Calcutta High Court (Appellete Side)
Mitali Nandy & Others vs The State Of West Bengal & Others on 8 October, 2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Hiranmay Bhattacharyya
W.P.S.T 109 of 2019
Mitali Nandy & Others
versus
The State of West Bengal & Others
For the Petitioners : Mr. Pratik Dhar (through v.c.),
Mr. Ritwik Pattanayak,
Ms. Cardina Roy.
For the State Respondents : Mr. Sirsanya Bandopadhyay (through v.c.)
Mr. Arka Kumar Nag.
For the P.S.C. : Mr. Pradip Kr. Roy (through v.c.),
Ms. Shraboni Sarkar (through v.c.).
Hearing is concluded on : 17.09.2021.
Judgment On : 8th October, 2021.
Tapabrata Chakraborty, J.
1. The present writ petition has been preferred challenging an
order dated 19th June, 2019 passed by the learned West Bengal
Administrative Tribunal in OA 659 of 2018 wherein the petitioner
prayed for the following reliefs :
'(a) Mandatory order do issue commanding the respondents,
and their men agent and assigns to produce the record of the case
including the Memo bearing No. 1963/3/BWD dated 13.07.2018,
being annexure "A-12" herein, so that cognisable justice may be
rendered by quashing the same;
(b) Mandatory order do issue commanding the respondents,
and their men agent and assigns to confirm the benefits of exemption
from appearing in the Departmental Examination, for being promoted
to the post of Executive Engineer (Civil) as granted to the applicant.
(c) Mandatory order do issue commanding the respondents,
and their men agent and assigns to promote the applicant to the post
of Executive Engineer (Civil) upon fulfilling all the eligibility criterions
for the promotion.'
2. The learned Tribunal rejected the prayers holding that the
petitioner was not entitled to be exempted from appearing in the
departmental examination on the date of his promotion to Assistant
Engineer (in Short, AE) with retrospective effect from 21st
November, 1994 as he was liable to pass the departmental
examination at that relevant period for not crossing 52 years of age.
3. During pendency of the writ petition, the petitioner, namely,
Bidyut Kumar Nandi (in short, Bidyut) expired on 12th January,
2020 and thereafter the present applicants, who are the heirs of the
deceased, have been brought on record.
4. Mr. Dhar, learned senior advocate appearing for the heirs of
Bidyut, submits that that having granted promotion to the post of
AE with retrospective effect from 21st November, 1994 vide memo
dated 28th March, 2018, the respondents had no jurisdiction to stop
his increments with effect from 1st July, 2018 vide order dated 13th
July, 2018 on a purported plea that he had not been granted
exemption from passing the departmental examination. The said
order had been passed on an erroneous premise in as much as
there was no requirement to pass any departmental examination for
continuance in the post of AE.
5. He contends that Bidyut fulfilled all the eligibility criteria
under the recruitment rules for promotion to the post of AE in the
year 1992 but such promotion was illegally withheld for more than
a decade and ultimately granted by a memo dated 6 th August, 2013
and in the midst thereof, Bidyut crossed the age of 52 years. Such
illegality was subsequently rectified by the respondents themselves
and Bidyut was granted retrospective promotion to the post of AE
with effect from 21st November, 1994 vide order dated 28th March,
2018 with notional benefits. It would be explicit from the memo
dated 15th June, 2018 that Bidyut had fulfilled all conditions for
promotion to the post of Executive Engineer (in short, EE) but such
promotion was illegally withheld on a purported plea that he had
not obtained exemption from passing the departmental examination
being oblivious of the fact that it was an impossibility on the part of
the petitioner to appear in any departmental examination for
promotion to the post of EE in the year 1994 since he was granted
promotion to the feeder post, being the post of AE, by a memo dated
6th August, 2013. In support of the arguments advanced, reliance
has been placed upon the judgments delivered in the case of Union
of India and another -vs- Col.A.D. Nargolkar and Others, reported in
(2019) 13 SCC 723, Gopi Chand Vishnoi -vs- State of UP and
Another, reported in (2006) 9 SCC 694, Devendra Kumar -vs State of
Uttaranchal and Others, reported in (2013) 9 SCC 363.
6. Per contra Mr. Bandopadhyaya, learned advocate appearing
for the State submits that as per the recruitment rules there are
two requirements for promotion to the post of EE. An incumbent is
required to complete six years of service as AE and has to pass the
examination to be conducted by PSC. Bidyut willingly accepted his
promotion to the post of AE in terms of the memo dated 6th August,
2013 knowing fully well that he cannot claim promotion to the post
of EE as he had not passed the departmental examination.
Thereafter he again accepted promotion with retrospective effect
from 1994 knowing fully well that such benefits would not include
exemption from appearing in the departmental examination. He
has to opt to get the benefit of promotion to the post of AE either
from 2013 or from 1994. Such option was granted to him by the
learned Tribunal but he did not act. Law does not permit a person
to both approbate and reprobate. This principle is based on the
doctrine of estoppel by election and a person may be precluded by
his actions or conduct or silence when it is his duty to speak.
7. He argues that it was within the knowledge of Bidyut that
he would not be getting promotion to the post of EE on the basis of
retrospective promotion to the post of AE. However, he did not
agitate the said issue and as such he is estopped from claiming the
benefits pertaining to the post of EE. In support of the arguments
advanced, reliance has been placed upon the judgments delivered
in the case of R.N. Gosain Vs. Yashpal Dhir, reported in (1992) 4
SCC 683, Cauvery Coffee Traders vs- Hornor Resources
(international) Co. Ltd., reported in (2011) 10 SCC 420, Ramchandra
Shankar Jathar -vs- Madhukar Patil, reported in 2002 SCC OnLine
Bom 1167, K.L. Grover -vs- Union of India, reported in (1986) 2 SLR
556 (Del).
8. He further submits that all the judgments cited by Mr. Dhar
are distinguishable on facts since in those cases benefits were
initially denied as departmental proceeding was pending or there
were adverse entries in the service records. It was only after the
proceeding was dropped and the adverse entries were expunged, the
incumbent was granted the benefits but in the instant case Bidyut
was not granted promotion to the post of EE since he did not fulfil
the recruitment criteria.
9. Indisputably, Bidyut was initially granted promotion to the
post of AE vide order dated 6th August, 2013. He accordingly joined
the said post on 26th August, 2013. Subsequently, the respondents
themselves found that Bidyut was entitled to such promotion with
effect from 21st November, 1994 and accordingly he was granted
retrospective promotion vide memo dated 28th March, 2018. It,
thus, emerges that Bidyut's promotion was illegally withheld on and
from 21st November, 1994 to 26th August, 2013. Had Bidyut been
promoted to the post of AE in the year 1994 by an order passed
contemporaneously, the respondents could have insisted that
Bidyut can be given promotion to the post of EE only if he passes
the departmental examination. However, such promotion from
1994 was given by the respondents in the year 2018 and as such it
would be an absurdity to suggest that he was liable to pass the
departmental examination at that relevant period (1994) for not
crossing 52 years of age. In the year 1994 Bidyut was not even an
AE and he could not have passed the examination in anticipation
that he would be granted retrospective promotion to the post of AE
with effect from the year 1994 through issuance of an order in the
year 2018. The respondents having granted such promotion
belatedly cannot now take advantage of their own fault and deny
the fruits of such retrospective promotion to the petitioner. Thus
the exemption as provided in the memo dated 25th August, 2004
squarely applies in respect of the Bidyut. It would also be explicit
from the memo dated 15th June, 2018 that the Chief Engineer
proposed for promotion of Bidyut to the post of EE since he fulfilled
the required criteria including seniority and no vigilance case was
also pending against the petitioner.
10. The respondents, in our opinion, had no jurisdiction to
stop the petitioner's increments with effect from 1st July, 2018 vide
order dated 13th July, 2018 issued by the EE, Burdwan Division on
a purported plea that Bidyut had not been granted exemption from
passing the departmental examination. The learned Tribunal erred
in law in affirming such decision being oblivious of the fact that
there was no requirement to pass any departmental examination for
continuance in the post of AE. The EE, Burdwan Division also had
no jurisdiction to act contrary to the order dated 28th March, 2018
passed by the Special Secretary granting retrospective promotion
and the consequential incremental benefits to the petitioner with
effect from 21st November, 1994.
11. Grant of such retrospective promotion to the post of AE
with effect from 21st November, 1994 does not create or engraft any
legal fiction to the effect that Bidyut cannot get exemption from
participating in the departmental examination as he was liable to
pass the departmental examination at that relevant period for not
crossing 52 years of age. In our opinion, the learned Tribunal
misdirected itself and sought for any option from Bidyut to choose
whether he wants to get the benefit of promotion to the post of AE
from 21st November, 1994 or from 26th August, 2013. Bidyut could
not have been asked to exercise such choice since the respondents
themselves initially granted promotion belatedly from 26th August,
2013 and upon realisation of such mistake granted promotion from
21st November, 1994 by an order dated 28th March, 2018. Bidyut
cannot be held responsible for such irregularity on the part of the
respondents and the respondents cannot take advantage of their
own wrong. The findings of fact, as arrived at by the learned
Tribunal, do not stand supported by the materials on record.
12. It would be explicit from the memo dated 15th June, 2018
that the Chief Engineer proposed for promotion of Bidyut to the
post of EE since he fulfilled the required criteria including seniority.
No vigilance case was also pending against the petitioner. The only
ground on which such promotion was kept in abeyance was that
the Bidyut had not obtained exemption from participating in the
departmental examination. As we have already held such ground
towards denial of promotion to be unsustainable, the consequential
benefits need to be extended. Judiciary has a very strong sense of
justice and it works to maintain social justice and fairness. Equity
regards as done, which should have been done and it would be the
bounden duty of this Court to put an end to the protracted long
agony suffered by the litigant.
13. Fairness and reasonableness are paramount issues for
administrative action. Law is not absolute logic but handmaid of
current social facts of life. As a model employer the State
Government must conduct itself with high probity and candour and
ensure that its employees do not succumb to the procedural
rigmarole particularly when the claim pertains to pensionary
benefits.
14. Accordingly, the impugned order dated 19th June, 2019
passed by the learned West Bengal Administrative Tribunal in OA
659 of 2018 is set aside and quashed. The respondents are
directed to treat Bidyut to have been promoted to the post of EE
with effect from 15th June, 2018 and to notionally re-fix his pay in
the scale of EE and calculate his pensionary benefits and disburse
the same in favour of the heirs of Bidyut, in accordance with law
and subject to compliance of necessary formalities. The actual
benefits shall include gratuity, all arrears of pension with effect
from the date of retirement till the date of demise of Bidyut and also
the benefits of family pension. The entire exercise shall be
completed within a period of eight weeks from the date of
communication of this order.
15. The writ petition being W.P.S.T 109 of 2019 is disposed of.
16. There shall, however, be no order as to costs.
17. Urgent photostat certified copy of this order, if applied for,
be supplied to the parties, upon compliance of all requisite
formalities.
18. All parties shall act on the server copies of this order duly
downloaded from the official website of this Court.
(Hiranmay Bhattacharyya, J.) (Tapabrata Chakraborty, J.)
