AJIT KR. BHUYAN AND OTHERS versus DEBAJIT DAS AND OTHERS

Citation: [2018] 13 S.C.R. 1012 · Decided: 23-10-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Leave Granted & Allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 13  S.C.R.
AJIT KR. BHUYAN AND OTHERS
v.
DEBAJIT DAS AND OTHERS
(Civil Appeal Nos. 10662 of 2018)
OCTOBER 23, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
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
[2018] 13  S.C.R. 1012
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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
AJIT KR. BHUYAN v. DEBAJIT DAS
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SUPREME CO

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