Case: AJIT KR. BHUYAN  Vs. DEBAJIT DAS

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 by the High Court of Gauhati.Mr. Debajit Dasn) 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 ofExecutive Engineer inDecember 2002. Subsequently, a post forExecutive Engineer was created and he was promoted to the said post vide Notification dated April 02, 2005.was granted regular promotion by encadering him on the recommendation of the Selection Committee pursuant to its meeting dated July 27, 2005.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 vacancies was shown only to accommodateho 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.herein had filed the writ petition being Writ Petition (Civil) No. 5470 of 2014 before the Gauhati High Court challenging the promotion ofto 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 to the Government of Assam (PWD) which mentioned grave irregularities and illegalities committed in promoting. 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).so approached the Gauhati High Court by filing Writ Petition (Civil) No. 5 of 2015. During its pendency, an order of demotion was passed againstng him to thepost of Executive Engineer.The learned Single Judge of the High Court held that thes 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 foundty 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 contention ofat the writ petitions filed by the appellants herein suffered from delay and laches.Aggrieved by the same,ed 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 permittingto hold the post of Superintending Engineer (PWD). The appellants, being aggrieved of the same, have filed the instant appeals.

Reasoning:
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