Service Law – Promotion – Manipulation of the system to give out of turn promotion – Respondent no.1 was appointed as Asstt. Engineer in PWD on 30.09.1996, thereafter, he was promoted to the post of Asstt. Executive Engineer in the year 2002 – Subsequently, a post for ex-cadre Executive Engineer was created and respondent no.1 was promoted to the said post by notification dated 02.04.2005 – Later, respondent no.1 was granted regular promotion by encadering him as Executive Engineer on recommendation of the selection committee on 27.07.2005 – It was alleged that there were only 10 vacancies for Executive Engineer and the Selection Board had wrongly assessed that there were 13 vacancies, and respondent no.1 was favoured and given 13th position in select list, after which his encadrement was recommended – Writ petition – Single Judge of the High Court held that encadrement of respondent no.1 to the post of Executive Engineer was illegal and respondent no.1 was guilty of committing fraudulent acts in getting his promotion to the post of Executive Engineer which was contrary to the Service Rules as he had not put in minimum of five years of service – Single Judge also held that the Selection Committee erred in holding the number of vacancies as 13 against 10 – Division Bench of High Court set aside the order of the Single Judge and dismissed the writ petition on the ground of delay and laches – On appeal, held: The findings of the Single Judge of the High Court were correct – It was a case of fraud 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 13 posts when, in fact, there were only 10 posts of Executive Engineer on that date and that was done with the purpose of accommodating respondent no.1 – 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 5 years – Fraud cannot be ignored on the ground that the action challenged was belated and when there was a reasonable explanation for such delay – Thus, judgment of the Single Judge of the High Court restored.
Allowing the appeals, the Court
HELD: 1. It becomes clear from the records that ex-cadre post of Executive Engineer 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. 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 (ex-cadre) 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 and respondent No.1 was at the thirteenth position in the Select List, his encadrement was recommended. [Paras 19, 20][1023-E-H; 1024-A-B]
2. 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. [Para 21] [1024-C-F]
3. The findings of the Single Judge of the High Court 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. Further, findings of the 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 are correct. [Para 22][1024-G-H; 1025-A]
4. 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 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. [Paras 23 and 24][1025-D-F]
5. 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. [Para 27][1026-D-E]
6. It was a case of fraud 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. [Para 28][1026-F-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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