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TMI Blog2018 (10) TMI 2021X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 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 Enginee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification 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 bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ex-cadre 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 ex-cadre 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 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. 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 inelig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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