 till the date of filing of writ petition. The
Bank is aggrieved by the portion of the order wherein certain findings are
given against the Bank and also because of imposition of cost of Rs. 3
lakhs and further direction to grant increment to the petitioner and hold
disciplinary proceedings against the officers of the Bank.
Brief facts:
2. To start the thread, the petitioner initially joined the respondent Bank in
October, 2005. The petitioner remained posted in Head Office, Delhi
between November, 2005 to January, 2008. The petitioner suffered a
motor accident sometime in the year 2015 and sustained serious injuries.
This resulted into disability of 70 per cent as per certificate issued by
appropriate authority. When petitioner met with the accident, he was
working as Scale-III officer and was posted in the United Bank of India,
Kolkata which is now known as Punjab National Bank.
3. In the year 2016, in the promotion process, the petitioner did not
participate with the fear of his transfer. However he noticed that his two
colleagues Anubhav Verma and Ajit Shribastava who were also suffering
from physical disabilities were promoted to Scale-IV post within Kolkata.
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4. Accordingly, petitioner participated in promotion process of Scale-IV
Grade and cleared it with flying colours. The result was declared in
October, 2018.
5. Upon promotion as Scale-IV officer, the petitioner was transferred to Zonal
office at Patna from Kolkata. The petitioner preferred representation on
8th October, 2018 pointing out his difficulty at Patna and highlighted his
personal and family problems. He laid emphasis that in absence of family
support, it is difficult for him with 70 per cent disability to perform his
duties and take care of himself at Patna.
6. The Bank by communication dated 15th October, 2018 declined the
request of the petitioner for retaining him in Kolkata. Then only petitioner
joined at Patna on 12th November, 2018.
7. The petitioner preferred another representation dated 24 th November,
2018 for his reposting at Kolkata because of difficulty being faced by him
while staying alone in Patna. The disgruntled petitioner also stated that
he may be reverted back to Scale-III and is ready to forgo his promotion.
8. Before preferring this representation dated 24 th November, 2018, the
petitioner preferred a complaint before Chief Commissioner of Persons
with Disabilities under the Rights of Persons with Disabilities Act,
2016 (hereinafter called ‘Disabilities Act’) against the action of the Bank
in not accommodating him in Kolkata after his promotion.
9. At the material time, the Bank had a policy/circular for accommodating
the persons with disabilities at the same place subject to the
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administrative exigencies. The petitioner’s case is based on Clause 16 and
17 of the said Transfer Policy dated 15.03.2015 (Annexure “P-2”).
10. By communication dated 6th December, 2018 the Authority under the
Disabilities Act issued interim direction and advised the Bank to consider
the claim of the petitioner and file a report. In the meantime, the
petitioner preferred representations seeking reversion. The third
representation was coincidently preferred on the same date i.e.
06.12.2018, the day when the Chief Commissioner directed to
consideration the claim of petitioner. The Bank first accepted the request
of the petitioner for reversion and accordingly passed the order dated
29.12.2018 whereby his request for reversion has been accepted by
making it clear that it is irrevocable and entails the debar for promotion
for a period of 2 years.
11. The instant writ petition was filed against the letter dated 30.05.2020
(Annexure “P-13”) whereby his request for restoration for promotion was
declined. Meaning thereby, petitioner’s claim that he be continued as
Scale-IV officer in Kolkata was rejected.
Contention of Petitioner:
12. Mr. Srijib Chakraborty, learned counsel for the petitioner submits that
the petitioner could not approach the Court by filing writ petition because
after his reversion the Covid era came which remained in force between
15.03.2020 to 28.02.2022. The Apex Court by a general order directed
that this period between the said two dates shall not be counted for the
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purpose of counting limitation in any proceeding. Thus, these two years
need to be deleted while considering the aspect of delay. Apart from this,
petitioner’s health condition and bereavement on account of death of his
father, mother and father-in-law prevented him to knock the doors of this
Court promptly. If Bank would have given him human and fair treatment
by posting him in Kolkata itself upon promotion, he would not have
preferred representation for reversion.
13. It was further highlighted by learned counsel for the petitioner that the
learned Single Judge was kind enough in giving findings on merits in
favour of the petitioner. Learned Single Judge found the breach of policy,
unjustifiable treatment given to the petitioner but did not grant him relief
solely on the grounds of delay and for not participating in subsequent two
promotional processes from 2020 onwards. Thus, these two points which
are coming in his way needs to be addressed.
14. To bolster this submission, it is submitted that delay is not a hurdle in a
case of this nature. There is no limitation prescribed under the
Constitution for filing the writ petition. In support of this submission
reliance is placed on (1985) 3 SCC 737 (Bhag Singh & Ors. vs. Union
Territory of Chandigarh), (2013) 1 SCC 353 (Tukaram Kana Joshi &
Ors. vs. Maharashtra Industrial Development Corporation & Ors.)
and 1964 SCC OnLine SC 10 (State of Madhya Pradesh & Anr. Vs.
Bhailal Bhai, State of Madhya Pradesh & Anr. Vs. Amarchand and
State of Madhya Pradesh & Anr. Vs. Ambalal).
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15. It is strenuously contended that policy relating to transfer/posting is
binding in nature. More so, when the policy is made in pursuant to an
enabling provision under the Disabilities Act of 2005. Interestingly, both
the Acts of 2005 and 2016 are pregnant with enabling provision for
issuance of circular to give effect to the object of the disabilities Act. For
this purpose, learned counsel for the petitioner has also relied on the
‘objects and reasons’ of disabilities Act to establish that existing policy
was binding. Learned counsel for the petitioner placed reliance on
following judgments:
a) 2006 SCC OnLine Guj 447 (Dipika Kantilal Shukla vs. State
of Gujarat & Ors.
b) LPA 74 of 2005 (V.K. Bhasin vs. State Bank of Patiala &
Ors.)
c) 2021 SCC OnLine HP 9084 (Sajal Kumar Negi vs. Indian
Bank through its General Manager & Ors.
d) (2022) 15 SCC 81 (Net Ram Yadav vs. State of Rajasthan &
Ors.)
16. The next contention is that the Chief Commissioner was competent to
issue the directions as contained in interim order dated 06.12.2018 and
final order dated 06.03.2020. For this purpose, (2013) 7 SCC 182
(Geetaben Ratilal Patel vs. District Primary Education Officer) was
relied upon.
17. No fault can be found in the order of learned Single Judge in directing
initiation of disciplinary proceeding is the next contention of the learned
counsel for the petitioner based on (2011) 1 Gauhati Law Reports 671
(Utpal Kumar Das vs. Court of the Munsif No.1 Kamrup), 2018 SCC
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OnLine Bom 6366 (Eastern Machinery & Trading Company & Ors.
vs. Sub-Divisional Officer Cum Administrator & Anr.) and (2012) 7
SCC 389 (Asha vs. Pt. B.D. Sharma University of Health Sciences &
Ors.). Even otherwise, in view of 2024 SCC OnLine SC 2 (vashist
Narayan Kumar vs. State of Bihar & Ors.) the relief can be moulded
while exercising writ jurisdiction.
18. Learned counsel for the petitioner, placed heavy reliance on the judgment
of the Supreme Court reported in (1976) 1 SCC 311 (Shri Krishnan vs.
Kurukshetra University, Kurukshetra). It is argued that any admission
made by a litigant in ignorance of legal rights or under duress cannot bind
the maker. This argument is advanced to bolster the submission that a
conjoint reading of the petitioner’s representations would show that
petitioner had submitted application for reversion under compelling
circumstances. Since, as per the policy prevailing, he being a disabled
person had a valuable right to be posted at Kolkata, he should not have
been posted to Patna. More so, when his previous record was excellent
and performance ratio was to the extent of 100 per cent. The posts were
lying vacant at Kolkata at the time of his promotion/posting as well as
when the writ petition came up for hearing before learned Single Judge.
19. Learned counsel for the petitioner has taken pains to contend that a
conjoint reading of applications seeking reversion will show that the
petitioner had to submit such applications having left with no option.
With 70 per cent disability, he was not able to keep his body and soul
together at Patna. The Bank rejected his application for posting him at
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Kolkata. Under such compelling circumstances and pressure, the
petitioner preferred applications for reversion which by no stretch of
imagination can be said to be voluntary applications.
Contention of the Bank/respondent:
20. Mr. Saptansu Basu, learned Counsel for the respondent submits that
there is an inordinate delay in filing the writ petition and learned Single
Judge has rightly not granted relief to petitioner because of such delay. By
taking this Court to rejection order dated 29.12.2018 Annexure ‘P-9’, it is
submitted that the cause of action if at all had arisen, it had arisen from
this date. However, this order dated 29.12.2018 was not called in
question in the petition. The petitioner again preferred representations
against the basic rejection order dated 29.12.2018 and when suffered with
another rejection by order dated 30.05.2020 Annexure ‘P-13’, assailed it
in the instant writ petition. The petitioner is projecting this order for
explaining the delay whereas the time is to be counted from 29.09.2018.
The petitioner placed reliance on the judgment of Bhailal Bhai (supra).
The Bank also placed reliance on this judgment to contend that since no
limitation is prescribed for filing petition under Article 226 of the
Constitution, the ordinary time limit prescribed for civil suit can be
treated to be the reasonable time limit for the purpose of filing a writ
petition. Admittedly, the time limit for filing a suit for the purpose of
assailing the order impugned would be 3 years. If 3 years are counted
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from 29.12.2018 i.e. the date of the rejection order, writ petition is
admittedly filed beyond 3 years from that date.
21. Furthermore, it is argued that there is no averment in the petition which
explains the delay in filing the petition. Thus, learned Single Judge rightly
declined relief on merits and opined that petition suffers from delay.
Reliance is placed on (1977) 2 SCC 584 (Naib Subedar Lachhman Dass
vs. Union of India & Ors.), (1986) 4 SCC 566 (State of M.P. & Ors. vs.
Nandlal Jaiswal & Ors.), (1995) 4 SCC 683 (State of Maharashtra vs.
Digambar), (2014) 4 SCC 108 (Chennai Metropolitan Water Supply &
Sewerage Board & Ors. vs. T.T. Murali Babu) and (2021) 13 SCC 225
(Chairman/Managing Director, Uttar Pradesh Power Corporation Ltd.
vs. Ram Gopal). In the light of these judgments, writ petitions should
have been summarily dismissed by learned Single Judge.
22. The next contention of learned counsel for the Bank is that in the entire
petition, no mala fides are alleged against any respondents. No violation of
any statutory provision is pleaded. Because of violation of
guidelines/circulars, no writ of mandamus can be issued. Reliance is
placed on (2004) 11 SCC 402 (State of U.P. & Ors. vs. Gobardhan Lal
with D.B. Singh vs. D.K. Shukla & Ors.).
23. It is canvassed that that petitioner preferred 3 applications seeking
reversion on his own volition. These applications were preferred on
08.10.2018, 24.11.2018 and 06.12.2018 respectively. In none of the
representations aforesaid the petitioner pleaded that he is seeking
reversion because of any threat, pressure or coercion on behalf of the
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Bank. Thus, the request for reversion is made by the petitioner
voluntarily and it cannot be said to be a reversion under compulsion or
threat.
24. The interim order of Chief Commissioner dated 06.12.2018 was
highlighted to show that the said statutory authority under the disabilities
Act only advised to consider the grievance of the petitioner and filed
report. The final order of said authority dated 06.03.2020 was highly
relied upon to contend that there is no finding in this order about any
violation of interim order dated 06.12.2018. There is no finding in the
final direction about any violation of the provision of disabilities act by the
Bank.
25. Section 3 of the Disabilities Act was referred by contending that it deals
with equality in order to ensure that equal treatment with general people
who are not suffering with any disability under the Act. Thus, the Act
envisages that a person should not be discriminated merely because he
suffers from any disability. The writ petitioner has not pleaded that he
was subjected to any discrimination.
26. The next limb of argument assails the finding given in the operative
portion of the impugned order passed by learned Single Judge. Para 37 to
40 of the same were read out by contending that there was no occasion for
the learned Single Judge to impose exemplary cost once writ petition was
found to be suffering from delay. The petition should have been
summarily dismissed and no further relief could have been granted. More
so, when petitioner has not prayed for any relief for grant of increments
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and for conducting enquiry. The relief granted beyond pleadings and
prayer is bad in law and runs contrary to law laid down in (2008) 17 SCC
491 (Bachhaj Nahar vs. Nilima Mandal & Anr.). It is strenuously
contended by learned counsel for the Bank that the finding given in Para
28 of the impugned order is based on surmises and conjectures and are
perverse in nature.
27. The next contention is that the judgment of the Shri Krishnan (supra)
cannot be pressed into service in this case because the petitioner is a
highly educated Scale-IV officer and cannot plead ignorance about the
consequences of his application seeking reversion. Thus, the judgment in
Shri Krishnan (supra) has no application. In fact, the voluntarily
reversion is covered by judgment of Supreme Court reported in (2008) 2
SCC 653 (C.V. Satheeshchandran vs. General Manager, UCO Bank &
Ors.).
28. In nutshell, learned counsel for the Bank submits that after having
formed the opinion that petition suffers from delay, it was not open to
learned Single Judge to give any finding on merits, impose cost and issue
directions for holding disciplinary enquiry. Thus, his appeal may be
allowed and order impugned may be set aside to the extent it operates
against the Bank.
Rejoinder submission:-
29. Learned Counsel for the employee contended that in the affidavit-in-
opposition filed before the learned Single Judge, the Bank has not taken
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any plea about delay or maintainability of writ petition. Interestingly, in
their appeal also before this Bench, no such ground of delay in filing the
writ petition was raised. By placing reliance on Order 41 Rule 2 of CPC it is
argued that in absence of raising any such objection of delay, the delay is
not a hurdle for the employee. Reference is made to AIR 1967 SC 1193
(M.P. Shreevastava vs. Mrs. Veena) and 2022 (13) SCC 221 (State of
Punjub and Ors. Vs. Dev Brat Sharma) to contend that ground of delay
must be taken before the first Court.
30. To meet the argument of Counsel for employer that cause of action had
arisen on 29.12.2018, learned Counsel for employee contended that a plain
reading of Order dated 29.12.2018 shows that by this order, the application
of employee seeking reversion was accepted whereas order dated
30.05.2020 which was called in question before learned Single Bench was
an order whereby his prayer for restoration of promotion was rejected.
Thus, the cause of action has arisen from 30.05.2020 when prayer for
restoration of promotion was rejected.
31. By placing reliance on paragraph 20 to 25 of writ petition and Para 18, 22
and 33 of rejoinder it is pointed out that allegations of mala fide were
actually alleged against respondent Bank. Similarly, guidelines are binding
were pleaded and judgment of Supreme Court in Net Ram Yadav (Supra)
was relied upon. The Bank in its affidavit-in-opposition clearly stated that
promotion and posting is indeed governed by the guidelines in question.
Apart from this, the judgment of Supreme Court in State of U.P. & Ors.
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Vs. Govordhan Lal reported in (2004) 11 SCC 402 is in relation to
transfer matter and not about promotion and posting.
32. Heavy reliance is placed on Para 11 and 14 of writ petition wherein
petitioner pleaded that how he was coerced to seek reversion and, therefore,
such reversion must be treated to be a reversion under compulsion and it
cannot be treated to be a voluntary reversion at the behest of the employee.
In the affidavit-in-opposition, the respondents have not dealt with the
aforesaid paragraphs of the writ petition and, therefore, said paragraphs
were not denied and hence, must be treated to be admitted.
33. The finding in Para 28 of the impugned order of learned Single Bench is
not based on surmises. Indeed, it is based on material available on record
including petitioner’s representation dated 24.11.2018 sent from Patna
which was supported by a Doctor’s Certificate.
34. The issue of discrimination was highlighted by taking assistance of
Section 3 of disability act by contending that three persons were posted on
promotion at Kolkata Zonal Office and pleading in this regard mentioned
in Para 24 and 25 of writ petition were not denied. Thus, Section 3 can be
pressed into service.
35. Lastly, it is submitted that Section 35A of CPC gives power to the Court to
impose cost. Cost can also be imposed if false statement is made on oath.
Learned Single Judge found such false statement being made before it by
the Bank and, therefore, no fault can be found in the order of learned
Single Judge directing imposition of cost and initiation of disciplinary
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proceedings. The learned Counsel for petitioner has tried to distinguish
the judgments cited by learned Counsel for the employer.
36. The parties confined their arguments to the extent indicated above. We
have bestowed our anxious consideration on rival contentions and
perused the record.
FINDINGS:-
Delay and non-participation in promotional process:
37. Since the question of delay goes to the root of the matter and relief of
restoration of promotion was not granted by learned Single Judge on the
ground of delay and for not participating in the promotional process, we
deemed it proper to deal with these aspects at the outset.
38. As noticed above, the facts are not in dispute. The parties have taken a
diametrically opposite stand for counting delay from a particular date.
The employer submits that the delay must be counted from 29.12.2018,
the date of first rejection order whereas employee urged that it is the order
dated 30.05.2020 by which his prayer for restoration of promotion was
rejected which gave him cause of action to assail the order.
39. A plain reading of order dated 29.12.2018 shows that petitioner’s request
for seeking reversion from SMG Scale-IV to MMG Scale-III was accepted
and it was made clear that it will entail debar Clause as per promotion
policy. The order dated 30.05.2020, on the other hand, makes it clear
that by this order the petitioner’s request for restoration of promotion to
Scale-IV and posting at Kolkata was rejected. Thus, we find substance in
the argument of learned counsel for the petitioner that the rejection order
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dated 30.05.2020 can be treated to be the order by which petitioner was
aggrieved.
40. It is also noteworthy that the learned counsel for the Bank could not
point out any pleading from affidavit in opposition filed before learned
Single Judge or from the pleadings of the intra Court appeal that Bank
had raised any objection regarding delay in filing the petition.
41. In Tukaram Kana Joshi (supra) the Apex Court considered the aspect
of the delay and latches and came to hold as under:
“12. The State, especially a welfare State which is governed by the rule of law,
cannot arrogate itself to a status beyond one that is provided by the laches is
adopted as a mode of discretion to decline exercise of jurisdiction to grant relief.
There is another facet. The Court is required to exercise judicial discretion. The
said discretion is dependent on facts and circumstances of the cases.
Delay and laches is one of the facets to deny exercise of discretion. It is
not an absolute impediment.”
(Emphasis Supplied)
42. Thus, it is clear that the Court needs to apply its judicial mind and
discretion which dependents on the facts and circumstances of each case.
Delay cannot be an absolute impediment as a rule of thumb.
43. Undisputedly, the Covid restrictions were prevailing from 15.03.2020 to
28.02.2022 and this period was directed not to be counted for the purpose
of counting limitation by a general order passed by the Supreme Court.
Petitioner could also point out that during this period, apart from his own
pains and disabilities, there were bereavement in the family which also
caused delay. Thus, delay is properly explained by the petitioner. In
absence of any objection of delay being taken by the employer before
learned Single Judge and in Appeal, in our view, it will not be proper to
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non-suit the employee on the ground of delay in the facts and
circumstances of the present case.
44. Interestingly, both the counsel during the course of hearing relied on the
judgment of the Supreme Court in Bhailal Bhai (supra). In this
judgment, it was laid down that the limitation prescribed to file a civil suit
can be safely taken to be a reasonable time for the purpose of filing writ
petition. In our view, this judgment helps the employee because his
prayer for restoration of promotion was rejected only in 2020 and he filed
the instant writ petition within 3 years. For this reasons also, the writ
petition cannot be thrown to winds on the ground of delay.
45. In the case of Digambar (supra) the delay was about 20 years. T.T
Murali Babu (supra) was a case of unauthorized absence and delay was
about 4 years. In Ram Gopal (supra), the employee was dismissed in
1978 and he filed writ petition in 1990. In the peculiar fact situations of
those cases, the Apex Court opined that the petitions suffered from delay
and laches. Same is the case with Naib Subedar Lachhman Dass
(supra) where delay was 4 years on the part of the petitioner. In Nandlal
Jaoswal & Ors. (supra) interference was declined on the ground of delay
because in the meantime, third party rights were created. In our opinion,
these judgments cited by the Bank cannot be pressed into service in the
case of this nature where there exists no such inordinate delay. Apart
from this, no third party right is created in favour of anybody. In other
words, if the writ petition is allowed it will not have any adverse impact on
any third party.
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46. So far depriving the petitioner for non-participation of subsequent
promotional process is concerned, suffice it to say that petitioner cannot
be held responsible for the same. While passing the rejection order dated
29.12.2018, the Bank made it crystal clear that due to debar clause of the
promotional policy, the petitioner cannot participate in the future
promotion process. This aspect has escaped notice of the learned Single
Judge and we are constrained to hold that this non-participation of
petitioner by no stretch of imagination can be a reason to deprive the
petitioner from the fruits of litigation, if he is otherwise entitled to enjoy
the same.
Binding effect of Policy:
47. Admittedly, since 2012 Bank has a policy for accommodating the persons
with disabilities during transfer/promotion subject to administrative
exigencies. The relevant portion of Clause 16 and 17 of said policy which
also deals with promotion and posting reads thus:
“16. TRANSFER OF PHYSICALLY HANDICAPPED OFFICERS:
i. In terms of the Government guidelines, subject to administrative exigencies, a
Physically Handicapped Employee in the Bank, in all cadres, whose relevant
disability is to the extent of minimum 40% and who has been given disability
Certificate by the competent authority, shall normally be exempt from routine
periodic outstation transfers. Competent Authority to issue disability certificate,
as per Government guidelines is a Medical Board duly constituted by the central
or State Government. The Central/State Government may constitute Medical
Board(s) consisting of at least 3 members, out of which at least one shall be a
specialist in the particular field for assessing locomotor/cerebral/visual/hearing
diability, as the case may be. Such medical certificate should specifically contain
the nature of disability i.e. permanent. Where the Medical Board has indicated
the period of validity of the certificate, in cases where there are chances of
variation in the degree of disability, it must be ensured that the certificate held on
record is within this validity period.
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ii. Such Officers shall not normally be transferred even on promotion if a
vacancy exists in the same Branch/Office/Town/City. If the transfer of a
physically handicapped employee becomes inevitable on promotion to a
place other than his original place of appointment due to non-
availability of vacancy, it shall be ensured that such employee is kept
close to his original place of posting and in no case is transferred to far
off/remote places.
(Emphasis Supplied)
48. The employer has placed reliance on the judgment of the Supreme Court
in case of Gobardhan Lal (supra). No doubt, in catena of judgments, the
Supreme Court opined that in transfer matters, interference cannot be
made on breach of guidelines/policy. In the instant case, the policy is
made under the enabling provision of the statute namely, Disabilities Act.
Section 20 (5) of Disabilities Act reads as under:
“20. Non-discrimination in employment.– (5) The appropriate Government
may frame policies for posting and transfer of employees with disabilities.”
49. Thus, policy has a statutory flavour and backing in this case. The Apex
Court in Net Ram Yadav (supra) considered the UNCRPD and opined as
under:
“27. UNCRPD has been ratified by India. The State is obliged to give effect to
UNCRPD. All statutes, rules, regulations, bye-laws, orders and circulars for the
benefit of the physically disabled necessarily have to be given a purposive
interpretation in harmony with the principles of UNCRPD.
28. Even otherwise, human rights are rights inherent in civilized society, from the
very inception of civilization, even though such rights may have been identified
and enumerated in international instruments such as the Universal Declaration of
Human Rights adopted by the General Assembly of the United Nations on 10-12-
1948, or other international conventions and instruments including UNCRPD.
Furthermore, the disabled are entitled to the fundamental right of equality
enshrined in Articles 14 to 16 of the Constitution of India, the fundamental
freedoms guaranteed under Article 19 including the right to carry out any
occupation, profession, the right to life under Article 21, which has now been
interpreted to mean the right to live with dignity, which has to be interpreted
liberally in relation to the disabled.
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29. One of the hindrances/disadvantages faced by the physically disabled
persons is the inability to more freely and easily. In consideration of the
obstacles encountered by persons with disabilities, the State has issued
the said Notification/Circular dated 20-7-2000 for posting disabled
persons to places of their choice, to the extent feasible. The object of this
benefit to the physically disabled is to, inter alia, enable the physically
disabled to be posted at a place where assistance may readily be
available. The distance from the residence may be a relevant consideration to
avoid commuting long distances. The benefit which has been given to the
disabled through the Circular/Govgernment order cannot be taken away
by subjecting the exercise of the right to avail of the benefit on such
terms and conditions, as would render the benefit otiose.
31. With the greatest of respect, both the Single Bench as also the Division Bench
of the High Court have overlooked the scope and ambit of the Explanation which
has no application in the State to seniority. In our view, the High Court
should have been more sensitive and empathetic to the plight of a
physically disabled. The High Court erred in law in overlooking the
difference between physically disabled persons impaired in their
movement and normal able-bodied persons. The High Court failed to
appreciate that treatment of unequals as equals ignoring their special needs
violates Article 14 of the Constitution.”
(Emphasis Supplied)
50. India being signatory to UNCRPD is obliged to make its statutes, rules,
guidelines, circulars etc. for the advantage of physically disabled persons.
The disabled are entitled to the fundamental right of equality flowing from
Article 14 and 16 of the Constitution. In Net Ram Yadav (supra) the
State issued a notification/circular dated 20.07.2000 which was an
executive instruction/guideline. While considering the said circular, the
Apex Court opined that object is to enable physically disabled to be posted
at a place where assistance is readily available. The judgment of High
Court was overturned by Supreme Court with observation that the High
Court should have been more sensitive and empathetic to the plight of a
physically disabled. It was further observed that the High Court erred-in-
law in overlooking the difference between physically disabled persons
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impaired in their movement and normal able bodied person. The special
need of such persons could not be noticed by the High Court.
51. Interestingly, a similar policy of State Bank of Patiala became subject
matter of consideration before a Division Bench of Delhi High Court in the
case of V.K. Bhasin (supra). Sanjay Krishan Kaul, J. (as His Lordship
then was) speaking for the Bench recorded as under:
“23. There is no doubt that the appellant is only to be considered for transfer to a
proximate place to his native place, but the guidelines of 1988 make it clear that
such request is to be accepted unless in case of administrative exigency
otherwise.
24. The written synopsis also goes on to raise the issue of scope of judicial
review. In matters of transfer, this Court does not sit as a court of appeal.
However, where the very basis is erroneous, this Court is entitled to intervene.
Totally irrelevant factors have been taken into account as stated above and the
provisions of statutory enactment like the said Act, the said rules and the Office
Memorandum issued in furtherance thereof are sought to be defeated. One
cannot lose sight of the fact that the legislation is in furtherance of international
commitments and to give an equal treatment to persons with disability. All this
has been given a go-bye while rejecting the request of the appellant and the Bank
insists on implementing the erroneous decision. In such a case, this Court cannot
be powerless to remedy the situation.
25. Nothing has been brought on record to show us that it is not possible to
accommodate the appellant at Dehradun. It is not a place of posting like Delhi or
Mumbai. The appellant is a bachelor dependent on a sister residing there. The
respondent Bank did not even agree when the appellant wanted to be relieved of
the services and is obviously desirous of keeping the appellant as a serving
officer. Normally, we would have left it to the respondent Bank to again take a
fresh decision, but seeing the attitude, it would serve no purpose. Further, the
appellant was posted in a supernumerary post even at the stage of transfer from
Dehradun. We, thus, consider it appropriate to direct that the appellant should
be posted and accommodated at Dehradun and would continue as such, but in
case of administrative exigency of extreme nature arising (which at present looks
implausible) posting in nearby place can always be given in terms of the circular
dated 15.02.1988.” (Emphasis Supplied)
52. A conjoint reading of ratio laid down in Net Ram Yadav (supra) and V.K.
Bhasin (supra) leaves no room for any doubt when a policy is made for
the purpose of granting benefit to disabled persons under the Act or under
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the UNCRPD, the same will have a binding force. Thus, we are unable to
persuade ourselves with the line of argument of learned counsel for the
employer that the policy aforesaid was not binding on the Bank. The
similar was the view taken by Supreme Court in Dipika Kantilal Shukla
(supra) and Sajal Kumar Negi (supra).
Whether Reversion was a voluntary Act:-
53. The learned Single Judge, in our considered judgment was correct in
holding that petitioner admittedly suffered with disability. His
performance in Kolkata was good. The promotional posts were lying
vacant wherein he could have been accommodated. In this background, it
was held that the Bank was not justified in posting the petitioner on
promotion to Patna when posts were lying vacant at Kolkata. The finding
of learned Single Judge that as many as 4, if not more officers in Scale-IV
category upon promotion in October, 2018 have been transferred to
Kolkata by the Bank from different parts of the country were not attacked
by Bank at all. Learned counsel for the employee also relied on number of
documents to establish that promotional post of Scale-IV was very much
available at Kolkata where petitioner could have been accommodated and
thus, the view taken by the learned Single Judge in Para 26 of impugned
order is based on material on record and is a plausible view.
54. Pertinently, the writ petitioner in Affidavit-in-reply pleaded as under:
“26. I say that without considering the first letter issued by the CCPD dated
06.12.2018, the respondent Bank started pressurizing the petitioner for reversion
through the Zonal Office Patna and his immediate superior Mr. G. Pradhan,
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Chief Manager of Patna Zonal Office, called the petitioner at least 5
times over phone upto 18.12.2018 for fresh reversion seeking letter.
Copies of the call list are annexed herewith and marked as “R-3”. The
respondent Bank Authorities further requested CCPD to drop the case on
29.12.2018 mentioning that they accepted the petitioner’s request for reversion.
A copy of the letter dated 29.12.2018 is annexed hereto and marked as “R-4”.
Furthermore, if the inward Dak register of HRDD/HRMD and MD secretariat of
H.O. for December 2018 is looked into to ascertain the receipt of the CCPD letter
dated 6.12.2018 advising the respondent Bank to follow the guidelines for
Handicapped employees and the petitioner’s letter requesting for reversion from
Scale-IV to Scale-III under compelling circumstances, it would be evident that the
letter of CCPD reached HO before the petitioner’s letter and still the respondent
bank decided to ignore the letter of CCPD and demote the petitioner, implying
discrimination against OH employees.”
(Emphasis Supplied)
55. The specific pleading of petitioner mentioned in para 26 and 27 aforesaid
were not denied by the respondents in their affidavit-in-opposition.
Thus, in view of judgment of Supreme Court in Naseem Bano vs. State
of UP, reported in 1993 Supp (4) SCC 46, if specific pleadings are not
denied, same may be presumed to be admitted. Thus, we find no
difficulty in holding that the petitioner sought his reversion under
compelling circumstances.
56. It is apt to consider the pain reflected in the representations of petitioner
seeking posting at Kolkata. The relevant portion reads thus:
“Letter of Anirban Pal/Petitioner dated 06.12.2018 (Annexure ‘P-7’)
I want to reiterate that being orthopedically handicapped (spine related) with
70% variation to normal (MRI reports and medical evidences since 2013 were
sent to CO/HO for recording Win HRMS in May 2017) I had applied for promotion
as thought my posting would recording by PAD circular 253 of 2015 as I knew
my physical state would not permit me to go far out of my residential area. After
getting posting at ZO Patna I had sent three mails dated 6.10.2018, 8.10.2018
and 10.10.2018 stating my condition and requesting for consideration of posting
which was rejected by the Authorities on 16.10.2018. Thereafter, I had no other
option but applying for withdrawal from promotion process/reversion to scale-III
and sent the mail dated 16.10.2018 to the concerned Authorities as mentioned
above I need help of others and physiotherapeutic arrangements in many of my
day to day activities particularly in the morning. I had many in evening of
12.11.2018 due to lack of proper bed and had suffered from bat hotel in Patna
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Land also I could not undergo the exercises with physiotherapeutic equipments
that I normally A undertake at my native place I had undergone MRI on
14.11.2018 in Kolkata (report Me attached) and the report reflects that my spinal
condition have worsened since my last. MRI report of 23.01.2017 and I have
become more susceptible to frequent back problems.
Apart from this final stage prostate cancer of my father with bone metastasis
and mediastinal lymphadenopathy was detected in March 2018 i.e. after
completion of the promotion process in February 2018 (evidences attached). My
father is critically ill and mother is handicapped and my wife, my 12 year old
daughter and myself (their only offspring) have to take care of them and no other
family members can move to Patna to assist me.
It is almost impossible for me to stay alone and work at such a distant place
from my residence with my health problems and the compelling
circumstances mentioned above has forced me to apply for reversion and
return to my native circle.
Lastly on an emotional note I would like to mention that I thought of applying for
promotion because I was one of the top performing managers in Kolkata circle for
3 consecutive years, particularly in terms of quality credit in own power and I felt
I should get reward from the Bank in terms of promotion and my posting would
be guided by PAD circular 253 of 2015. In 2017, I waited for the whole year as
empanelled candidate and this year also I had a long wait as my
handicappedness was queried in details by the interview board particularly on
my ability to move extensively and I secured poor marks in interview.
Please consider my prayer and oblige.” (Emphasis Supplied)
57. The petitioner had a preferential right to be posted at Kolkata in view of
binding policy of the Department. A suitable and meritorious officer was
not posted at Kolkata for the reasons best known to the Department. No
justifiable reason was spelt out in not posting the petitioner on
promotion at Kolkata despite the mandate ingrained in the guidelines.
We are convinced that the petitioner made efforts to work on promotional
post at Patna but found it difficult and impossible to live alone at Patna
with his 70 per cent disability. In this compelling circumstance, he had
no option but to seek reversion. In Shri Krishnan (supra) the Apex
Court opined as under:
“it is well settled that any admission made in ignorance of legal rights or under
duress cannot bind the maker of the admission. In these circumstances we areMAT 1380 & MAT 1381 of 2024
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clearly of the opinion that the letter written by the appellant does not put him out
of court.”
(Emphasis Supplied)
58. The principle laid down in Shri Krishnan (supra) can be pressed into
service in a case of this nature where employee was left with no option
but to prefer an application seeking reversion.
59. The matter may be viewed from another angle. The petitioner had a
legitimate expectation based on the promotion/transfer policy to remain
posted on promotion at Kolkata. Failure to consider and give due weight
to such a policy makes the decision arbitrary. It is settled law that the
requirement of due consideration of a legitimate expectation forms part of
principle of non-arbitrariness, which is a necessary concomitant of the
rule of law. Every legitimate expectation is a relevant factor requiring
due consideration in a fair decision making process (See Para 42
judgment of Supreme Court in Ms. X vs. Registrar General, High
Court of Madhya Pradesh & Anr., reported in (2022) 14 SCC 187).
Since legitimate expectation of petitioner is breached, we can safely treat
the impugned action in not restoring the promotion as arbitrary. In the
same judgment, the Apex Court opined that denial of legitimate
expectation could lead to desperation, exasperation and frustration. The
language used by the petitioner in the resignation letter therein was held
to be evident when she tendered resignation.
60. The Supreme Court considered the aspect whether upon considering the
nature of language used in a letter, it can be treated to be a voluntary
resignation or not. It is apposite to quote the relevant Para from the
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Judgment of Ms. X vs. Registrar General, High Court of Madhya
Pradesh and Anr. (supra):-
“8. In P.K.Ramachandras Iyer vs. Union of India this Court had an
occasion to consider the nature and character of a letter written by on e of the
petitioners in that case who after stating in the letter that he has been all
along patiently waiting for the redressal of his grievance, yet justice has
not been done to him and
’34. ……. “As such, after showing so much patience in the matter, I am
sorry to decide that I should resign from the membership of the Faculty
in protest against such a treatment and against the discrimination and
victimization shown to me by the Head of the Division in the allotment of
students of 1968 and 1969 batches and departmental candidates”. (SCC
p.172, para 34)
In the context, this Court observed that the callous and heartless attitude
of the Academic Council in seizing an opportunity to get rid of him by treating the
said letter to be a letter of resignation when really he was all along marketing
representations seeking justice to him and out of exasperation the said person
wrote that letter stating that the only honourable course left open to him was to
resign rather than suffer (P.K.Ramachandra Iyer case, SCC p.173, para
34).”
61. If language used by petitioner in his representations mentioned herein
above is considered in the light of principle laid down in the case of P.K.
Ramachandra Iyer (supra) it will be clear that the petitioner waited for
sufficient time for redressal of his grievance by the Bank. Since, his
genuine request could not fetch any result, he sought reversion. In our
opinion, such reversion cannot be treated to be ‘voluntary’ in nature.
62. In P.K. Ramchandra Iyer v. Union of India reported in (1984) 2 SCC
141 it was further held that it may amount to a threatened offer more
on account of exasperation, to resign on account of a filling of frustration
born out an idea that he/she was being harassed unnecessarily but not
at any rate, amounting to resignation actual and simple. In tune with
this principle, we are inclined to hold that petitioner sought reversion
when his legitimate request for posting him to Kolkata went in vain and
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he found himself unable to function at Patna without any family support
and with 70% disability. He was left with no option but to seek
reversion. The Apex Court in Ms. X vs. Registrar General, High
Court of Madhya Pradesh and Anr. (supra) poignantly held as under:-
“We are, therefore, of the considered view that in the peculiar facts and
circumstances of the case, the petitioner’s resignation dated 15-7-2014, could not
be construed to be voluntary. In any case, immediately in a fortnight, on 1-8-
2014, the petitioner had made a representation to Hon’ble the President of India
as well as the Chief Justice of India, with a copy to the Chief Justice of the M.P.
High Court for reconsideration of the circumstances under which, she was left
with no option but to resign. Though, it may not be possible to observe that the
petitioner was forced to resign, however, the circumstances enumerated
hereinabove, would clearly reveal that they were such, that out of
frustration, the petitioner was left with no other alternative.”
(Emphasis Supplied)
63. As analyzed above, the petitioner did not voluntarily prefer application
seeking reversion. Instead, he preferred it under compelling
circumstances mentioned hereinabove. Thus, he cannot be deprived
from the legitimate benefit of posting at Kolkata as Scale-IV officer.
Pertinently, during the course of hearing, learned Counsel for the Bank
did not dispute that at the time of promotion and posting and even at the
time of final hearing of writ petition, the promotional post of Scale IV was
very much available in Kolkata.
Other points:
64. We will be failing in our duty if other points raised by learned Counsel for
the parties are not dealt with. One of the objection raised by learned
Counsel for the Bank was based on the judgment of Supreme Court in
the case of C.V. Satheeshchandran v. General Manager, UCO Bank
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and Others reported in (2008) 2 SCC 653. A plain reading of the
factual backdrop of the said case shows that the petitioner therein could
not establish that he sought reversion under compelling circumstances.
In this view of the matter said judgment is of no help to the Bank
because in the present case we have already held that the application
seeking reversion by the petitioner was tendered under compelling
circumstances and it does not have ‘voluntary’ character.
65. Both the parties have relied the Judgments of Supreme Court in the case
of State Bank of Patiala and others (supra) and Geetaben Ratilal
Patel (supra). Interestingly, the orders passed by Chief Commissioner
under Disability Act were not assailed by anybody. As per the order of
said authority, it was obligatory on the part of the Bank to adhere to
their guidelines. The Bank has chosen to accept the reversion prayer of
the petitioner and did not act with quite promptitude on the direction of
Chief Commissioner to follow the guidelines. If guidelines would have
been followed, there was no occasion for the petitioner to tender
application seeking reversion.
66. On another aspect parties have taken diametrically opposite stand. The
aspect is whether the Writ Court was justified in imposing cost and
issuing direction to institute disciplinary proceeding. If we would have
affirmed the order of learned Single Judge regarding delay in filing the
petition, perhaps we would have agreed with the argument of learned
Counsel for the Bank that once petition was held to be suffering from
delay and laches, it should have been dismissed summarily and there
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was no occasion for issuing direction for instituting enquiry and
imposition of cost. However, we have held that delay was not a hurdle
for the petitioner and, therefore, this argument of learned Counsel for the
Bank cannot cut any ice.
67. The learned Counsel for petitioner has rightly relied on the various
judgments to show that while exercising power under Article 226 of the
Constitution, the High Court has inherent power to mould the relief and
even issue direction for instituting enquiry and imposition of cost. More
so when it was found that Bank has suppressed material facts. In view
of judgments mentioned in Para 17 of this order, in our view, the learned
Single Judge has taken a plausible view. Thus, impugned order does not
require any interference on this aspects.
68. As a result, Para 35 of impugned order of learned Single Judge is set
aside. It is held that the writ petition was filed within reasonable time.
The petitioner was not responsible for not participating in the
promotional process because of bar imposed by the Bank. Resultantly,
impugned order before learned Single Judge dated 30.5.2020 is set
aside. The respondent Bank shall restore the promotion of petitioner
within 45 days from the date of production of copy of this order as Scale-
IV from the date of reversion on notional basis by posting him at Kolkata.
To clarify the petitioner shall not get the arrears of pay from the date of
his restoration of promotion but his seniority and pay fixation shall be
made on notional basis on the promotional post of Scale-IV. From the
date of assumption of charge as Scale-IV Officer, he shall get the actual
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salary attached to the said post. The remaining portion of the order of
learned Single judge is upheld. The MAT No. 1380 of 2024 is partly
allowed. MAT No. 1381 of 2024 of employer is dismissed. No cost.
69. Urgent Photostat certified copies of this judgment, if applied for, be made
available to the parties subject to compliance with the requisites
formalities.
(Sujoy Paul, J.)
I agree.
(Smita Das De, J.)
MAT 1380 & MAT 1381 of 2024
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