AJIT KR. BHUYAN AND OTHERSversusDEBAJIT DAS AND OTHERS

1012                     [2018] 13
                SUPREME COURT      S.C.R. 1012
                                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 give
       out of turn promotion – Respondent no.1 was appointed as Asstt.
       Engineer in PWD on 30.09.1996, thereafter, he was promoted to
 C
       the post of Asstt. Executive Engineer in the year 2002 – Subsequently,
       a post for ex-cadre Executive Engineer was created and respondent
       no.1 was promoted to the said post by notification dated 02.04.2005
       – Later, respondent no.1 was granted regular promotion by
       encadering him as Executive Engineer on recommendation of the
 D     selection committee on 27.07.2005 – It was alleged that there were
       only 10 vacancies for Executive Engineer and the Selection Board
       had wrongly assessed that there were 13 vacancies, and respondent
       no.1 was favoured and given 13th position in select list, after which
       his encadrement was recommended – Writ petition – Single Judge
       of the High Court held that encadrement of respondent no.1 to the
 E
       post of Executive Engineer was illegal and respondent no.1 was
       guilty of committing fraudulent acts in getting his promotion to the
       post of Executive Engineer which was contrary to the Service Rules
       as he had not put in minimum of five years of service – Single Judge
       also held that the Selection Committee erred in holding the number
 F     of vacancies as 13 against 10 – Division Bench of High Court set
       aside the order of the Single Judge and dismissed the writ petition
       on the ground of delay and laches – On appeal, held: The findings
       of the Single Judge of the High Court were correct – It was a case
       of fraud on three counts – First, by creating ex-cadre post of
       Executive Engineer only for respondent no.1 and giving him that
 G
       post when he was much junior to many others – Second, encadrement
       of respondent No.1 as Executive Engineer by showing that there
       were 13 posts when, in fact, there were only 10 posts of Executive
       Engineer on that date and that was done with the purpose of
       accommodating respondent no.1 – Third, the promotion was given
 H
                                     1012
              AJIT KR. BHUYAN v. DEBAJIT DAS                          1013


when respondent No.1 was not even eligible as per Rules as he had     A
not put in minimum service of 5 years – Fraud cannot be ignored
on the ground that the action challenged was belated and when
there was a reasonable explanation for such delay – Thus, judgment
of the Single Judge of the High Court restored.
      Allowing the appeals, the Court                                 B
       HELD: 1. It becomes clear from the records that ex-cadre
post of Executive Engineer was created specially for respondent
No.1, which was to remain till the regular promotion of respondent
No.1 as Executive Engineer in the parent cadre. Within three
months of the aforesaid promotion of respondent No.1 in ex-cadre      C
post, respondent No. 1 was given regular promotion in the cadre.
The manner in which it was done again shows that undue favour
was accorded to him. The Selection Board meeting for
encadrement of ex-cadre post held by respondent No.1 was held
on July 27, 2005. Minutes of these meeting are placed on record.
It is recorded that probable vacancies in the year 2004 as assessed   D
by the Department are thirteen, which are inclusive of existing
vacancy due to the retirement of one officer and twelve vacancies
that occurred due to the promotion of twelve Executive Engineers
to the rank of Superintending Engineers (Civil) during the year
ending December 31, 2004. The Minutes also record that the            E
Board was intimated by the Appointing Authority that the
Department had given promotion to respondent No.1 as
Executive Engineer (ex-cadre) with the concurrence of the
Finance Department. Inter alia, on the aforesaid basis, the
Selection Board recommended his encadrement. It was noted
that since there were thirteen vacancies and respondent No.1          F
was at the thirteenth position in the Select List, his encadrement
was recommended. [Paras 19, 20][1023-E-H; 1024-A-B]
       2. Two things flow from the aforesaid Minutes, which are
as follows: (a) The Board was wrongly informed that there were
thirteen vacancies; (b) Respondent No.1 was promoted as               G
Assistant Executive Engineer in the year 2002 and stood
promoted as Executive Engineer in the year 2005, i.e. within
three years of his promotion as Assistant Executive Engineer.
The extant Rules provide that a person, to be eligible for
                                                                      H
1014           SUPREME COURT REPORTS                    [2018] 13 S.C.R.


 A     promotion to the post of Executive Engineer, should work for a
       minimum period of five years as Assistant Executive Engineer.
       He was, thus, not even eligible for consideration to the post of
       Executive Engineer. It appears that the Selection Board glossed
       over this fundamental aspect and proceeded on the basis as if
       respondent No.1 was eligible to be considered for promotion. In
 B
       spite of aforesaid two glaring defects, which go to the root of the
       matter, the recommendation of the Selection Board was accepted
       and the Government of Assam issued orders dated August 03,
       2005 promoting various persons, including respondent No.1, to
       the rank of Executive Engineer (Civil), PWD. [Para 21]
 C     [1024-C-F]
             3. The findings of the Single Judge of the High Court to
       the effect that encadrement of respondent No.1 to the post of
       Executive Engineer was illegal not only on the ground that he
       was ineligible for consideration, as he had put in only three years
 D     of service, but also for the reason that there were only ten
       vacancies and not thirteen and, therefore, respondent No.1 could
       not be promoted at all, are without blemish. Further, findings of
       the Single Judge that respondent No.1 was guilty of committing
       fraudulent acts in getting his promotion to the post of Executive
       Engineer 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 of
       thirteen vacancies by the Government may also be incorrect.
       However, this aspect is side tracked by stating that it was a bona
       fide mistake and not a deliberate one. Fact remains that the
 F     Division Bench has accepted that thirteen vacancies were not in
       existence. Notwithstanding the same, the Division Bench has
       non-suited the appellants only on the ground that writ petition
       filed by the appellants suffered from delays and laches as it was
       filed nine years after the promotion of respondent No.1 and has
 G     stated that even when respondent No.1 had taken undue favour
       in getting the promotion, it was not proper to upset the decision
       because of delay and laches, as also the fact that in the meantime
       respondent No.1 has got promotion to the post of Superintending
       Engineer as well. [Paras 23 and 24][1025-D-F]

 H
              AJIT KR. BHUYAN v. DEBAJIT DAS                              1015


      5. That apart, there is one more reason for coming to the           A
conclusion that the Division Bench of the High Court was in error
in saving respondent No.1 on the premise that the writ petitions
suffered from delay and laches. In fact, the Association had
submitted a representation to the then Chief Minister. Going by
the nature of allegations, the Chief Minister rightly acted
                                                                          B
thereupon and referred the matter to a Committee which, after
examining the matter, had also given its report stating that the
promotion 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 creating       C
ex-cadre post of Executive Engineer only for respondent No.1
and giving him that post when he was much junior to many others.
Second, encadrement of respondent No.1 as Executive Engineer
by showing that there were thirteen posts when, in fact, there
were only ten posts of Executive Engineer on that date. This              D
was done obviously with the purpose of accommodating him.
Third, the promotion was given when respondent No.1 was not
even eligible 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 the ground that the action challenged was
belated, more so when there is a reasonable explanation for such          E
delay. [Para 28][1026-F-G]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10662
of 2018
     From the Judgment and Order dated 07.08.2015 of the Gauhati          F
High 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,
                                                                          G
Shuvodeep Roy, Ankit Roy, Inderjit Singh, Sayooj Mohandas, Subodh
Kumar Pathak, Pawan Kumar Sharma, Ms. Pranita Shekhar, Shashi
Ranjan, 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 appearing
parties.                                                                  H
1016            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


 A           The Judgment of the Court was delivered by
             A. K. SIKRI, J. 1. Leave granted.
              2. These appeals were heard together and are being disposed of
       by this judgment because of commonality of issues therein. The judgment
       impugned is also the same, i.e., judgment dated August 07, 2015 passed
 B     by the High Court of Gauhati.
              3. Mr. Debajit Das (respondent No.1 herein) was appointed as an
       Assistant Engineer in the Public Works Department on September 30,
       1996 and on completing six years of service he was promoted to the
       post of Assistant Executive Engineer in December 2002. Subsequently,
 C     a post for ex-cadre Executive Engineer was created and he was promoted
       to the said post vide Notification dated April 02, 2005. Respondent No.1
       was granted regular promotion by encadering him on the recommendation
       of the Selection Committee pursuant to its meeting dated July 27, 2005.
              4. On October 14, 2014, an inter se seniority list of Executive
 D     Engineers was published and within three days a Selection Committee
       meeting was convened for promotion to the post of Superintending
       Engineer. Although the Selection Board proceeded on the basis that there
       were thirteen vacancies for the post of Superintending Engineers on
       that date, the appellants herein contend that the number of available
 E     vacancies were only ten (six for the year 2011 and four for the year
       2014). The appellants have also contended that this increased number
       of vacancies was shown only to accommodate respondent No.1 who
       was at Serial No. 52 in the seniority list. As per the Selection Committee,
       however, one Ajit Kr. Kakati was promoted from Superintending Engineer
       to Assistant Superintending Engineer; one Jiauddin Ahmed had suffered
 F     the punishment of compulsory retirement and one Kamkhya Prasad
       Bezbarua was sent on deputation. Thus, three new vacancies arose.
       With thirteen vacancies, respondent No. 1 was brought within the zone
       of consideration and was recommended for promotion to the post of
       Superintending Engineer on October 28, 2014 and the promotion order
 G     was issued.
              5. Respondent No.11 herein had filed the writ petition being Writ
       Petition (Civil) No. 5470 of 2014 before the Gauhati High Court
       challenging the promotion of respondent No.1 to the post of Superintending
       Engineer. Subsequently, the Assam PWD Engineers Service Association
       submitted a representation to the Chief Minister of Assam, who by
 H
                AJIT KR. BHUYAN v. DEBAJIT DAS                                  1017
                         [A. K. SIKRI, J.]

endorsement dated November 11, 2014 directed the Additional Chief               A
Secretary (Personnel Department) to conduct an inquiry into the matter
and submit a report. Pursuant thereto, an inquiry was conducted and
the report was forwarded to the Commissioner and Special Secretary to
the Government of Assam (PWD) which mentioned grave irregularities
and illegalities committed in promoting respondent No.1. Thereafter,
                                                                                B
the PWD (Confidential Cell), Government of Assam, issued a letter dated
December 24, 2014 to various officials of the Personnel Department
informing them that a Review Selection Board meeting would be held
on January 02, 2015 regarding the promotion to the rank of Executive
Engineer (Civil) and Superintending Engineer (Civil).
       6. Respondent No.1 also approached the Gauhati High Court by             C
filing Writ Petition (Civil) No. 5 of 2015. During its pendency, an order
of demotion was passed against respondent No.1 demoting him to the
ex-cadre post of Executive Engineer.
       7. The learned Single Judge of the High Court held that the
respondent No.1’s encadrement to the post of Executive Engineer was             D
illegal. It was also held that the Selection Committee erred in holding
the number of vacancies as thirteen as against ten. The learned Single
Judge also found respondent No.1 guilty of committing fraudulent acts
in getting his promotion to the post of Executive Engineer which was
also contrary to the Service Rules as he had not put in minimum of five         E
years service. While holding so, the learned Single Judge negatived the
contention of respondent No.1 that the writ petitions filed by the appellants
herein suffered from delay and laches.
       8. Aggrieved by the same, respondent No.1 filed the appeal. Vide
the impugned judgment dated August 07, 2015, the Division Bench of              F
the High Court has set aside the order of the Single Judge thereby
permitting respondent No.1 to hold the post of Superintending Engineer
(PWD). The appellants, being aggrieved of the same, have filed the
instant appeals.
      9. We have heard the learned counsel for the parties. The issues          G
involved in these appeals are: (a) whether the promotion of respondent
No.1 to the ex-cadre post of Executive Engineer, and encadrement thereof
subsequently, is illegal?; (b) whether the delay and laches will come in
the way of appellant No.3 in challenging the order of promotion of
respondent No.1?; and (c) whether the Government was right in
                                                                                H
1018            SUPREME COURT REPORTS                        [2018] 13 S.C.R.


 A     conducting an inquiry when the writ petitions were pending before the
       Court 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 and
       his seniority vis-a-vis the three appellants in the appeal arising out of
 B     Special Leave Petition (Civil) No. 25770 of 2015. The other two appeals
       are by the State of Assam as well as Assam PWD Engineers Service
       Association who are supporting the three appellants in the aforesaid
       appeal. For this reason, they also assailed the impugned judgment dated
       August 07, 2015 of the High Court. However, for the sake of
       convenience, the parties shall be referred to with reference to the appeal
 C     arising out of Special Leave Petition (Civil) No. 25770 of 2015, i.e. the
       appellants and respondent No.1 respectively.
             11. Before proceeding further, it would be apt to discuss the manner
       in which the Division Bench of the High Court has proceeded with the
       matter resulting into the aforesaid outcome. After taking note of the
 D     seminal facts which have already been stated above, the High Court
       summarised the findings of the learned Single Judge in the following
       manner:
             “(i) The encadrement of the appellant to the post of EE is illegal.
             As the date when the appellant was promoted from the post of
 E           AEE to the post of an excadre EE and thereafter within five
             months when he was encadred to the post of EE he had not
             completed the required five years of qualifying service and that
             he had put in only three years of service.
             (ii) The learned Single Judge relied on the inquiry report to come
 F           to the conclusion that the number of vacancy in the cadre of SE
             on the date when the selection was made was only 10, therefore
             the selection committee grossly erred in holding the number of
             vacancy as 13 as against 10.
             (iii) The learned Single Judge found that the selection made at the
 G           review DPC and promoting the respondent 11 as SE consequent
             to the others passed in the enquiry by the government is legal and
             valid. The learned Single Judge also found that the appellant herein
             is guilty of committing fraudulent acts in getting his promotion to
             the post of EE out-of-turn and contrary to the service rules when
 H
               AJIT KR. BHUYAN v. DEBAJIT DAS                                 1019
                        [A. K. SIKRI, J.]

      he has not put in minimum five years of service the encadrement         A
      to the post of EE is not gazetted and that the records were
      concocted to show that the said promotion was said to have been
      gazetted.
      (iv) The learned Single Judge negatived the plea of the appellant
      that the inquiry committee has committed gross error in not giving      B
      him an opportunity of hearing before passing the order of his
      demotion.
      (v) The learned Single Judge also negatived the contention of the
      appellant that the writ petitions filed by the respondents suffer
      from delay and laches and held that there was a systematic              C
      manipulation at various stages to which complicity of the appellant
      cannot be ruled out. In the result the learned Single Judge upheld
      the order of the government in demoting the appellant to the post
      of EE (ex-cadre). The appellant aggrieved by the said order has
      filed this appeal.”
                                                                              D
       12. Thereafter, the Court took note of the submission of the counsel
for respondent No.1 (appellant in the said appeal) and also recorded the
contentions of the Advocate General for the State of Assam and the
counsel for the appellants herein. On the basis of the arguments and
counter arguments noted by it, as well as the subject matter of the
controversy, the High Court mentioned that seven propositions arise for       E
consideration. These propositions and answers thereto are given in
paragraph 18 of the impugned judgment and we deem it apposite to
extract the said paragraph which will give the flavour and essence of
the judgment of the High Court:
      “18. On thoughtful consideration of the rival contentions the           F
      following propositions are arising for consideration:
      (i) Whether the promotion of the appellant to the post of ex-cadre
      EE and en-cadre subsequently is illegal and, if it is so, whether the
      delay and laches will come in the way of respondent 12 challenging
      the order of promotion of the appellant.                                G
          The first part of the question is answered in the affirmative
      and the second part is in the negative.
      (ii) Whether the government was right in conducting an inquiry
      when the writ petitions were pending before the Court?
                                                                              H
1020             SUPREME COURT REPORTS                          [2018] 13 S.C.R.


 A                The question is answered in the negative.
              (iii) Whether the inquiry committee was wrong in breaching the
              principles of natural justice in not giving an opportunity of hearing
              to 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 are
              only 10 vacancies available for promotion to the post of SE and
 C            consequent 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 order
              of promotion of the appellant and reverting him to the post of EE
 D
              (ex-cadre) is illegal?
                  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 would
       amply demonstrate that the High Court has affirmed the finding of the
       learned Single Judge that the promotion of respondent No.1 herein to
       the post of ex-cadre Executive Engineer and his encadrement thereafter
       was illegal. The Division Bench of the High Court has also given a
 F     categorical finding that there were only ten vacancies available for
       promotion at that time. However, at the same time, it observed that the
       order of the Government in upsetting the promotion of respondent No.1
       and reverting him to the ex-cadre post of Executive Engineer was illegal.
       The reason for setting aside the demotion order of respondent No.1, in
 G     spite of specific finding to the effect that calculation of thirteen vacancies
       was incorrect and further that respondent No.1 was given undue favour
       while promoting him to the post of Superintending Engineer is captured
       in paragraph 26 of the impugned judgment, which is reproduced below:
              “26. It may be that the notification of July 1997 which declares
              that if a person overstays on deputation beyond the five years is
 H
               AJIT KR. BHUYAN v. DEBAJIT DAS                                 1021
                        [A. K. SIKRI, J.]

      deemed to have been absorbed may be illegal because the person          A
      on deputation will have lien in the post in the parent department
      until the lien gets terminated and the said post cannot be considered
      as vacant, but nonetheless a government order was there and
      based on the material the bureaucracy have worked out the
      vacancy as 13. The government notification of July 1997 was
                                                                              B
      issued much prior to the dispute in question. Based on the said
      notification when the authorities have worked out the vacancy
      position and the PWD Minister has also approved it the Court
      should not expect the bureaucracy to apply the strict judicial
      standards and legal acumen in interpreting notifications and the
      provisions of law while discharging their duties. Any mistakes on       C
      the part of the bureaucracy in interpretation should be considered
      only as a bona fide error and not as a deliberate mistake. In that
      view the calculation of 13 vacancies may be incorrect but
      considering the position today when Kamakhya Bezbaruah is
      repatriated there will be still four vacancies of SE available.
                                                                              D
      Therefore there does not appear to be any difficulty for Kamakhya
      Bezbaruah on his repatriation to get back to the post of SE.
      Therefore we find that in fitness of things it is a case where
      although the appellant took some undue favour in the year 2005
      on the ground of delay and laches it is not proper to upset his
      position and also his promotion to the post of SE having been           E
      worked out on the basis that there are 13 vacancies which appears
      to be a bona fide mistake. In view of subsequent developments
      new vacancies of SE have arisen. Kamakhya Bezbaruah who is
      repatriated will continue to hold the post of SE and he would be
      senior to appellant. With the above observations the writ appeal
                                                                              F
      is 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 the
learned Single Judge that it was a case of total favouritism shown to
respondent No.1 in giving him promotion to the ex-cadre post in the first
instance and thereafter encadring him and the same were found to be           G
contrary to the Rules; the writ petitions of the appellants were dismissed
on the purported ground of delays and laches.
      15. Mr. Nalin Kohli, learned counsel who appeared for the State
of Assam, gave the following details to show that respondent No.1 was
                                                                              H
1022             SUPREME COURT REPORTS                         [2018] 13 S.C.R.


 A     much junior to the three appellants and still allowed to stealmarch over
       them, which was cearly impermissible:

              Party            Assistant      Assistant          Executive
                               Engineer       Executive          Engineer
                                              Engineer
 B
         Appellant No.1           1980           1989               2002
         Appellant No.2           1981           1988               2002
         Appellant No.3           1992           1999       Yet to be promoted
        Respondent 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,
 D     therefore, rightly interfered with the orders of promotion and encadrement
       of respondent No.1, which was upset by the Division Bench on spacious
       grounds.
              16. The reply of Mr. Mukul Rohatgi, learned senior counsel
       appearing for respondent No.1, was that the course of action adopted
 E     by the Division Bench was quite reasonable and equitable. He submitted
       that the promotion was given to respondent No.1 as Executive Engineer
       way back in the year 2005 against an ex-cadre post. Thereafter, he was
       encadred also in the same year. Respondent No.1, thus, had been working
       on this post since 2005. Thereafter, he stood promoted as Superintending
       Engineer with effect from October 17, 2014. It would, therefore, be
 F     unjust to upset the applecart.
              17. For appropriately dealing with the contentions of the counsel
       for the parties, it would be necessary to traverse through the documents
       vide which respondent No.1 was given the aforesaid benefits.
              18. Record shows that the Government of Assam created an ex-
 G
       cadre post of Executive Engineer (PWD), which fact was informed to
       the Accountant General (A&D), Assam, vide communication dated April
       02, 2005. This letter mentions that the Governor of Assam has sanctioned
       the creation of one post of ex-cadre Executive Engineer from the date
       of the issue of the letter, i.e. April 02, 2005, for a period up to February
 H
               AJIT KR. BHUYAN v. DEBAJIT DAS                                 1023
                        [A. K. SIKRI, J.]

28, 2006. It was also stated that beyond February 28, 2006, PWD would         A
move for further retention of this post, if necessary, with name of the
incumbent. It was subject to the following conditions which were
contained in the said letter itself:
      “1. The ex-cadre post of OSD to Chief Minister in the rank of
      Executive Engineer, PWD will be personal to Sri Debajit Das.            B
      2. The ex-cadre post of OSD to Chief Minister in the rank of
      Executive Engineer, PWD shall Stand abolished as soon as Sri
      Debajit Das get regular promotion as Executive Engineer, PWD
      in the parent cadre.
      3. Beyond 28-02-2006, Public Works Department will move for             C
      further retention of this post, if necessary, with name of the
      incumbent.
      Meanwhile, Public Works Department is advised to initiate the
      process of regular promotion from Asstt. Executive Engineer to
      Executive Engineer.                                                     D
                                                                Sd/-
                                                   Under Secretary
                                       Finance (EC-II) Department”
      19. It becomes clear from the aforesaid that this ex-cadre post
was created specially for respondent No.1, which was to remain till the       E
regular promotion of respondent No.1 as Executive Engineer in the parent
cadre. It was nothing but an act of favouritism. Pertinently, respondent
No.1 was attached with the Chief Minister as an Officer on Special
Duty at that time. It is also relevant to note that though appellant Nos. 1
and 2 had already stood promoted as Executive Engineers (who were             F
promoted 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 respondent
No.1 in ex-cadre post, respondent No.1 was given regular promotion in
the cadre. The manner in which it was done again shows that undue             G
favour was accorded to him. The Selection Board meeting for
encadrement of ex-cadre post held by respondent No.1 was held on
July 27, 2005. Minutes of these meeting are placed on record. It is
recorded that probable vacancies in the year 2004 as assessed by the
Department are thirteen, which are inclusive of existing vacancy due to
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1024            SUPREME COURT REPORTS                        [2018] 13 S.C.R.


 A     the retirement of one officer and twelve vacancies that occurred due to
       the promotion of twelve Executive Engineers to the rank of Superintending
       Engineers (Civil) during the year ending December 31, 2004. The Minutes
       also record that the Board was intimated by the Appointing Authority
       that the Department had given promotion to respondent No.1 as Executive
       Engineer (ex-cadre) with the concurrence of the Finance Department.
 B
       Inter alia, on the aforesaid basis, the Selection Board recommended his
       encadrement. It was noted that since there were thirteen vacancies
       and respondent No.1 was at the thirteenth position in the Select List, his
       encadrement was recommended.
             21. Two things flow from the aforesaid Minutes, which are as
 C     follows:
             (a) The Board was wrongly informed that there were thirteen
             vacancies.
             (b) Respondent No.1 was promoted as Assistant Executive
 D           Engineer in the year 2002 and stood promoted as Executive
             Engineer in the year 2005, i.e. within three years of his promotion
             as Assistant Executive Engineer. The extant Rules provide that a
             person, to be eligible for promotion to the post of Executive
             Engineer, should work for a minimum period of five years as
             Assistant Executive Engineer. He was, thus, not even eligible for
 E           consideration to the post of Executive Engineer. It appears that
             the Selection Board glossed over this fundamental aspect and
             proceeded on the basis as if respondent No.1 was eligible to be
             considered for promotion.
                 In spite of aforesaid two glaring defects, which go to the root
 F           of the matter, the recommendation of the Selection Board was
             accepted and the Government of Assam issued orders dated
             August 03, 2005 promoting various persons, including respondent
             No.1, to the rank of Executive Engineer (Civil), PWD.
              22. We, thus, find that the findings of the learned Single Judge to
 G     the effect that encadrement of respondent No.1 to the post of Executive
       Engineer was illegal not only on the ground that he was ineligible for
       consideration, as he had put in only three years of service, but also for
       the reason that there were only ten vacancies and not thirteen and,
       therefore, respondent No.1 could not be promoted at all, are without
       blemish. We are also in agreement with the findings of the learned
 H
               AJIT KR. BHUYAN v. DEBAJIT DAS                                  1025
                        [A. K. SIKRI, J.]

Single Judge that respondent No.1 was guilty of committing fraudulent          A
acts in getting his promotion to the post of Executive Engineer out of
turn and contrary to the service Rules. Even the Division Bench, in the
impugned judgment, accepted the aforesaid position in paragraph 20 of
its judgment, which reads as under:
      “20) It is no doubt that the promotion of the appellant to the post      B
      of EE (encadre) and consequent encadrement is contrary to the
      service rules, since he had not put in the required service of five
      years to be eligible to the promotion to the post of EE. The
      condition in the promotion order that the officer “over the post so
      encadred” should be in the lowest position till the senior category
      comes to the position appears to be an untenable condition that          C
      could be attached to the promotion under the service rules. There
      appears to be compounded illegalities. The promotion may be
      illegal. 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 that            D
calculation of thirteen vacancies by the Government may also be incorrect.
However, this aspect is side tracked by stating that it was a bona fide
mistake and not a deliberate one. Fact remains that the Division Bench
has accepted that thirteen vacancies were not in existence.
       24. Notwithstanding the same, the Division Bench has non-suited         E
the appellants only on the ground that writ petition filed by the appellants
suffered from delays and laches as it was filed nine years after the
promotion of respondent No.1 and has stated that even when respondent
No.1 had taken undue favour in getting the promotion, it was not proper
to upset the decision because of delay and laches, as also the fact that in    F
the meantime respondent No.1 has got promotion to the post of
Superintending Engineer as well.
       25. It, therefore, needs to be considered as to whether the order
of the learned Single Judge warranted interference thereby denying the
relief to the appellants on the ground that their writ petition suffered       G
from delays and laches.
       26. Having regard to the circumstances in which respondent No.1
was given promotion to the post of Executive Engineer by creating an
ex-cadre post and thereafter the manner in which he was encadred to
the said post by stretching the number of vacancies against the record,
                                                                               H
1026             SUPREME COURT REPORTS                          [2018] 13 S.C.R.


 A     speaks volumes about the manner in which undue favour was shown to
       respondent No.1. One has to keep in mind that at that time he was
       working as Officer on Special Duty to the Chief Minister. These facts
       reflect clear manipulation of the system at various stages to give out of
       turn promotion to respondent No.1 by bestowing undue favour. With
       such ‘flyover promotions’, respondent No.1 parachuted from Assistant
 B
       Executive Engineer to Superintending Engineer by bypassing many senior
       colleagues in the cadre of Assistant Executive Engineer who are still
       stagnating in the same cadre. When this factual position emerged on
       record and was duly approved by the Division Bench as well, we are of
       the opinion that the writ petition could not be dismissed on the ground of
 C     delay and laches. In fact, the Division Bench has erred in invoking this
       principle by dubbing the entire exercise as a bona fide error. What
       happened cannot be termed as ‘bona fide’. It was a clear case of
       favouritism shown to respondent No.1 and the actions were contrary to
       Rules.
 D             27. That apart, there is one more reason for coming to the conclusion
       that the Division Bench of the High Court was in error in saving
       respondent No.1 on the premise that the writ petitions suffered from
       delay and laches. In fact, the Association had submitted a representation
       to the then Chief Minister. Going by the nature of allegations, the Chief
       Minister rightly acted thereupon and referred the matter to a Committee
 E     which, after examining the matter, had also given its report stating that
       the promotion of respondent No.1 was against the Rules. This provides
       reasonable explanation for delay, if any.
              28. We are of the opinion that it was virtually a case of fraud, at
       least on three counts. First, by creating ex-cadre post of Executive
 F     Engineer only for respondent No.1 and giving him that post when he
       was much junior to many others. Second, encadrement of respondent
       No.1 as Executive Engineer by showing that there were thirteen posts
       when, in fact, there were only ten posts of Executive Engineer on that
       date. This was done obviously with the purpose of accommodating him.
 G     Third, the promotion was given when respondent No.1 was not even
       eligible 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 the
       ground that the action challenged was belated, more so when there is a
       reasonable explanation for such delay.

 H
              AJIT KR. BHUYAN v. DEBAJIT DAS                                1027
                       [A. K. SIKRI, J.]

      29. We, accordingly allow these appeals, set aside the impugned       A
judgment dated August 07, 2015 of the Division Bench of the High Court
and restore the judgment of the learned Single Judge.
      No order as to costs.

                                                                            B
Ankit Gyan                                               Appeals allowed.




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