Calcutta HC Restores Promotion Of Disabled Officer | Disabled Persons Entitled To Posting At Same Place Even After Promotion Under Policy Backed By International Obligations
Isabella Mariam
The High Court at Calcutta Division Bench of Justice Sujoy Paul and Justice Smita Das De directed Punjab National Bank to restore the promotion of a disabled employee to Scale-IV, posting him at Kolkata. The Court set aside the rejection order dated 30 May 2020, which had denied the restoration of promotion, and held that the writ petition was filed within reasonable time. It further stated that the employee’s non-participation in subsequent promotional processes could not be a ground for denying relief, as he was barred under the Bank’s own policy. The Court ordered restoration of promotion on a notional basis from the date of reversion and directed that the employee be accorded actual salary from the date of assumption of charge. The appeal filed by the Bank was dismissed, and the appeal filed by the employee was partly allowed.
The dispute arose from the Bank’s decision not to accommodate the petitioner, a Scale-III officer with 70 percent disability, in Kolkata after his promotion to Scale-IV in October 2018. Upon promotion, the petitioner was transferred to Patna. He submitted a representation on 8 October 2018 requesting retention in Kolkata due to his health and family circumstances, but the Bank rejected the request. The petitioner joined at Patna on 12 November 2018. On 24 November 2018, he submitted another representation seeking reposting in Kolkata or reversion to Scale-III, citing difficulties in living and working alone with his disability.
Before submitting the second representation, the petitioner had also approached the Chief Commissioner of Persons with Disabilities under the Rights of Persons with Disabilities Act, 2016, challenging the Bank’s refusal to accommodate him in Kolkata. On 6 December 2018, the Authority issued an interim direction advising the Bank to consider his claim. On the same date, the petitioner again submitted a request for reversion. The Bank accepted his request for reversion by order dated 29 December 2018, declaring it irrevocable and imposing a debarment clause for two years.
Subsequently, on 30 May 2020, the Bank rejected the petitioner’s request for restoration of promotion, which became the subject of the writ petition filed in 2023. The learned Single Judge dismissed the petition on grounds of delay of over three years and the petitioner’s non-participation in two subsequent promotion processes. However, the Single Judge recorded findings against the Bank, including violation of policy and unfair treatment, and directed payment of increment, imposition of costs of Rs. 3 lakhs, and initiation of disciplinary proceedings against Bank officials.
The petitioner contended that the delay was explained by Covid-19 restrictions, health conditions, and family bereavements. He argued that delay is not a bar in writ jurisdiction and cited precedents such as Bhag Singh vs. Union Territory of Chandigarh and Tukaram Kana Joshi vs. Maharashtra Industrial Development Corporation. He further submitted that his applications for reversion were compelled by circumstances and pressure, and not voluntary.
The Bank argued that the cause of action arose on 29 December 2018 when the reversion was accepted, and the writ petition filed in 2023 was beyond three years. It submitted that no mala fides or statutory violation were pleaded and relied on precedents to argue that writ petitions should be dismissed for delay. The Bank contended that the petitioner voluntarily sought reversion through three applications in October, November, and December 2018. It further argued that the directions of the Chief Commissioner were only advisory and that no discrimination was established under Section 3 of the Disabilities Act.
In rejoinder, the petitioner relied on pleadings to establish allegations of mala fides and coercion, pointing out that his assertions in the writ petition and rejoinder were not denied by the Bank. He argued that the cause of action arose from the rejection order dated 30 May 2020, not from the acceptance of reversion in 2018. He relied on his specific pleadings that the Bank pressured him through repeated phone calls and ignored the Chief Commissioner’s directions.
The Division Bench first addressed the issue of delay. It recorded: “Delay cannot be an absolute impediment as a rule of thumb.” It observed that Covid restrictions from March 2020 to February 2022 were excluded from limitation by Supreme Court orders, and the petitioner’s health conditions and family bereavements further explained the delay. The Court also noted: “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 non-suit the employee on the ground of delay in the facts and circumstances of the present case.”
The Court accepted the petitioner’s contention that the cause of action arose from the 30 May 2020 rejection order. Referring to Bhailal Bhai, it observed: “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.”
On the issue of non-participation in subsequent promotional processes, the Court held: “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.”
Turning to the binding effect of policy, the Court considered Clauses 16 and 17 of the Bank’s 2015 Transfer Policy, which exempted physically handicapped employees from routine transfers and required efforts to accommodate them in their place of posting on promotion. It held: “Thus, policy has a statutory flavour and backing in this case.” Citing Net Ram Yadav vs. State of Rajasthan, the Court stated: “The High Court should have been more sensitive and empathetic to the plight of a physically disabled. The High Court failed to appreciate that treatment of unequals as equals ignoring their special needs violates Article 14 of the Constitution.”
On the voluntariness of reversion, the Court referred to the petitioner’s pleadings of repeated pressure and medical evidence and recorded: “Thus, in view of judgment of Supreme Court in Naseem Bano vs. State of UP… 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.”
Quoting from the petitioner’s representation, the Court noted his assertion: “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.” Applying the principle in Shri Krishnan vs. Kurukshetra University, the Court observed: “Any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission.” It further cited Ms. X vs. Registrar General, High Court of Madhya Pradesh, holding that resignation or reversion letters made under frustration and compelling circumstances cannot be treated as voluntary.
The Bench concluded: “We are inclined to hold that petitioner sought reversion when his legitimate request for posting him to Kolkata went in vain and 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.”
On the Single Judge’s directions regarding costs and disciplinary proceedings, the Court noted that since it found delay not to be a hurdle, the Bank’s objections could not succeed. It held: “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.”
The Court set aside paragraph 35 of the Single Judge’s order which held the writ petition barred by delay. It held: “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 Bench directed: “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 salary attached to the said post.”
It upheld the remaining directions of the Single Judge, including imposition of costs and initiation of disciplinary proceedings. The appeal filed by the employee was partly allowed, while the Bank’s appeal was dismissed.
Advocates Representing the Parties
For the Petitioner: Mr. Srijib Chakraborty, Advocate; Ms. Rupsa Sreemani, Advocate
For the Respondents: Mr. Saptansu Basu, Advocate; Ms. Parna Roy Choudhury, Advocate
Case Title: Anirban Pal vs. Punjab National Bank & Ors.
Neutral Citation: 2025: CHC-AS:1566-DB
Case Number: MAT 1380 of 2024 with MAT 1381 of 2024
Bench: Justice Sujoy Paul and Justice Smita Das De
