REPORTABLE

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)

W I T H

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

A N D

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

J U D G M E N T

A.K.SIKRI, J.

Leave granted.

2. These appeals were heard together and are being disposed of by

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

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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

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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

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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

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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.

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(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:

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“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

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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 Engineer

Assistant Executive Engineer

Executive 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

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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

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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

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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.

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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

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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

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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.

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