Calcutta High Court
Kolkata & Ors vs Sabyasachi Sengupta on 22 May, 2024
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Uday Kumar
APO NO.35 of 2024
with
WPO/1428 of 2023
IA GA 1 of 2024
The Board of Trustees for the Shyama Prasad Mookerjee Port,
Kolkata & Ors.
Vs.
Sabyasachi Sengupta
For the Appellant : Mr. Kishore Datta, Sr. Adv.
Mr. Ashok Kumar Jena, Adv.
For the Respondent : Mr. Soumya Majumder, Adv.
Mr. Nilay Sengupta, Adv.
Mr. Victor Chatterjee, Adv
Hearing concluded on : 14th May, 2024
Judgment on : 22nd May, 2024
Soumen Sen, J.:-
1. The appeal is arising out of an order passed by Justice Rajasekhar
Mantha on 18th January, 2024 in a writ petition in which the writ
petitioner/ respondent has challenged the order passed by the Sr.
Deputy Manager (Administration) Haldia Dock Complex on 30th June,
2023 by which the competent authority approved Shri Indranil Hazra to
be appointed as a Sr. Deputy Manager, under Administration Division.
2. The genesis of the dispute is non-consideration of the Annual
Performance Appraisal Reports (APARs) of the writ petitioner for the last
five years by the Departmental Promotional Committee (DPC) as the
administration had failed to complete the said process in relation to the
writ petitioner. The DPC recommendation of 2018 would show that in
Agusut 2018 a process for promotion for the post of Sr. Deputy Manager,
(Administration) at the Haldia Dock Complex (HDC) of the Kolkata Port
Trust (KoPT) was initiated. The promotional process did not debar the
person already holding the same scale and position from other
department to participate in the promotional process to the post of Sr.
Deputy Manager, (Administration) at the HDC of KoPT. The writ
petitioner although participated in the said process but his candidature
was not considered as his APARs for the last five years and prior thereto
were not prepared by the KoPT.
3. Three candidates in order of merit were found most suitable for
promotion to Senior Deputy Manager (Administration). In order of merit,
they were: a) Indranil Hazra, b) Sasanka Sekhar Pandit and c) Ayan
Kumar Nag in order of merit. Pandit and Nag wre in the feeder post of
Deputy Manager. Hazra was already holding the post of Senior Deputy
Manager in the (P&IR) department. He participated in this process to
switch departments.
4. One of the members of the DPC Shri A.K. Dutta, General Manager (MNS),
in-charge of both the 'Administration' as well as the 'P & IR'
Departments, of the HDC under the Port Trust refused to release Mr.
Hazra.
5. Mr. A.K. Dutta was of the view that Mr. Indranil Hazra who was already
promoted to the same post, that is, Sr. Deputy Manager in P&IR
Department nine months ago is vitally required in the said department
and could not be spared to the Administrative Department as crucial
human resources issues are claimed to be pending at the HDC. As a
result whereof Hazra remained with his parent department i.e. P& IR and
the next best candidate in the panel Sasanka Sekhar Pandit was
thereupon given the post of Sr. Deputy Manger and continued to function
until 2023.
6. The said appointment, in fact, benefited Sasanka Sekhar Pandit. Shri
Indranil Hazra was the casualty. He appears to have been deprived of
such appointment. However, Indranil did not challenge the said decision.
The writ petitioner in the year 2018 filed a writ petition being WPA no.
24593 of 2018 challenging non consideration of his case in the promotion
process for want of the five APARs.
7. The aforesaid writ petition was disposed of on 3rd May, 2023 by the
Hon'ble Justice Lapita Banerjee as her ladyship then was with the
following observation:
"The primary reason for not considering the petitioner 'eligible' for
promotion was the non availability of APARs for the preceding five years
and not only for preceding five years but for preceding ten years.
This Court is of the view that non-completion of available APARs was due
to the inaction on the part of the respondent authorities/officers who were
delegated with responsibility of writing the APARs. No employee should be
penalised/made to suffer, because of inaction on the part of the
respondent authorities/Employer.
This Court also finds that there is arbitrariness and/or capriciousness in
failing to consider the provisions of the office memorandum dated March
10, 1989. Therefore, this Court is of the view that the decision making
process of the authority concerned was perverse and the Impugned order
dated September 10, 2018 is set aside and/or quashed.
Accordingly, the minutes of the meeting dated August 3, 2018 is also set
aside and/or quashed.
The authorities concerned should constitute a Departmental Promotional
Committee (DPC) within three weeks from date, considering the fact that
the petitioner is due to retire in July, 2023. If the petitioner is otherwise
found 'eligible' to be considered for promotion to the post of Senior Deputy
Manager, all the notional benefits that are corresponding to the said post
will be given to the petitioner by fixation of his pay and computation of his
retiral benefits. The fixation of the pay should be done from the date on
which the second empanelled candidate was given the benefits of the
promotional post. The DPC so constituted shall take into account the office
memorandum dated March 10, 1989 for consideration of the petitioner's
case.
The entire exercise is to be concluded by June 30, 2023.
With the directions aforesaid, WPA 24593 of 2018 is disposed of."
(emphasis supplied)
8. This order has been accepted by the appellant. In implementation of the
said order DPC was reconstituted. Following the applicable rules and
assessing the performance of candidates on 2018 afresh, in September
2023 the following persons in order of merit, were found suitable for
promotion.
i) Indranil Hazra
ii) Sabyasachi Sengupta (the writ petitioner)
iii) Sasanka Sekhar Pandit
iv) Ayan Kumar Nag
9. On the basis of the aforesaid assessment it would appear that
Sabyasachi Sengupta, the writ petitioner ought to have been given the
appointment because of his position in the merit list in preference to
Sasanka Sekhar Pandit as Indranil Hazra although was the best
candidate for the post could not join the said post due to a "purely
administrative decision" taken by Mr. A.K. Dutta, General Manager, one
of the Members of the DPC, not to release him for the post of Sr. Deputy
Manager (Administration) at HDC as his service in the P&IR Department
was indispensable. The writ petitioner therefore would become entitled to
the post of Sr. Deputy Manager (Administration) as the 2nd best
candidates.
10. Mr. Kishore Dutta, learned Advocate General appearing on behalf of the
appellants has strenuously contended that the aforesaid office orders
cannot be quashed as Mr. Indranil Hszra has been given appointment on
the basis of the DPC, 2018. The Departmental Promotion Committee, on
both occasions, i.e. in 2018 and 2023, found Shri Indranil Hazra to be
the most suitable candidate. The writ petitioner could not demonstrate
himself to be a better candidate than Shri Indranil Hazra. In paragraph
15 of the judgment under appeal, the learned Single Judge arrived at the
conclusion that since, in 2018, Shri Indranil Hazra was not allowed to
join, the writ petitioner would have become entitled to the post as the
second best candidate. No such case made out or argued by the writ
petitioner. The judgment under appeal amounts to review of the
judgment passed in the first writ petition. The Hon'ble Supreme Court in
the judgment delivered in the case of Union of India v. S.K. Goel,1 has
held that there will ordinarily be no interference by the Courts of Law in
the proceeding and recommendation of the Departmental Promotion
Committee unless such Departmental Promotion Committee meetings are
conducted illegally or in gross violation of Government Instructions or the
Rules or where there is misgrading of confidential reports. No such case
has been made out by the writ petitioner nor such findings have been
arrived at in the judgment under appeal. The said view is reiterated in
Imlikokla Longchar & ors. v. State of Nagaland & Ors.2
2017 (14) SCC 641
2022 SCC OnLine SC 1384
11. We are unable to accept the said submission in view of the facts narrated
above.
12. The fact remains that Mr. Indranil Hazra could not have joined the said post
by reason of the "purely administrative decision" taken in the year 2018 and
he continued in the said post without any demur. It is quite clear that by
reason of non consideration of the performance record (APARs) of the writ
petitioner his case was not considered in the DPC of 2018 and he was
arbitrarily left out. If all the relevant record of the writ petitioner were
available with the DPC then on the basis of the performance and other
criteria Mr. Sengupta would have been placed immediately after Indranil
Hazra. Sasakra Sekhar Pandit is benefited by reason of non consideration of
the APARs of the writ petitioner and for such arbitrary conduct of the
appellants the writ petitioner cannot suffer. The writ petition had challenged
his non-consideration by the DPC immediately and secured in the earlier
proceeding.
13. The case of the writ petitioner accordingly ought to have been considered on
the basis of the revised DPC of 2018. Indranil Hazra was unable to join the
post for the reasons stated above. As on date admitedly Indranil Hazra is no
more in employment of the appellants and the situation existed in 2018 has
remained the same excepting the reason for non-joining by Mr. Hazra is
different.
14. In view thereof we do not find any reason to interfere with the order of the
learned Single Judge.
15. The appeal and the application accordingly stand dismissed.
16. However, there shall be no order as to costs.
I agree (Soumen Sen, J.)
(Uday Kumar, J.)
