Ajit Kr. Bhuyan . vs Debajit Das .

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 10662 OF 2018 (ARISING OUT OF SLP (C) NO. 25770 OF 2015)

AJIT KR. BHUYAN AND OTHERS .....APPELLANT(S)

VERSUS

DEBAJIT DAS AND OTHERS .....RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). 10663 OF 2018 (ARISING OUT OF SLP (C) NO. 29168 OF 2015)

AND

CIVIL APPEAL NO(S). 10664 OF 2018 (ARISING OUT OF SLP (C) NO. 17329 OF 2017)

JUDGMENT

A.K.SIKRI, J.

Leave granted.

Signature Not Verified Digitally signed by SUSHIL KUMAR RAKHEJA Date: 2018.10.23

2. These appeals were heard together and are being disposed of by 18:07:22 IST Reason:

this judgment because of commonality of issues therein. The

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 1 of 20 judgment impugned is also the same, i.e., judgment dated August

07, 2015 passed 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, 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

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 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

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 2 of 20 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 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 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 endorsement dated November

11, 2014 directed the Additional Chief 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

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 3 of 20 to the Government of Assam (PWD) which mentioned grave

irregularities and illegalities committed in promoting respondent

No.1. Thereafter, 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

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 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 years service.

While holding so, the learned Single Judge negatived the

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 4 of 20 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 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

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 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

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 5 of 20 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 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 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 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 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

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 6 of 20 erred in holding the number of vacancy as 13 as against 10.

(iii) The learned Single Judge found that the selection made at the 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 he has not put in minimum five years of service the encadrement 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 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 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.”

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 consideration. These propositions

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 7 of 20 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 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.

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?

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.

(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 consequent to the demotion of the appellant to the post of EE (ex-cadre)?

The question is answered in the affirmative.

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 8 of 20

(vi) Whether the order of the government in upsetting the order of promotion of the appellant and reverting him to the post of EE (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?”

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 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 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:

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 9 of 20

“26. It may be that the notification of July 1997 which declares that if a person overstays on deputation beyond the five years is deemed to have been absorbed may be illegal because the person 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 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 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. 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 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 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

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 10 of 20 the same were found to be 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 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 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 (within 3 years, as per Rule it has to be 5 years)

He submitted that the learned Single Judge of the High

Court had, 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 by the

Division Bench was quite reasonable and equitable. He

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 11 of 20 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 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-

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 28, 2006. It was

also stated that beyond February 28, 2006, PWD would move for

further retention of this post, if necessary, with name of the

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 12 of 20 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.

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 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.

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

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 promoted in the

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 13 of 20 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 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 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. Inter

alia, on the aforesaid basis, the Selection Board recommended

his encadrement. It was noted that since there were thirteen

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 14 of 20 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 follows:

(a) The Board was wrongly informed that there were thirteen

vacancies.

(b) Respondent No.1 was promoted as 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 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 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.

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 15 of 20

22. We, thus, find that the findings of the learned Single Judge 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 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 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. 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 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 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

calculation of thirteen vacancies by the Government may also be

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 16 of 20 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 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 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 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

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 17 of 20 was encadred to the said post by stretching the number of

vacancies against the record, 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 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

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.

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

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 18 of 20 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 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

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. 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.

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 19 of 20

29. We, accordingly allow these appeals, set aside the impugned

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.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN) NEW DELHI;

OCTOBER 23, 2018.

Civil Appeal arising out of SLP (C) No. 25770 of 2015 Page 20 of 20