Case: AJIT KR. BHUYAN  Vs. DEBAJIT DAS

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. 2577 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 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. It becomes clear from the aforesaid that thispost was created specially for, which was to remain till the regular promotion ofas Executive Engineerin the parent cadre.It was nothing but an act of favouritism. Pertinently,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 promotedwho were promoted in the year 2002),t to beThey were, thus, much senior to0. Within three months of the aforesaid promotion ofwas 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 ofpost held bywas 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 duent of one officer and twelve vacancies that occurred duethe promotion oftwelve Executive Engineersthe rank ofSuperintending 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 tos Executive Engineercadre) 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 andwas at the thirteenth position in the Select List, his encadrement was recommended.Two things flow from the aforesaid Minutes, which are as follows:(a) The Board was wrongly informed that there were thirteen vacancies.was promoted asExecutive Engineer inthe year 2002 and stood promoted asExecutive Engineer inthe year 2005, i.e. within three years of his promotion asThe extant Rules provide that a person, to be eligible for promotionthe post ofExecutive Engineer, should work for a minimum period of five years asHe was, thus, not even eligible for considerationthe post ofIt appears that the Selection Board glossed over this fundamental aspect and proceeded on the basis as ifwas eligible to be considered for promotion.In spite of aforesaid two glaring defects, which goot 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, includinge rank ofExecutive Engineer (Civil), PWD. Civil Appeal arising out of SLP (C) No. 257722. We, thus, find that the findings of the learned Single Judgect that encadrement ofto thepost 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,ld not be promoted at all, are without blemish. We are also in agreement with the findings of the learned Single Judge thatwas guilty of committing fraudulent acts in getting his promotionthe post ofExecutive Engineer out of turn and contraryce 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 thatthe promotion ofthe appellant tothe post ofEE (encadre) and consequent encadrement is contraryce rules, since he had not put in the required service of five years to be eligiblethe post ofEE. The condition in the promotion order that the officer ?over the post so encadred? should be in the lowest position till the senior category comeson appears to be an untenable condition that could be attachedon 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 according3. Interestingly, 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 Division Bench has accepted that thirteen vacancies were not in existence.Notwithstanding the same, the Division Bench hasnly on the ground thatwrit petition filed by the appellants suffered from delays and laches as it was filed nine years afterthe promotion ofand has stated that even whenad taken undue favour in getting the promotion, it was not proper to upset the decision because of delay ands also thefact that in the meantimeas got promotionthe post ofSuperintending Engineer as well.es in whichwas given promotionthe post ofExecutive Engineer by creating anpost and thereafter the manner in which he was encadredthe said postby stretching the number of vacancies against the record, speaks volumes about the manner in which undue favour was shown toep in mind that at that time he was working as Officer on Special Dutyef Minister. These facts reflect clear manipulation of the system at various stages to give out of turn promotion toby bestowing undue favour. With such ‘flyover promotions?,ed fromExecutive Engineer toSuperintending Engineer by bypassing many senior colleagues in the cadre ofwho 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 toand the actions were contrary to Rules.That apart, there is one more reason for comingon that the Division Bench of the High Court was in error in savingon the premise that the writ petitionsfrom delay andlaches. In fact, the Association had submitted a representationen 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 thatthe promotion ofwas against the Rules. This provides reasonable explanation for delay, if any.We are of the opinion that it was virtually a case of fraud, at least on three counts. First, by creatingpost of Executive Engineer only forand giving him that post when he was much junior to many others. Second, encadrement ofs Executive Engineerby 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