Mrs. Ballari Sarkar vs Damodar Valley Corporation & Ors
2023 Latest Caselaw 6811 Cal

                                     1




              IN THE HIGH COURT AT CALCUTTA

           (CONSTITUTIONAL WRIT JURISDICTION)

                          APPELLATE SIDE

Present:

The Hon'ble Justice Partha Sarathi Chatterjee


                          WPA 10297 of 2021

                         Mrs. Ballari Sarkar
                                -Vs.-
               Damodar Valley Corporation & Ors.



For the Petitioners          : Mr. Sirsanya Bandopadhyay
                               Mr. Arka Kumar Nag
                              Mr. Rahul Kumar Singh

For the Respondents           :Mr. Ranjay De

Mr. Basabjit Banerjee

Heard on : 04.09.2023

Judgment on : 06.10.2023

Partha Sarathi Chatterjee, J:-

1. In invocation of the jurisdiction of this Court under Article 226 of the

Constitution of India, the petitioner questions the defensibility of the

letter vide. no. CAO/P&A/A/S-4990(BS)/DSTPS- 1104 dated 21st February,

2018 which was prepared as per the revised Fixation of Pay, being no. A/S-

4990-335 dated 31st August, 2017 (Annexure-P/6 to the writ petition) and

the memo. being no. CAO/P&A/A/S-4990(BS)/DSTPS-566 dated 17th

September, 2018(Annexure-P/7) and prays for direction upon the

respondent nos.2 to 7 to re-designate the petitioner as Deputy Director of

Personnel (M-3 level) w.e.f. 23.08.1998 and as Joint Director of Personnel

(M-4 level) w.e.f. 23.08.2005.

2. Sans unnecessary details, the necessitous facts as unfurled in the writ

petition are that in response to an advertisement, the petitioner offered

her candidature for the post of Management Trainee in Damodar Valley

Corporation (hereinafter referred to as the Corporation) and participated

in the selection process. The petitioner emerged to be a successful

candidate in written test and hence, she was called upon to appear in the

interview. Since the petitioner prosecuted one year Post Graduate

Diploma Course in Management, the interview committee referred the

petitioner‟s case to the General Manager. The General Manager proposed

for approval of her appointment with an opinion that the petitioner did not

suppress the fact. Such proposal of the General Manager was approved by

the Chairman, respondent no. 2 and the petitioner was offered

appointment in the post.

3. Consequently, the petitioner joined in the Corporation as a Management

Trainee in the Gr.-A executive scale on 7.9.1989 and after completion of

training, she was appointed as Personnel Officer (M-1 level) from

September, 1990. After succeeding in written test, she was promoted to

the post of Assistant Director (Personnel)(M-2 Level) w.e.f. 23.08.1993.

4. On 17th July, 1996, the petitioner was served a charge-sheet on the

allegation that she had misled the Corporation by not disclosing that she

had completed only one year Management Diploma Course. The petitioner

assailed the charge-sheet by preferring a writ petition being C.O. no.

10626(W) of 1996. During pendency of the writ petition, another

promotion of the petitioner to the post of Deputy Director of Personnel

(HR)(M-3 Level) fell due in 1998. The respondents decided to adopt a

sealed cover procedure in respect of such promotion of the petitioner.

5. By an order dated 2nd February, 1999, the writ petition was disposed of.

The charge-sheet was quashed and a direction was given to the

respondents to complete the sealed cover procedure and give effect to the

promotion. The respondents carried the order dated 2.2.1999 in an intra-

court appeal being M.A. no. 2528 of 2005 which was dismissed by an order

dated 28.07.2009.

6. The respective minimum time periods for re-designation from M-2 level to

M-3 level and from M-3 level to M-4 level were 5 years and 7 years

respectively. The petitioner was promoted to post of M-2 level i.e. to the

post of Asst. Director of Personnel on 23.08. 1993 and hence, her re-

designation to the M-3 level i.e. to the post of Deputy Director of Personnel

fell due on 23.08.1998 and similarly, her re-designation to Joint Director of

Personnel (M-4 level) fell due on 23.08.2005.

7. From a letter vide. no. CAO/P&A/A/S-4990(BS)/DSTPS-1104 dated 21st

February, 2018, the petitioner came to learn that her re-designations

from M-2 level to M-3 level and from M-3 level to M-4 level were deferred

for two years i.e. from 23.9.1998 to 23.8.2000 and from 23.8.2005 to

23.8.2007 respectively. In the letter dated 21.2.2018, a reference was made

to a revised Pay Authorisation Statement which was prepared as per

revised fixation of pay being no. A/s-4990-335 dated 31.08.2017 and issued

in terms of HRD‟s office order dated 27.2.2014.

8. By making a communication dated 21.6.2018, the petitioner requested the

concerned respondent to rectify the error but in vain. On 17.9.2018, she

received one memo. vide. no. CAO/P&A/A/S-4990(BS)/DSTPS-566 dated

17th September, 2018 wherein it was alleged that the petitioner was

drawing excess pay and allowances to the tune of Rs. 1,72,319/- and Rs.

2,27,253/- from 1.10.2013 to 31.5.2017 and also from 1.1.2007 to 30.9.2013

respectively. By a further communication dated 18.9.2018, the petitioner

ventilated her grievance regarding the receipt of reduced salary and by

the same communication she renewed her prayer for rectification of the

errors crept in due to erroneous re-designations but to no avail.

9. By a memo. vide. dated 25.10.2018, the petitioner was informed that her

re-designation was in order and hence, by giving two representations

dated 31.10.2018 and 5.1.2019, she sought for clarification for her delayed

re-designation. Lastly, from a communication made by respondent no. 6

vide. dated 16.10.2019, the petitioner came to learn that her re-

designations were deferred for the reason that her final grading in Annual

Performance Appraisal Reports (in short, APAR) for the years 1995-96 and

1996-97 were „Satisfactory‟ i.e. below the benchmark of „Good‟ since as per

clause 11 of the Office Memo.(OM) on UCP dated 9.8.2007, re-designation

period would be deferred by an equivalent period for which ACRs were

adverse and since as per the OM vide. no. Pl-Con/22-CR-1735 dated

31.8.2006, only the adverse entries were required to be communicated to

an assessee, such final grading had not been brought to the notice of the

petitioner. By a further communication dated 7.12.2019, the petitioner

gave a reminder to the respondent no.4 that 2 ACRs during the relevant

period were expunged by the then Secretary of the Corporation and by the

same communication, she raised objection against the application of the

OM dated 31.8.2006 retrospectively but till date, the respondents did not

response to the communication dated 7.12.2019.

10. The Corporation passed an order dated 22.4.2013 to hinder the seniority of

the petitioner and other identically circumstanced employees which

adversely affected their pay and hence, the order dated 22.4.2013 was

challenged by one R.P.Singh and some other employees in a writ petition

being W.P. no. 23066(W) of 2014 which is awaiting for final adjudication.

11. After rendering service to the Corporation for almost 32 years without any

blemish, the petitioner was due to retire in May, 2021. According to the

petitioner, she was deprived of her promotion to the post of M-5 and even

M-6 level and she claimed that she was a victim of bias and her re-

designations were deferred arbitrarily. The grading made and/or given in

her APAR were not communicated with a mala fide attitude. She has been

forced to draw reduced salary and even, she has been asked to pay certain

amounts claimed to have been overdrawn by her. In such chronological

events, the petitioner has been constrained to prefer the instant writ

petition. The parties exchanged their affidavits, as directed.

12. Mr. Bandyopadhyay, learned advocate representing the petitioner submits

that during pendency of the writ petition, the petitioner has retired from

service. He contends that the petitioner‟s re-designations from M-2 level to

M-3 level and from M-3 level to M-4 were deferred for two years i.e. from

23.8.1998 to 23.8.2000 and from 23.8.2005 to 23.8.2007 respectively on the

ground that her final grading in APAR for the years 1995-96 and 1996-97

were „Satisfactory‟ i.e. below the benchmark of „Good‟. He contends that

the cause behind such deferment of re-designation was informed to the

petitioner by respondent no. 6 through a communication dated 16.10.2019.

13. Mr. Bandyopadhyay further submits that in the affidavit-in-opposition the

respondents took the plea that as per OM dated 31.8.2006, the

respondents were required to inform only the adverse entry to the

employee and not the final grading. The performances of the petitioner for

those two years was finally graded as „Satisfactory‟ and hence, such final

grading had not been communicated. He vociferously contends that the

respondents cannot give retrospective effect to the OM dated 31.8.2006.

According to him, the final grading had adverse effect on the service

career of the petitioner and hence, the respondents were bound to

communicate such grading to the petitioner.

14. Drawing my attention to the APAR for the years 1995-96 and 1996-97

(pages 108 and 117 to the affidavit-in-opposition), he contends that in the

first APAR, the Reporting officer and the Reviewing Officer awarded 5 and

6 respectively whereas in the second APAR, the Reporting officer and the

Reviewing Officer awarded 6 and 5 respectively. He strenuously contends

that in the first case, assessment of Reporting Officer and in the second

case, assessment of Reviewing officer had been accepted and hence, a

different yardstick was applied in two cases which speaks about bias mind

of the respondents.

15. He contends that had the adverse grading been communicated to the

petitioner, she could have made representations in due time and the

petitioner might get her grievances redressed. By suppressing such

grading, the respondents tried to render the petitioner remediless. He

submits that the rights which had accrued to the petitioner cannot be

taken away by giving retrospective effect to any Office Memorandum

(OM). According to him, grading must be communicated to the employee

by a model employer and if not communicated, the employer shall be

debarred from giving effect to such grading. He submits that such final

grading should be declared void and direction may be given to re-fix the

dates of petitioner‟s re-designations and further direction may be given to

re-fix the pay of the petitioner and recall the orders by which the

petitioner was asked to deposit certain amounts of money. To invigorate

his submission, he places reliance upon the judgments delivered in cases

of Dev Dutt -vs- Union of India & Ors. ,reported in (2008) 8 SCC 725,

Abhijit Ghosh Dastidar -vs- Union of India & Ors. ,reported in (2009) 16

SCC 146, Sukhdev Singh -vs- Union of India & Ors. ,reported in (2013) 9

SCC 566 & Bank of Baroda & Anr. -vs- G.Palani & Ors. ,reported in

(2022) 5 SCC 612.

16. In response, Mr. Bose, learned advocate appearing for the Corporation

submits that after enjoying a lump sum salary for years, just few days

before her retirement, the petitioner has preferred this writ petition. Final

grading in APAR for the years 1995-96 and 1996-97 were communicated to

the petitioner in 2019 but the petitioner has instituted this writ petition

only in 2021 and the delay in preferring the writ petition has not been

explained. He submits that if at this stage, such final grading is disturbed,

seniority of many employees will be disturbed and pay of many employees

are to be re-fixed and hence, in such case, the court would be slow in

interfering in the matter of like nature.

17. Mr. Bose contends that it was the policy decision of the corporation that

only adverse entry would be communicated to its employees and not the

final grading. According to him, the writ court should not interfere with

such policy decision and the writ court cannot direct the Corporation to act

contrary to its policies. In his view, the Corporation cannot be asked to act

contrary to its own office orders, circulars, rules and regulations. He

submits that writ court cannot re-assess the performance of the petitioner.

18. He submits that as per the Office Memo. of 2006, only the adverse entry

and/or remarks were required to be communicated to the employees and

drawing my attention to the APARs, he contends that „Satisfactory‟ was

final grading and there were no adverse remarks and/or entry in the

APAR and hence, the Corporation did not commit any error in not

communicating such final grading to the petitioner.

19. He distinguished the judgment of Dev Dutt(supra) saying that

ratiocination of the such judgment was applicable for the public servant

only and not for the employees of the Corporation. Drawing my attention

to the relevant extract of R.Ramanatha Aiyar‟s Advance Law Lexicon, he

submits that the expression „Public Service‟, as defined in the Law lexicon,

means anything done for the service of the public in any part of the

country in relation to the affairs of the Union or the State. In elaboration

of his submission, he contends that by reason of a fact that a commercial

undertaking is owned and ran by the State, it does not ispo facto become a

„public service‟. He contends that the Corporation is a profit-making body

and hence, its employees cannot be stated to be the public servant. To

lend support to his such contention, he places reliance upon a judgment

delivered in case of Satya Narain Singh -vs- District Egineer, PWD Ballia

& Anr., reported in AIR 1962 SC 1161. He further submits that the

employees of the Corporation can also not be treated to be a public servant

within the meaning of S.21 of Indian Penal Code and S. 197 of the Code of

Criminal Procedure, 1973. He submits that judgments pronounced basing

upon the ratio of Dev Dutt(supra), as referred by Mr. Bandyopadhyay,

shall not come in aid of the petitioner. He cites a decision rendered in case

of Commissioner of Central Excise, Bangalore -vs- Srikumar Agencies and

Ors., reported in (2009)1 SCC 469 for the proposition that the disposal of

cases by blindly placing reliance on a decision is not proper. He submits

that one additional or different fact may make a world difference between

two cases and even a single significant detail may alter the entire aspect.

He contends that the petitioner has failed to make out a case that she was

prejudiced due to non-communication of her final grading. He submits

that mere plea of violation of natural justice is enough, the person

claiming such violation is to show that he/she has been prejudiced due to

such violation and in support of his such contention, he places reliance

upon the judgment delivered in case of State of U.P. -vs- Sudhir Kumar

Singh & Ors., reported in 2020 SCC online SC 847. He submits that the

court cannot direct that final grading of the petitioner would be done

afresh and he contends that the petitioner cannot get any relief on this

writ petition. To embolden his submission, he places reliance upon the

judgments delivered in cases of Punjab State Warehousing Corporation -

vs- Bhushan Chander and Anr. reported in (2016) 13 SCC 44 and Rachna

& Ors. -vs- Union of India & Ors. reported in (2021) 5 SCC 638.

20. In reply, Mr. Bandyopadhyay submits that no period of limitation has

been prescribed for preferring a writ petition. By placing reliance upon a

judgment delivered in case of State of Rajasthan -vs- O.P.Gupta reported

in 2022 SCC OnLine SC 1248, he submits that writ court can refuse to

entertain the writ petition where there is gross delay on the part of the

writ petition and where the relief, if granted, would unsettle the things,

which are already settled. He contends that the fact of final grading was

communicated to the petitioner in 2019 and due of Covid-19, normal

function of the court was disrupted in between 2020 and 2021 yet the

petitioner has filed the writ petition in 2021 and hence, here, it cannot be

claimed that there was gross delay. Drawing my attention to the judgment

of Dev Dutt (supra), he asserts that this judgment applies to the

employees of the Corporation and he asserts that as per the judgment of

Abhijit Ghosh Dostidar(supra), case of retrospective promotion of the

petitioner can be directed to be considered.

21. Admittedly, there is no time-frame provided under the Constitution of

India within which a writ petition ought to be filed in the High Court.

However, the party aggrieved must move the court at the earliest possible

time and explain satisfactorily all semblance of delay. The High Courts

generally refuse to invoke its extraordinary powers if there is inordinate,

unreasonable and unexplained delay on the part of the applicant in

approaching the writ court. Now, an important question arises is what is

the reasonable time for filing writ petition. On principle, the court cannot

lay down any outer period of limitation, because that is a legislative and

not a judicial function. Basically, so far as the question of delay is

concerned, no hard and fast rule can be laid down and it will depend on

the facts of each case. Generally, in addition to taking into consideration of

the other related factors the court shall see as to whether by reason of

delay such a position has been created that exercise of discretion would

unsettle the long-standing settled matters which cause prejudice to other

party.

22. In the case at hand, admittedly, only in 2019, the petitioner was informed

about the cause behind deferment of her re-designation and she has

approached the writ court in 2021. In 2020, normal function of the court

was disrupted due to covid-19 pandemic. The Hon‟ble Supreme Court was

pleased to direct that the period commencing from 15th March, 2020 to 28th

February, 2022 shall be excluded for the purpose of limitation. So, it

cannot be held that the petitioner caused inordinate delay in approaching

the court and the delay caused up to 2019 cannot be attributed to the

petitioner.

23. From the letter vide.no. PL-Misc./Con-1093 dated 16.10.2019 (Annexure-

P/12 to the writ petition), it transpired that as per Office

Memorandum(OM) being no. PL-Con/22-CR-1735 dated 31.08.2006, final

grading given in the APAR of 1995-96 and 1996-97 were not informed to

the petitioner since, according to the respondent no.1, those final grading

were not adverse entry and/or remark.

24. So, it is clear as day that the respondent no. 1 has given retrospective

effect to the OM dated 31.08.2006. Mr. Bose argues that this was policy

decision of the Corporation but even it is assumed that such decision is

policy of the Corporation yet it is not clear as to how such policy decision

can be adopted retrospectively. Actually, the Corporation desperately tried

to defend its omission to communicate the final grading taking recourse to

the OM dated 31.08.2006.

25. In the judgment of Dev Dutt (supra), the Hon‟ble Supreme Court was

pleased to hold as follows:-

" .. even though there may no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government order.

.... When the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period."

26. In the judgment of Dev Dutt (supra), it was further held that direction for

communication of all entries in annual confidential report will apply to

employees of statutory authorities, public sector corporations and other

instrumentalities of the State( in addition to government servants).

27. So, the submission of Mr. Bose that judgment of Dev Dutta (supra) does

not apply to the employees of the Corporation cannot be accepted. Placing

reliance upon the judgment of State of UP -vs- Sudhir Kumar Singh &

Ors.(supra) Mr. Bose submits that infraction of principle of natural justice

will not invalidate the order of the Corporation since no prejudice was

caused to the petitioner.

28. Indisputably, due to final grading in APAR of 1995-96 and 1996-97, the

petitioner‟s re-designations were deferred. The bench mark for such re-

designation was „Good‟ but the entries of „Satisfactory‟ in APARs were not

communicated to the petitioner and admittedly, for such final grading the

petitioner did not get promotion in due time and in consequence, she drew

reduced salary and lost other benefits and hence, the corporation cannot

be permitted to take the plea that the petitioner has not been prejudiced.

As per the judgment of Dev Dutt (supra) such non-communication is

arbitrary and as such, violative of Article 14 of the Constitution of India.

29. Now, the primal question is despite of such arbitrary action of the

respondents, whether the Court shall restrain itself from passing

appropriate orders considering that it may unsettle some settled things!

Settled principle is that the writ court shall stretch its long arm to reach

the injustice wherever it is found. Article 226 of the Constitution confers

extraordinary jurisdiction on the High Court to issue prerogative writs for

enforcement or fundamental rights or for any other purposes. The

jurisdiction, though is to be based on discretion and equitable

considerations, is wide and expansive with no fetters having been placed

on the exercise of this extraordinary jurisdiction. The High Court in

exercise jurisdiction under Article 226 can even mould the relief or reliefs

to meet the peculiar and complicated requirements of the country.

30. Since following the ratiocination of the judgement of Dev Dutt (supra), it

has been held that fundamental rights of the petitioner enshrined under

Article 14 have been violated, it would be unjust for the Court to restrain

itself from exercise its powers to grant equitable relief to the petitioner on

a consideration that it can unsettled some settled things. As the final

grading of APARs for the years 1995-96 and 1996-97 had not been

communicated to the petitioner, the petitioner had been deprived of her

right of making representation against such grading and hence, it would

not be apposite to permit the respondents to give effect to such final

grading. Consequently, the deferment of re-designations from M-2 level to

M-3 level and from M-3 level to M-4 level basing upon such grading cannot

be sustained.

31. There is no scintilla of doubt regarding binding effects of the propositions

of law laid down in the judgments relied upon by Mr. Bose but those are

distinguishable on facts.

32. In case of Abhijit Ghosh Dostidar (supra), the appellant had retired for

service and hence, he had not been allowed to enjoy any pay or allowances

for the period for which he had not worked in the Higher Administrative

Grade Group-A but his promotion was directed to be considered for the

purpose of re-fixation of his pension and other benefits.

33. In such sequence of facts and enunciation of law, it is held that the

deferment of the petitioner‟s re-designations from M-2 level to M-3 level

and from M-3 level to M-4 level are bad in law and cannot be allowed to

stand. The petitioner shall not be entitled to any pay or allowances for the

period for which she had not worked in M-3 level and in M-4 level but she

shall be treated to have been re-designated to M-3 level and M-4 level on

23.08.1993 and 23.08.2005 respectively for the benefits of re-fixation of her

pension and other retiral benefits as per rules. Such re-fixation must be

made within 3(three) months from the date of receipt of a copy of this

order. The Memo. vide. no. CAO/P&A/A/S-4990(BS)/DSTPS- 1104 dated

21st February, 2018 which was prepared as per the revised Fixation of

Pay, being no. A/S-4990-335 dated 31st August, 2017 (Annexure-P/6 to the

writ petition) and the Memo. being no. CAO/P&A/A/S-4990(BS)/DSTPS-

566 dated 17th September, 2018(Annexure-P/7) are set aside.

34. The respondent nos.2 to 7 shall calculate as to whether after re-fixation of

the petitioner‟s retiral benefits in term of this order, there shall be any

amount to be recovered from the petitioner. It is further clarified that

after such re-fixation of petitioner‟s retiral benefits, if any amount is found

to be still recoverable, the respondents shall take necessary steps to

recover the same in accordance with law but if it is found that any amount

is required to be disbursed in favour of the petitioner, the respondent nos.

2 to 7 shall release such amount in favour of the petitioner within 2(two)

months from the date of such re-fixation.

35. With these observation and order, the writ petition being WPA 10297 of

2021 is, thus, disposed of, however, without any order as to the costs.

36. Parties shall be entitled to act on the basis of a server copy of this

Judgement and Order placed on the official website of the Court.

37. Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Partha Sarathi Chatterjee, J.)