AJIT KR. BHUYAN AND OTHERS versus DEBAJIT DAS AND OTHERS on 23 October 2018

SUPREME COURT REPORTS

[2018] 13 S.C.R.

A

AJIT KR. BHUYAN AND OTHERS

v.

DEBAJIT DAS AND OTHERS

(Civil Appeal Nos. 10662 of 2018)

B

OCTOBER 23, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Service Law – Promotion – Manipulation of the system to giveout of turn promotion – Respondent no.1 was appointed as Asstt.Engineer in PWD on 30.09.1996, thereafter, he was promoted toCthe post of Asstt. Executive Engineer in the year 2002 – Subsequently,a post for ex-cadre Executive Engineer was created and respondentno.1 was promoted to the said post by notification dated 02.04.2005– Later, respondent no.1 was granted regular promotion byencadering him as Executive Engineer on recommendation of theDselection committee on 27.07.2005 – It was alleged that there wereonly 10 vacancies for Executive Engineer and the Selection Boardhad wrongly assessed that there were 13 vacancies, and respondentno.1 was favoured and given 13[th] position in select list, after whichhis encadrement was recommended – Writ petition – Single Judgeof the High Court held that encadrement of respondent no.1 to theEpost of Executive Engineer was illegal and respondent no.1 wasguilty of committing fraudulent acts in getting his promotion to thepost of Executive Engineer which was contrary to the Service Rulesas he had not put in minimum of five years of service – Single Judgealso held that the Selection Committee erred in holding the numberFof vacancies as 13 against 10 – Division Bench of High Court setaside the order of the Single Judge and dismissed the writ petitionon the ground of delay and laches – On appeal, held: The findingsof the Single Judge of the High Court were correct – It was a caseof fraud on three counts – First, by creating ex-cadre post ofExecutive Engineer only for respondent no.1 and giving him thatGpost when he was much junior to many others – Second, encadrementof respondent No.1 as Executive Engineer by showing that therewere 13 posts when, in fact, there were only 10 posts of ExecutiveEngineer on that date and that was done with the purpose ofaccommodating respondent no.1 – Third, the promotion was given H

when respondent No.1 was not even eligible as per Rules as he hadnot put in minimum service of 5 years – Fraud cannot be ignoredon the ground that the action challenged was belated and whenthere was a reasonable explanation for such delay – Thus, judgmentof the Single Judge of the High Court restored.

Allowing the appeals, the Court

HELD: 1. It becomes clear from the records that ex-cadrepost of Executive Engineer was created specially for respondentNo.1, which was to remain till the regular promotion of respondentNo.1 as Executive Engineer in the parent cadre. Within threemonths of the aforesaid promotion of respondent No.1 in ex-cadrepost, respondent No. 1 was given regular promotion in the cadre.The manner in which it was done again shows that undue favourwas accorded to him. The Selection Board meeting forencadrement of ex-cadre post held by respondent No.1 was heldon July 27, 2005. Minutes of these meeting are placed on record.It is recorded that probable vacancies in the year 2004 as assessedby the Department are thirteen, which are inclusive of existingvacancy due to the retirement of one officer and twelve vacanciesthat occurred due to the promotion of twelve Executive Engineersto the rank of Superintending Engineers (Civil) during the yearending December 31, 2004. The Minutes also record that theBoard was intimated by the Appointing Authority that theDepartment had given promotion to respondent No.1 asExecutive Engineer (ex-cadre) with the concurrence of theFinance Department. Inter alia, on the aforesaid basis, theSelection Board recommended his encadrement. It was notedthat since there were thirteen vacancies and respondent No.1was at the thirteenth position in the Select List, his encadrementwas recommended. [Paras 19, 20][1023-E-H; 1024-A-B]

2. Two things flow from the aforesaid Minutes, which areas follows: (a) The Board was wrongly informed that there werethirteen vacancies; (b) Respondent No.1 was promoted asAssistant Executive Engineer in the year 2002 and stoodpromoted as Executive Engineer in the year 2005, i.e. withinthree years of his promotion as Assistant Executive Engineer.The extant Rules provide that a person, to be eligible for A

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Apromotion to the post of Executive Engineer, should work for aminimum period of five years as Assistant Executive Engineer.He was, thus, not even eligible for consideration to the post ofExecutive Engineer. It appears that the Selection Board glossedover this fundamental aspect and proceeded on the basis as ifrespondent No.1 was eligible to be considered for promotion. InBspite of aforesaid two glaring defects, which go to the root of thematter, the recommendation of the Selection Board was acceptedand the Government of Assam issued orders dated August 03,2005 promoting various persons, including respondent No.1, tothe rank of Executive Engineer (Civil), PWD. [Para 21]C[1024-C-F]

3. The findings of the Single Judge of the High Court tothe effect that encadrement of respondent No.1 to the post ofExecutive Engineer was illegal not only on the ground that hewas ineligible for consideration, as he had put in only three yearsDof service, but also for the reason that there were only tenvacancies and not thirteen and, therefore, respondent No.1 couldnot be promoted at all, are without blemish. Further, findings ofthe Single Judge that respondent No.1 was guilty of committingfraudulent acts in getting his promotion to the post of ExecutiveEngineer out of turn and contrary to the service Rules are correct.E[Para 22][1024-G-H; 1025-A]

4. The Division Bench has also accepted that calculation ofthirteen vacancies by the Government may also be incorrect.However, this aspect is side tracked by stating that it was a bonafide mistake and not a deliberate one. Fact remains that theFDivision Bench has accepted that thirteen vacancies were not inexistence. Notwithstanding the same, the Division Bench hasnon-suited the appellants only on the ground that writ petitionfiled by the appellants suffered from delays and laches as it wasfiled nine years after the promotion of respondent No.1 and hasGstated that even when respondent No.1 had taken undue favourin getting the promotion, it was not proper to upset the decisionbecause of delay and laches, as also the fact that in the meantimerespondent No.1 has got promotion to the post of SuperintendingEngineer as well. [Paras 23 and 24][1025-D-F]

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5. That apart, there is one more reason for coming to theconclusion that the Division Bench of the High Court was in errorin saving respondent No.1 on the premise that the writ petitionssuffered from delay and laches. In fact, the Association hadsubmitted a representation to the then Chief Minister. Going bythe nature of allegations, the Chief Minister rightly actedthereupon and referred the matter to a Committee which, afterexamining the matter, had also given its report stating that thepromotion of respondent No.1 was against the Rules.This provides reasonable explanation for delay, if any.[Para 27][1026-D-E]

6. It was a case of fraud on three counts. First, by creatingex-cadre post of Executive Engineer only for respondent No.1and giving him that post when he was much junior to many others.Second, encadrement of respondent No.1 as Executive Engineerby showing that there were thirteen posts when, in fact, therewere only ten posts of Executive Engineer on that date. Thiswas done obviously with the purpose of accommodating him.Third, the promotion was given when respondent No.1 was noteven eligible as per Rules as he had not put in minimum serviceof five years. Fraud vitiates every action and cannot be keptunder the carpet on the ground that the action challenged wasbelated, more so when there is a reasonable explanation for suchdelay. [Para 28][1026-F-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10662of 2018

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10662of 2018

From the Judgment and Order dated 07.08.2015 of the GauhatiHigh Court in W.A. No. 138 of 2015.

WITH

Civil Appeal Nos. 10663 and 10664 of 2018.

Mukul Rohatgi, Guru Krishna Kumar, Sr. Advs., Nalin Kohli,Shuvodeep Roy, Ankit Roy, Inderjit Singh, Sayooj Mohandas, SubodhKumar Pathak, Pawan Kumar Sharma, Ms. Pranita Shekhar, ShashiRanjan, Dharmendra Kumar Sinha, V. Shyamohan, Parthiv Goswami,Ms. Palak Mahajan, Ms. Rhea Dube, A. Radhakrishnan, Abis Phukan,Ms. Pooja Dhar, Deepak Grover, Ms. Sonali Jain, Advs. for the appearingparties.

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AThe Judgment of the Court was delivered by

A. K. SIKRI, J. 1. Leave granted.

2. These appeals were heard together and are being disposed ofby this judgment because of commonality of issues therein. The judgmentimpugned is also the same, i.e., judgment dated August 07, 2015 passedBby the High Court of Gauhati.

3. Mr. Debajit Das (respondent No.1 herein) was appointed as anAssistant Engineer in the Public Works Department on September 30,1996 and on completing six years of service he was promoted to thepost of Assistant Executive Engineer in December 2002. Subsequently,Ca post for ex-cadre Executive Engineer was created and he was promotedto the said post vide Notification dated April 02, 2005. Respondent No.1was granted regular promotion by encadering him on the recommendationof the Selection Committee pursuant to its meeting dated July 27, 2005.

4. On October 14, 2014, an inter se seniority list of ExecutiveDEngineers was published and within three days a Selection Committeemeeting was convened for promotion to the post of SuperintendingEngineer. Although the Selection Board proceeded on the basis that therewere thirteen vacancies for the post of Superintending Engineers onthat date, the appellants herein contend that the number of availableEvacancies were only ten (six for the year 2011 and four for the year2014). The appellants have also contended that this increased numberof vacancies was shown only to accommodate respondent No.1 whowas at Serial No. 52 in the seniority list. As per the Selection Committee,however, one Ajit Kr. Kakati was promoted from Superintending Engineerto Assistant Superintending Engineer; one Jiauddin Ahmed had sufferedFthe punishment of compulsory retirement and one Kamkhya PrasadBezbarua was sent on deputation. Thus, three new vacancies arose.With thirteen vacancies, respondent No. 1 was brought within the zoneof consideration and was recommended for promotion to the post ofSuperintending Engineer on October 28, 2014 and the promotion orderwas issued.G

5. Respondent No.11 herein had filed the writ petition being WritPetition (Civil) No. 5470 of 2014 before the Gauhati High Courtchallenging the promotion of respondent No.1 to the post of SuperintendingEngineer. Subsequently, the Assam PWD Engineers Service Associationsubmitted a representation to the Chief Minister of Assam, who byH

endorsement dated November 11, 2014 directed the Additional ChiefSecretary (Personnel Department) to conduct an inquiry into the matterand submit a report. Pursuant thereto, an inquiry was conducted andthe report was forwarded to the Commissioner and Special Secretary tothe Government of Assam (PWD) which mentioned grave irregularitiesand illegalities committed in promoting respondent No.1. Thereafter,the PWD (Confidential Cell), Government of Assam, issued a letter datedDecember 24, 2014 to various officials of the Personnel Departmentinforming them that a Review Selection Board meeting would be heldon January 02, 2015 regarding the promotion to the rank of ExecutiveEngineer (Civil) and Superintending Engineer (Civil).

6. Respondent No.1 also approached the Gauhati High Court byfiling Writ Petition (Civil) No. 5 of 2015. During its pendency, an orderof demotion was passed against respondent No.1 demoting him to theex-cadre post of Executive Engineer.

7. The learned Single Judge of the High Court held that therespondent No.1’s encadrement to the post of Executive Engineer wasillegal. It was also held that the Selection Committee erred in holdingthe number of vacancies as thirteen as against ten. The learned SingleJudge also found respondent No.1 guilty of committing fraudulent actsin getting his promotion to the post of Executive Engineer which wasalso contrary to the Service Rules as he had not put in minimum of fiveyears service. While holding so, the learned Single Judge negatived thecontention of respondent No.1 that the writ petitions filed by the appellantsherein suffered from delay and laches.

8. Aggrieved by the same, respondent No.1 filed the appeal. Videthe impugned judgment dated August 07, 2015, the Division Bench ofthe High Court has set aside the order of the Single Judge therebypermitting respondent No.1 to hold the post of Superintending Engineer(PWD). The appellants, being aggrieved of the same, have filed theinstant appeals.

9. We have heard the learned counsel for the parties. The issuesinvolved in these appeals are: (a) whether the promotion of respondentNo.1 to the ex-cadre post of Executive Engineer, and encadrement thereofsubsequently, is illegal?; (b) whether the delay and laches will come inthe way of appellant No.3 in challenging the order of promotion ofrespondent No.1?; and (c) whether the Government was right in A

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Aconducting an inquiry when the writ petitions were pending before theCourt and whether subsequent demotion of respondent No.1 to the ex-cadre post of Executive Engineer is illegal?

10. The issue pertains to the promotion of respondent No.1 andhis seniority vis-a-vis the three appellants in the appeal arising out ofBSpecial Leave Petition (Civil) No. 25770 of 2015. The other two appealsare by the State of Assam as well as Assam PWD Engineers ServiceAssociation who are supporting the three appellants in the aforesaidappeal. For this reason, they also assailed the impugned judgment datedAugust 07, 2015 of the High Court. However, for the sake ofconvenience, the parties shall be referred to with reference to the appealCarising out of Special Leave Petition (Civil) No. 25770 of 2015, i.e. theappellants and respondent No.1 respectively.

11. Before proceeding further, it would be apt to discuss the mannerin which the Division Bench of the High Court has proceeded with thematter resulting into the aforesaid outcome. After taking note of theDseminal facts which have already been stated above, the High Courtsummarised the findings of the learned Single Judge in the followingmanner:

“(i) The encadrement of the appellant to the post of EE is illegal.As the date when the appellant was promoted from the post ofEAEE to the post of an excadre EE and thereafter within fivemonths when he was encadred to the post of EE he had notcompleted the required five years of qualifying service and thathe had put in only three years of service.

(ii) The learned Single Judge relied on the inquiry report to comeFto the conclusion that the number of vacancy in the cadre of SEon the date when the selection was made was only 10, thereforethe selection committee grossly erred in holding the number ofvacancy as 13 as against 10.

(iii) The learned Single Judge found that the selection made at theGreview DPC and promoting the respondent 11 as SE consequentto the others passed in the enquiry by the government is legal andvalid. The learned Single Judge also found that the appellant hereinis guilty of committing fraudulent acts in getting his promotion tothe post of EE out-of-turn and contrary to the service rules when

he has not put in minimum five years of service the encadrementto the post of EE is not gazetted and that the records wereconcocted to show that the said promotion was said to have beengazetted.

(iv) The learned Single Judge negatived the plea of the appellantthat the inquiry committee has committed gross error in not givinghim an opportunity of hearing before passing the order of hisdemotion.

(v) The learned Single Judge also negatived the contention of theappellant that the writ petitions filed by the respondents sufferfrom delay and laches and held that there was a systematicmanipulation at various stages to which complicity of the appellantcannot be ruled out. In the result the learned Single Judge upheldthe order of the government in demoting the appellant to the postof EE (ex-cadre). The appellant aggrieved by the said order hasfiled this appeal.”

12. Thereafter, the Court took note of the submission of the counselfor respondent No.1 (appellant in the said appeal) and also recorded thecontentions of the Advocate General for the State of Assam and thecounsel for the appellants herein. On the basis of the arguments andcounter arguments noted by it, as well as the subject matter of thecontroversy, the High Court mentioned that seven propositions arise forconsideration. These propositions and answers thereto are given inparagraph 18 of the impugned judgment and we deem it apposite toextract the said paragraph which will give the flavour and essence ofthe judgment of the High Court:

“18. On thoughtful consideration of the rival contentions thefollowing propositions are arising for consideration:

(i) Whether the promotion of the appellant to the post of ex-cadreEE and en-cadre subsequently is illegal and, if it is so, whether thedelay and laches will come in the way of respondent 12 challengingthe order of promotion of the appellant.

The first part of the question is answered in the affirmativeand the second part is in the negative.

(ii) Whether the government was right in conducting an inquirywhen the writ petitions were pending before the Court?

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A The question is answered in the negative.

(iii) Whether the inquiry committee was wrong in breaching theprinciples of natural justice in not giving an opportunity of hearingto the appellant?

The question is answered in the affirmative.B

(iv) Whether the Association has any locus standi in the matter?

The question is answered in the negative.

(v) Whether the findings to the inquiry committee that there areonly 10 vacancies available for promotion to the post of SE andCconsequent to the demotion of the appellant to the post of EE (ex-cadre)?

The question is answered in the affirmative.

(vi) Whether the order of the government in upsetting the orderof promotion of the appellant and reverting him to the post of EE(ex-cadre) is illegal?

D

The question is answered in the affirmative.

(vii) Whether the appellant is entitled to any equities?

As per the final order?”E

13. A glance at the aforesaid questions and answers thereto wouldamply demonstrate that the High Court has affirmed the finding of thelearned Single Judge that the promotion of respondent No.1 herein tothe post of ex-cadre Executive Engineer and his encadrement thereafterwas illegal. The Division Bench of the High Court has also given aFcategorical finding that there were only ten vacancies available forpromotion at that time. However, at the same time, it observed that theorder of the Government in upsetting the promotion of respondent No.1and reverting him to the ex-cadre post of Executive Engineer was illegal.The reason for setting aside the demotion order of respondent No.1, inGspite of specific finding to the effect that calculation of thirteen vacancieswas incorrect and further that respondent No.1 was given undue favourwhile promoting him to the post of Superintending Engineer is capturedin paragraph 26 of the impugned judgment, which is reproduced below:

“26. It may be that the notification of July 1997 which declaresthat if a person overstays on deputation beyond the five years is H

deemed to have been absorbed may be illegal because the personon deputation will have lien in the post in the parent departmentuntil the lien gets terminated and the said post cannot be consideredas vacant, but nonetheless a government order was there andbased on the material the bureaucracy have worked out thevacancy as 13. The government notification of July 1997 wasissued much prior to the dispute in question. Based on the saidnotification when the authorities have worked out the vacancyposition and the PWD Minister has also approved it the Courtshould not expect the bureaucracy to apply the strict judicialstandards and legal acumen in interpreting notifications and theprovisions of law while discharging their duties. Any mistakes onthe part of the bureaucracy in interpretation should be consideredonly as a bona fide error and not as a deliberate mistake. In thatview the calculation of 13 vacancies may be incorrect butconsidering the position today when Kamakhya Bezbaruah isrepatriated there will be still four vacancies of SE available.Therefore there does not appear to be any difficulty for KamakhyaBezbaruah on his repatriation to get back to the post of SE.Therefore we find that in fitness of things it is a case wherealthough the appellant took some undue favour in the year 2005on the ground of delay and laches it is not proper to upset hisposition and also his promotion to the post of SE having beenworked out on the basis that there are 13 vacancies which appearsto be a bona fide mistake. In view of subsequent developmentsnew vacancies of SE have arisen. Kamakhya Bezbaruah who isrepatriated will continue to hold the post of SE and he would besenior to appellant. With the above observations the writ appealis disposed of.”

14. The argument of the appellants, including the State of Assam,is that even when the Division Bench concurred with the findings of thelearned Single Judge that it was a case of total favouritism shown torespondent No.1 in giving him promotion to the ex-cadre post in the firstinstance and thereafter encadring him and the same were found to becontrary to the Rules; the writ petitions of the appellants were dismissedon the purported ground of delays and laches.

15. Mr. Nalin Kohli, learned counsel who appeared for the Stateof Assam, gave the following details to show that respondent No.1 was AB

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Amuch junior to the three appellants and still allowed to stealmarch overthem, which was cearly impermissible:

PartyAssistantAssistantExecutiveEngineerExecutiveEngineerEngineerBAppellant No.1 1980 1989 2002 Appellant No.2198119882002Appellant No.319921999Yet to be promotedRespondent No.1 1996 2002 2005 C(within 3 years, as per Rule it has to be 5 years)

He submitted that the learned Single Judge of the High Court had,Dtherefore, rightly interfered with the orders of promotion and encadrementof respondent No.1, which was upset by the Division Bench on spaciousgrounds.

16. The reply of Mr. Mukul Rohatgi, learned senior counselappearing for respondent No.1, was that the course of action adoptedEby the Division Bench was quite reasonable and equitable. He submittedthat the promotion was given to respondent No.1 as Executive Engineerway back in the year 2005 against an ex-cadre post. Thereafter, he wasencadred also in the same year. Respondent No.1, thus, had been workingon this post since 2005. Thereafter, he stood promoted as SuperintendingEngineer with effect from October 17, 2014. It would, therefore, beFunjust to upset the applecart.

17. For appropriately dealing with the contentions of the counselfor the parties, it would be necessary to traverse through the documentsvide which respondent No.1 was given the aforesaid benefits.

18. Record shows that the Government of Assam created an ex-Gcadre post of Executive Engineer (PWD), which fact was informed tothe Accountant General (A&D), Assam, vide communication dated April02, 2005. This letter mentions that the Governor of Assam has sanctionedthe creation of one post of ex-cadre Executive Engineer from the dateof the issue of the letter, i.e. April 02, 2005, for a period up to February H

28, 2006. It was also stated that beyond February 28, 2006, PWD wouldmove for further retention of this post, if necessary, with name of theincumbent. It was subject to the following conditions which werecontained in the said letter itself:

“1. The ex-cadre post of OSD to Chief Minister in the rank ofExecutive Engineer, PWD will be personal to Sri Debajit Das.

2. The ex-cadre post of OSD to Chief Minister in the rank ofExecutive Engineer, PWD shall Stand abolished as soon as SriDebajit Das get regular promotion as Executive Engineer, PWDin the parent cadre.

3. Beyond 28-02-2006, Public Works Department will move forfurther retention of this post, if necessary, with name of theincumbent.

Meanwhile, Public Works Department is advised to initiate theprocess of regular promotion from Asstt. Executive Engineer toExecutive Engineer.

Sd/-

Under Secretary

Finance (EC-II) Department”

19. It becomes clear from the aforesaid that this ex-cadre postwas created specially for respondent No.1, which was to remain till theregular promotion of respondent No.1 as Executive Engineer in the parentcadre. It was nothing but an act of favouritism. Pertinently, respondentNo.1 was attached with the Chief Minister as an Officer on SpecialDuty at that time. It is also relevant to note that though appellant Nos. 1and 2 had already stood promoted as Executive Engineers (who werepromoted in the year 2002), appellant No.3 was yet to be promoted.They were, thus, much senior to respondent No.1.

20. Within three months of the aforesaid promotion of respondentNo.1 in ex-cadre post, respondent No.1 was given regular promotion inthe cadre. The manner in which it was done again shows that unduefavour was accorded to him. The Selection Board meeting forencadrement of ex-cadre post held by respondent No.1 was held onJuly 27, 2005. Minutes of these meeting are placed on record. It isrecorded that probable vacancies in the year 2004 as assessed by theDepartment are thirteen, which are inclusive of existing vacancy due to A

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Athe retirement of one officer and twelve vacancies that occurred due tothe promotion of twelve Executive Engineers to the rank of SuperintendingEngineers (Civil) during the year ending December 31, 2004. The Minutesalso record that the Board was intimated by the Appointing Authoritythat the Department had given promotion to respondent No.1 as ExecutiveEngineer (ex-cadre) with the concurrence of the Finance Department.BInter alia, on the aforesaid basis, the Selection Board recommended hisencadrement. It was noted that since there were thirteen vacanciesand respondent No.1 was at the thirteenth position in the Select List, hisencadrement was recommended.

21. Two things flow from the aforesaid Minutes, which are asCfollows:

(a) The Board was wrongly informed that there were thirteenvacancies.

(b) Respondent No.1 was promoted as Assistant ExecutiveDEngineer in the year 2002 and stood promoted as ExecutiveEngineer in the year 2005, i.e. within three years of his promotionas Assistant Executive Engineer. The extant Rules provide that aperson, to be eligible for promotion to the post of ExecutiveEngineer, should work for a minimum period of five years asAssistant Executive Engineer. He was, thus, not even eligible forEconsideration to the post of Executive Engineer. It appears thatthe Selection Board glossed over this fundamental aspect andproceeded on the basis as if respondent No.1 was eligible to beconsidered for promotion.

In spite of aforesaid two glaring defects, which go to the rootFof the matter, the recommendation of the Selection Board wasaccepted and the Government of Assam issued orders datedAugust 03, 2005 promoting various persons, including respondentNo.1, to the rank of Executive Engineer (Civil), PWD.

22. We, thus, find that the findings of the learned Single Judge toGthe effect that encadrement of respondent No.1 to the post of ExecutiveEngineer was illegal not only on the ground that he was ineligible forconsideration, as he had put in only three years of service, but also forthe reason that there were only ten vacancies and not thirteen and,therefore, respondent No.1 could not be promoted at all, are withoutblemish. We are also in agreement with the findings of the learnedH

Single Judge that respondent No.1 was guilty of committing fraudulentacts in getting his promotion to the post of Executive Engineer out ofturn and contrary to the service Rules. Even the Division Bench, in theimpugned judgment, accepted the aforesaid position in paragraph 20 ofits judgment, which reads as under:

“20) It is no doubt that the promotion of the appellant to the postof EE (encadre) and consequent encadrement is contrary to theservice rules, since he had not put in the required service of fiveyears to be eligible to the promotion to the post of EE. Thecondition in the promotion order that the officer “over the post soencadred” should be in the lowest position till the senior categorycomes to the position appears to be an untenable condition thatcould be attached to the promotion under the service rules. Thereappears to be compounded illegalities. The promotion may beillegal. So much so the conditions stipulated is also illegal.Promotions have to be granted according to the service rules.”

23. Interestingly, the Division Bench has also accepted thatcalculation of thirteen vacancies by the Government may also be incorrect.However, this aspect is side tracked by stating that it was a bona fidemistake and not a deliberate one. Fact remains that the Division Benchhas accepted that thirteen vacancies were not in existence.

24. Notwithstanding the same, the Division Bench has non-suitedthe appellants only on the ground that writ petition filed by the appellantssuffered from delays and laches as it was filed nine years after thepromotion of respondent No.1 and has stated that even when respondentNo.1 had taken undue favour in getting the promotion, it was not properto upset the decision because of delay and laches, as also the fact that inthe meantime respondent No.1 has got promotion to the post ofSuperintending Engineer as well.

25. It, therefore, needs to be considered as to whether the orderof the learned Single Judge warranted interference thereby denying therelief to the appellants on the ground that their writ petition sufferedfrom delays and laches.

26. Having regard to the circumstances in which respondent No.1was given promotion to the post of Executive Engineer by creating anex-cadre post and thereafter the manner in which he was encadred tothe said post by stretching the number of vacancies against the record, A

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Aspeaks volumes about the manner in which undue favour was shown torespondent No.1. One has to keep in mind that at that time he wasworking as Officer on Special Duty to the Chief Minister. These factsreflect clear manipulation of the system at various stages to give out ofturn promotion to respondent No.1 by bestowing undue favour. Withsuch ‘flyover promotions’, respondent No.1 parachuted from AssistantBExecutive Engineer to Superintending Engineer by bypassing many seniorcolleagues in the cadre of Assistant Executive Engineer who are stillstagnating in the same cadre. When this factual position emerged onrecord and was duly approved by the Division Bench as well, we are ofthe opinion that the writ petition could not be dismissed on the ground ofCdelay and laches. In fact, the Division Bench has erred in invoking thisprinciple by dubbing the entire exercise as a bona fide error. Whathappened cannot be termed as ‘bona fide’. It was a clear case offavouritism shown to respondent No.1 and the actions were contrary toRules.

D27. That apart, there is one more reason for coming to the conclusionthat the Division Bench of the High Court was in error in savingrespondent No.1 on the premise that the writ petitions suffered fromdelay and laches. In fact, the Association had submitted a representationto the then Chief Minister. Going by the nature of allegations, the ChiefMinister rightly acted thereupon and referred the matter to a CommitteeEwhich, after examining the matter, had also given its report stating thatthe promotion of respondent No.1 was against the Rules. This providesreasonable explanation for delay, if any.

28. We are of the opinion that it was virtually a case of fraud, atleast on three counts. First, by creating ex-cadre post of ExecutiveFEngineer only for respondent No.1 and giving him that post when hewas much junior to many others. Second, encadrement of respondentNo.1 as Executive Engineer by showing that there were thirteen postswhen, in fact, there were only ten posts of Executive Engineer on thatdate. This was done obviously with the purpose of accommodating him.GThird, the promotion was given when respondent No.1 was not eveneligible as per Rules as he had not put in minimum service of five years.Fraud vitiates every action and cannot be kept under the carpet on theground that the action challenged was belated, more so when there is areasonable explanation for such delay.

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29. We, accordingly allow these appeals, set aside the impugnedjudgment dated August 07, 2015 of the Division Bench of the High Courtand restore the judgment of the learned Single Judge.

No order as to costs.

Ankit Gyan

Appeals allowed.

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