2018 (10) TMI 2021 - SC - Indian Laws

SC overturns dismissal of promotion challenge, finds fraud vitiates illegal encadrement despite delay

Ajit Kr. Bhuyan and Ors Versus Debajit Das and Ors

The SC set aside a Division Bench judgment that had dismissed appellants' challenge to respondent's promotion due to delay and laches. The court found the ... Order of demotion was passed against Respondent No. 1 demoting him to the ex-cadre post of Executive Engineer - Single Judge of the High Court held that the Respondent No. 1's encadrement to the post of Executive Engineer was illegal - whether the promotion of Respondent No. 1 to the ex-cadre post of Executive Engineer, and encadrement thereof subsequently, is illegal? - whether the delay and laches will come in the way of Appellant No. 3 in challenging the order of promotion of Respondent No. 1? - 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? - HELD 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 year 2002), Appellant No. 3 was yet to be promoted. They were, thus, much senior to Respondent No. 1. 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 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. 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? - HELD 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. The impugned judgment dated August 07, 2015 of the Division Bench of the High Court is set aside - appeal allowed. Issues Involved:1. Legality of the promotion and encadrement of Respondent No. 1 to the post of Executive Engineer.2. Whether delay and laches prevent Appellant No. 3 from challenging the promotion.3. Legitimacy of the Government's inquiry and subsequent demotion of Respondent No. 1 during pending writ petitions.Detailed Analysis:1. Legality of the Promotion and Encadrement of Respondent No. 1:The Supreme Court scrutinized the promotion and encadrement of Respondent No. 1, who was initially appointed as an Assistant Engineer in the Public Works Department on September 30, 1996. He was promoted to Assistant Executive Engineer in December 2002 and subsequently to an ex-cadre Executive Engineer on April 02, 2005. The Selection Committee recommended his regular promotion on July 27, 2005. However, the Court found that:- The encadrement was illegal as Respondent No. 1 had not completed the required five years of service as Assistant Executive Engineer, having only served three years.- The Selection Committee erred in calculating thirteen vacancies instead of ten, which facilitated the undue promotion of Respondent No. 1.- The learned Single Judge's findings of fraudulent acts by Respondent No. 1 in securing his promotion were upheld.2. Delay and Laches:The Division Bench of the High Court initially set aside the learned Single Judge's decision, citing delays and laches in the Appellants' challenge. However, the Supreme Court disagreed, noting:- The undue favouritism and manipulation in promoting Respondent No. 1 were clear.- The writ petition could not be dismissed on the grounds of delay and laches, particularly when the actions were contrary to the Rules and involved manipulation.- The Association's representation to the Chief Minister and the subsequent inquiry provided a reasonable explanation for any delay.3. Government Inquiry and Demotion:The High Court's Division Bench had questioned the Government's right to conduct an inquiry during pending writ petitions and the lack of natural justice in not hearing Respondent No. 1. The Supreme Court found:- The inquiry was justified given the serious allegations of irregularities.- The findings of the inquiry committee, which highlighted the illegalities in the promotion of Respondent No. 1, were valid.- The Government's decision to demote Respondent No. 1 to the ex-cadre post of Executive Engineer was upheld by the learned Single Judge.Conclusion:The Supreme Court restored the judgment of the learned Single Judge, concluding that the promotion and encadrement of Respondent No. 1 were illegal due to non-compliance with service rules and fraudulent actions. The Court emphasized that fraud vitiates every action and cannot be condoned on grounds of delay, particularly when there is a reasonable explanation for such delay. The appeals were allowed, and the Division Bench's judgment was set aside.