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SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
AJIT KR. BHUYAN AND OTHERS – APPELLANT(S)
VERSUS
DEBAJIT DAS AND OTHERS – RESPONDENT(S)
CIVIL APPEAL NO(S). 10662 OF 2018 (ARISING OUT OF SLP (C) NO. 25770 OF 2015) WITH 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)
Decided On : 23-10-2018
(b) Constitution of India – Article 226 – Delay and laches – Petition file challenging promotion of respondent 1 after nine years of said promotion – Case of respondent 1 virtually one of fraud – Fraud vitiates every action challenge to wich cannot be dismissed on ground of delay – Further, Engineers Association filing representation to Chief Minister who ordered enquiry – Enquiry report categorically holding promotion of respondent 1 against the Rules – This explains delay in filing writ petition – Impugned judgment not sustainable. (Para 27, 28)
Facts of the case:
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.
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. 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.
Respondent No.11 herein had filed the writ petition challenging the promotion of respondent No.1 to the post of Superintending Engineer.
Respondent No.1 also approached the High Court. During its pendency, an order of demotion was passed against respondent No.1 demoting him to the ex-cadre post of Executive Engineer.
The Single Judge of the High Court held that the respondent No.1’s encadrement to the post of Executive Engineer was illegal. The 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 contention of respondent No.1 that the writ petitions filed by the appellants herein suffered from delay and laches.
Aggrieved by the same, respondent No.1 filed the appeal. Vide the impugned judgment 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).
Finding of the Court;
Case of respondent 1 is virtually one of fraud and challenge to it will not be barred on ground of laches.
Result: Appeal allowed.
JUDGMENT
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 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 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 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 contention of respondent
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