service matter = 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.

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
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 excadre
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
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 excadre
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 excadre
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 excadre
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 (excadre)
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