Gauhati High Court
Debajit Das vs The State Of Assam & 9 Ors on 7 August, 2015
Author: P. K. Saikia
Bench: P. K. Saikia
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIOZRAM AND ARUNACHAL
PRADESH)
Writ appeal 138/2015.
Shri Debajit Das, son of late Dharani Dhar
Das, House 1, Elora Path, By-lane of Ajanta
Path, Survey, Beltola, Guwahati-28.
...Appellant
-versus-
1) State of Assam represented by the Additional
Chief Secretary(Works).
2) The Commissioner and Special Secretary,
Public Works(Road) department.
3) The Secretary, Public Works department.
4) The Secretary, Personnel department.
5) The Deputy Secretary, Personnel department.
6) The Deputy Secretary, Public Works(Road)
department.
7) The Chief Engineer, Public Works(Road)
department.
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8) The Chief Engineer, Public Works(Building
and NH) department.
9) Sri Ajit Kumar Bhuyan, son of late Prasanna
Kumar Bhuyan, Milan Nagar, C.R. Building
post office, Dibrugarh.
10) Sri Ameetav Sarma, son of late Bhddhi
Sarma, Bhagirathi Apartment, Zoo-Narangi
Road, Guwahati-21.
11) Md Abdul Kader, son of D. Ali, House 14,
Nurun Nahar Path, Sijubari, Hatigaon,
Guwahati-28.
12) Sri Pranab Kr Rabha, son of late Pabitra Kr
Rabha, Puranivita, Dudhnoi, Assam.
13) Assam PWD Engineers Service Association
represented by its General Secretary, Sri
Hiten Kalita, son of Sri Upendra Ch Kalita,
1E, Ornate Enclave, August Kranti Path,
Beltola, Guwahati-28.
Respondent.
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PRESENT HON'BLE THE CHIEF JUSTICE(ACTING) MR. K. SREEEDHAR RAO HON'BLE MR. JUSTICE P. K. SAIKIA For the appellant : Sri KN Choudhury Sri R. Vankatraman Sr. Advocate, with Sri J Patowary Sri PP Medhi Smt. R Kakati.
For the State : Shri AC Buragohain
Advocate-General.
For the respondent 9 : Shri DK Mishra
Sr. Advocate, with
Shri PN Goswami.
Advocate
For the respondent 10 : Shri TJ Mahanta.
Advocate
For the respondent 12 : Shri D.K. Das.
Advocate
Date of hearing and judgment : 7.8.2015
JUDGMENT-AND-ORDER
Chief Justice(Acting) Shri K. Sreedhar Rao
Appellant was appointed as Assistant Engineer(AE) in the year 1996 and he was promoted to the post of Assistant Executive Engineer(AEE) in the month of December, 2002 along with respondent 9 to 12 in this appeal. Appellant was promoted as excadre Executive Engineer(EE) and he was encadred as EE by virtue of his selection on 27.7.2005. Appellant continued to work as EE since the date of his encadrement. There was selection for the 4 post of Superintending Engineer(SE). There were six de-reserved vacancies of SE. Four more posts of SE fell vacant. That apart one DN Bhattacharyya retired as Additional Chief Engineer(ACE) and to his post Ajit Kr Kakati who was working as SE was promoted. There were departmental proceedings against one Jiauddin Ahmed who was working as SE and he was ultimately imposed the punishment of compulsory retirement. One Kamakhya Prasad Bezbaruah who was working as SE was sent on deputation to National Highway Authority of India (NHAI) for a period of five years. The deputation period was to expire in October, 2013 but the NHAI made a request to the state government that as a special case his deputation be extended to two more years that is till October, 2015. Hence the total number of vacancy according to the selection committee was 13. As per the norms fifty-two persons who were working as EEs were considered. The appellant was one of those persons whose name was considered and was eventually promoted as SE.
2) The petitioner in WP(C) 2958/2014 is the respondent 12 in this appeal. Petitioner 1 in WP(C) 7/2013 is dead and the second petitioner Chandan Sarma withdrew himself from the writ petition thereby the writ petition had became infructuous before the learned Single Judge. Respondent 13 is the Assam PWD Engineers' Service Association(who will hereinafter be referred to as Association for the sake of brevity). 5
3) Even before the selection to the post of SE there were petitions filed against the appellant challenging his encadrement; however after his selection the respondent 11 who was also working as EE was not selected, therefore he challenged the selection of appellant as SE as being illegal and the number of posts notified is in excess of the actual vacancy.
4) The Association had made a representation to the government that the appellant's excadre appointment and encadre appointment to the post of EE is illegal and contrary to the rules and also his selection to the post of SE is illegal. Upon the representation of the Association the government has constituted an inquiry committee headed by the Additional Chief Secretary of the Personnel department. Inquiry was held and recommendation made to demote the appellant. When the government was about to pass the order of his demotion from the post of SE the appellant filed a writ petition[WP(C) 5/2015]. Eventually, the government passed an order directing the appellant to be demoted to the post of ex-cadre EE during the pendency of the writ petitions. The learned Single Judge clubbed all the writ petitions for hearing and ultimately held that -
(i) The encadrement of the appellant to the post of EE is illegal. As the date when the appellant was promoted from the post of AEE to the post of an excadre EE and thereafter within five months when he was encadred 6 to the post of EE he had not completed the required five years of qualifying service and that he had put in only three years of service.
(ii) The learned Single Judge relied on the inquiry report to come to the conclusion that the number of vacancy in the cadre of SE on the date when the selection was made was only 10, therefore the selection committee grossly erred in holding the number of vacancy 13 as against 10.
(iii) The learned Single Judge found that the selection made at the review DPC and promoting the respondent 11 as SE consequent to the orders passed in the enquiry by the government is legal and valid. The learned Single Judge also found that the appellant herein is guilty of committing fraudulent acts in getting his promotion to the post of EE out-of- turn and contrary to the service rules when he has not put in minimum five years of service the encadrement to the post of EE is not gazetted and that the records were concocted to show that the said promotion was said to have been gazetted.
(iv) The learned Single Judge negatived the plea of the appellant that the inquiry committee has committed gross error in not giving him an opportunity of hearing before passing the order of his demotion. 7
(v) The learned Single Judge also negatived the contention of the appellant that the writ petitions filed by the respondents suffer from delay and latches and held that there was a systematic manipulation at various stages to which complicity of the appellant cannot be ruled out. In the result the learned Single Judge upheld the order of the government in demoting the appellant to the post of EE(ex-cadre). The appellant aggrieved by the said order has filed this appeal.
5) Shri R. Venkatraman and Sri KN Choudhury, the learned senior counsel appearing for the appellant urged the following grounds to assail the order of the learned Single Judge.
(i) The writ petition assailing the order of encadrement of the appellant to the post of EE is filed by the respondent 12 quite belatedly ~ after nine years. The contention that the respondent 12 did not know about the encadrement and it was not gazetted is untenable and a flimsy explanation. Respondent 12 although senior to him in the cadre of AEE after the promotion of the appellant to the post of EE(ex-cadre and en-cadre, both) he was working under the appellant.
(ii) One Dipu Dutta who was also working as AEE and senior to appellant herein filed a writ petition[WP(C) 4293/2014] challenging the 8 promotion of the appellant to the en-cadre post of EE and which came to be dismissed on the ground of delay and latches. Respondent 12 and Dipu Dutta who are senior to appellant in the cadre of AEE and all of them belonging to the common category at one point of time when one of the persons in the category challenged the promotion and encadrement of appellant to the post of EE and the said writ petition when came to be dismissed on the ground of delay and latches the same reason should apply to the petition filed by the respondent 12.
(iii) The contention that the encadrement to the post of EE of the appellant was not gazetted therefore they were not aware of the said fact hence there is no delay and latches and that the respondent 12 came to know about the encadrement to the post of EE just before filing of writ petition and therefore his petition cannot be dismissed on the ground of delay and latches as there was no public notice in the official gazette about the encadrement is an untenable argument.
(iv) The Association has no locus standi to espouse the cause of the AEEs, since in service jurisprudence it is only the affected party who should challenge it by way of a writ petition.
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(v) The enquiry conducted by the government at the instance of the Association is also illegal. The government ought not to have conducted an inquiry when the lis was pending before the High Court. In this regard the decision of this Court in Akaddas Ali v. State of Assam and others[(2014) 4 GLR 3] para 15 is relied on.
(vi) The inquiry committee has committed gross illegality in not complying with the principles of natural justice: appellant was not notified and heard before the inquiry committee had given its findings and report to the government.
(vii) The inquiry committee has grossly erred in calculating the number of vacancy available for selection to the post of SE ~ 10.
(viii) The previous selection committee has held the number of posts vacant in the SE cadre 13. Apart from the 10 vacancies held to be available for promotion by the inquiry committee three more vacancies which were considered as vacant by the selection committee is in accordance with law since a proposal for 13 vacancies was put up for consideration before the Chief Minister who delegated to the PWD minister to consider the proposal and decide the matter. The minister of PWD on consideration of the proposal 10 has held that the number of vacancy 13 and the thirteen posts of SE should be filled up.
6) It is submitted that the inquiry committee has committed a grave error in not taking into account the vacancy of Ajit Kr Kakati, SE, who came to be promoted as ACE even before the selection therefore the said vacancy was available for promotion. One Jiauddin Ahmed who was working as SE was subjected to disciplinary inquiry and was given compulsory retirement even before the selection and therefore the said vacancy was also available for promotion. One Kamakhya Prasad Bezbaruah, SE, was on deputation to NHAI and his deputation was to expire by October, 2013, however, the NHAI has asked for his further extension to two more years even beyond the permissible period of five years. In that regard an office memorandum dated 19th July, 1997 of the finance department is produced which declares that any person who overstays after the deputation of five years is deemed to have been absorbed in the deputed department. In view of the said circular it is submitted that the post of Kamakhya Bezbaruah was also held to be vacant and available for promotion. In that view the PWD minister was legally correct and proper in holding that there were thirteen vacancies of SEs to be filled up.
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7) The contention that the appellant has played fraud and systematically manipulated the things at every stage is untenable and there is no role that can be attributed to the appellant to say that he could have influenced the PWD minister in determining the number of vacancy available for promotion to SE. The inquiry committee contrary to the notification of the government and the material on record has given a wrong finding that the number of vacancy available for promotion to the post of SE is only 10. The conduct of the inquiry committee in not giving notice to appellant and in determining the number of vacancy contrary to records disclose mala fides on the part of the inquiry committee. It is further argued that the number of vacancy of SE as on August, 2015 that fell vacant after the selection is as follows.
1) Shri Ratneshwar Saikia, SE Retired on 31.3.2015
2) Shri Jitendra Saikia, SE. Retired on 31.3.2015
3) Shri Krishna Das Talukdar, SE. Retired on 31.7.2015
4) Shri Ajit Kumar Kakati, SE. Promoted to Addl.
Chief Engineer on
30.6.2015.
5) Shri Aparup Baruah, SE -do-
6) Kalyan Ch Hazarika, CE. Expired on
11.5.2015.
8) It is submitted that even though Kamakhya Prasad Bezbaruah is
repatriated to the parent department it is not necessary that the promotion of the appellant to the post of SE should be disturbed because Bezbaruah is 12 repatriated and joined the parent department on 20.7.2015 when there were four vacancies of SEs apart from the promotions effected on 17.10.2014 therefore Kamakhya Bezbaruah could be accommodated and could be considered senior to the appellant.
9) The learned Advocate-General per contra contended that the promotion of the appellant to the post of ex-cadre EE and his encadrement within five months is totally illegal and contrary to the service rules. The inquiry committee has found that lots of manipulations have taken place. The encadrement of the appellant was not gazetted but however records were manipulated to show that the encadrement has been gazetted. There is also a charge against JN Sharma the then Dy Secretary that he has put up wrong and misleading note before the personnel department, the selection committee and as well before the PWD minister in arriving at the number of vacancies available for selection to the post of SE. The appellant being the beneficiary of fraud he should not be permitted to take benefit of fraudulent acts when the promotion to the post of EE in itself is illegal. The appellant cannot claim any further promotion to the post of SE.
10) Counsel for the respondent 12 Sri DK Das has vehemently submitted that the plea of delay and latches raised by the appellant is untenable. When it is shown that fraud and manipulation is played by the appellant 13 and when the encadrement to the post of EE is not notified the respondent 12 cannot be accused of guilty of delay and latches. With regard to the writ petition of Dipu Dutta it is argued that the intention behind the writ petition becomes suspect and doubtful to be believed that it could have been set up to create a ground for disposal of the petition of respondent 12 on the ground of delay and latches.
It is argued that the contention that when the appellant was not given an opportunity of hearing before the inquiry committee the inquiry becomes vitiated is untenable since notice to the appellant was redundant and was only an empty formality. In this regard the counsel relied on the decision of the Supreme Court in Aligarh Muslim University and others v. Mansoor Ali Khan[(2000) 7 SCC 529] wherein the Supreme Court has found that giving notice is redundant, thus propounds a doctrine of "useless formality".
The inquiry revealed that there have been serious manipulations of fraudulent concoction of records of the order of encadrement having been gazetted but in fact not been gazetted thus shows the act of fraud was played by the appellant. The dismissal of the writ petition of Dipu Dutta on the ground of delay and latches cannot come in the way of respondent 12's successfully arguing his petition and that the learned Single Judge has considered all the material on record and came to the sound and proper 14 conclusion that there is no delay and latches and there are acts of fraud hence the order passed by the learned Single Judge is sound and proper.
11) Learned senior counsel Shri Niloy Dutta appearing for the Association has submitted that the order of promotion of the appellant to the post of EE(ex-cadre and en-cadre, both) being illegal and contrary to rules and that the learned Single Judge has rightly found the complicity of the appellant in taking the illegal benefit of promotion is a valid finding. The learned counsel relied on the decision of the Supreme Court in Gadde Venkateswara Rao v. Govt. of A.P.[AIR 1966 SC 828 and (1966) 2 SCR 172]. The Supreme Court in para 19 of the judgment made the following observations.
"19. The result of the discussion may be stated thus : The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under s. 72 of the Act to review an order made under s. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the 15 Government dated April 18, 1963 ? If the High Court had quashed the said order, it would have restored an illegal order-it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case".
12) In this case the fact that the inquiry authority breached the principles of natural justice and did not give opportunity to the appellant may be a venial infraction, but on the basis of the said venial infraction it is not permissible in law to restore an illegal order of promotion of the appellant to the post of EE under the writ jurisdiction.
13) Learned senior counsel Shri DK Mishra appearing for the respondent 11 has strenuously contended that the government order of the finance department dated 19th July, 1997 which declares that the deemed vacancy of the post when a person on deputation after expiry of five years period does not repatriate to the parent department is illegal and such legal fiction created by the circular is illegal and such legal fiction can be created only by law. In this regard the learned senior counsel referred to the decision of the Supreme Court in Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others[(2010) 13 SCC 336]. The Supreme Court in para 14 of the judgment made the following observations. 16
"14. The legislature in its wisdom has not enacted any deeming provision providing that in case the resolution is not considered and finally decided by the Registrar within a period of six months, the resolution shall become effective and operative. It is the exclusive prerogative of the legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. Even if a legal fiction is created by the legislature, the court has to ascertain for what purpose the fiction is created, and it must be limited to the purpose indicated by the context and cannot be given a larger effect. More so, what can be deemed to exist under a legal fiction are merely facts and no legal consequences which do not flow from the law as it stands. It is a settled legal proposition that in absence of any statutory provision, the provision cannot be construed as to provide for a fiction in such an eventuality. More so, creating a fiction by judicial interpretation may amount to legislation, a filed exclusively within the domain of the legislature. (Vide Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Services Society Ltd".".
14) The learned senior counsel referred to the decision of the Supreme Court in Triveni Shankar Saxena v. State of U.P. and others[1992 Supp (1) SCC 524], wherein the phrase "lien in government service" has been elucidated. When a person holds over any post who is on deputation in the parent department and when such person is holding lien that post would not be construed as a vacant post till the person holding lien gets absorbed in a substantive post in any other department or in the department where he had been on deputation.
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15) In the instant case the request of the NHAI for extension of the services of Kamakhya Bezbaruah to a further period of two years after the deputation period of five years was permissible under the law. In fact Kamakhya Bezbaruah was repatriated in the month of July, 2015 therefore reckoning the deputation vacancy of Kamakhya Bezbaruah as a vacant post for promotion is illegal and contrary to law.
16) It is argued that assuming for a moment that there were only 12 posts the appellant would not have been in the zone of consideration and he came to the zone of consideration because of wrong calculation of vacancy as 13. When there are 12 vacancies the selection process is vitiated for reckoning the number of vacancy as 13 and considering the appellant in the zone of consideration and eventually promotion to the post of SE is illegal.
17) The learned senior counsel referred to the decision of the Supreme Court in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another v. M. Tripura Sundari Devi[(1990) 3 SCC 655, wherein the doctrine of fraud on legislature and fraud on the Constitution has been enunciated. In para 6 of the judgment the Supreme Court made the following observations.
"6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing 18 authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact".
In the context of the ratio laid down it is argued that this is a clear case of fraud in reckoning the number of vacancy as 13. It is reckoned only to accommodate the appellant. Besides, he also argued that the promotion to the post of EE(ex-cadre and en-cadre, both) is also illegal and contrary to rules and this fact also clearly indicates an element of fraud and the appellant being the beneficiary of the fraud he is not entitled to take a plea of delay and latches.
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 latches will come in the way of respondent 12 challenging the order of promotion of the appellant.
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The first part of the question is answered in the affirmative and the second part is in the negative.
(ii) Whether the government was right in conducting an inquiry when the writ petitions were pending before the Court.
The question is answered in the negative.
(iii) Whether the inquiry committee was wrong in breaching the principles of natural justice in not giving an opportunity of hearing to the appellant.
The question is answered in the affirmative.
(iv) Whether the Association has any locus standi in the matter.
The question is answered in the negative.
(v) Whether the findings of the inquiry committee that there are only 10 vacancies available for promotion to the post of SE and consequent to the demotion of the appellant to the post of EE(ex-cadre). 20
The question is answered in the affirmative.
(vi) Whether the order of the government in upsetting the order of promotion of the appellant and reverting him to the post of EE(excadre) is illegal.
The question is answered in the affirmative.
(vii) Whether the appellant is entitled to any equities.
As per the final order.
19) For convenient reference the orders of promotion of the appellant to the post of EE(excadre) and EE(encadre) and the order of creation of an ex- cadre post of EE are extracted hereunder.
"ORDER BY THE GOVERNMENT OF ASSAM NOTIFICATION.
"NO.RBEB.34/2005/3 Date Dispur, the 2nd April, 2005.
Sri Debajit Das, AEE, PWD, PWD, Development Branch, Office of the Chief Engineer, PWD(Roads) is temporarily promoted and allowed to officiate as EE PWD, RDOP Cell, Office of the Chief Engineer, PWD(Roads) w.e.f the date of taking over charge until further order.
This promotion has been made against the Ex-cadre post of EE, PWD created vide this Deptt's letter No.RBEB.34/2005/2, dtd. 02.04.05 with the approval & concurrence of Personnel & Finance Deptt. vide their U.O. No. 178/05, dtd. 15.02.05 and FEC(ii)296/2005, dtd. 31.03.05 respectively".21
Sd/-A.P.Borgohain Commissioner & Spl. Secy. to the Govt of Assam Public Works Department".
"ORDERS BY THE GOVERNOR OF ASSAM NOTIFICATION.
"NO.CON.39/2001/Pt/176 Date Dispur, the 7th September, 2005.
The Governor of Assam is pleased to regularise the services of Sri Debajit Das, EE(Ex-cadre) and on being selected by the Selection Board Sri Das is temporarily promoted to the rank of EE(En-cadre) and in the interest of public service posted as EE, RD&QP Cell, Office of the Chief Engineer, PWD, Roads, in scale of pay of Rs. 8,100/- to Rs. 13,025/- p.m. w.e.f. the date Sri Das took over the charges.
Sd/-J.N.Sharma Deputy secy. to the Govt of Assam, Public Works Deptt. Confidential Cell".
"NO.RBEB.34/2005/2 Dated Dispur, the 2nd April, 2005. To: The Accountant General(A&E), Assam Beltola, Maidamgaon, Guwahati-29.
Sub: Creation of an Ex-cadre post of Executive Engineer, PWD. Sir, I would like to carry the sanction of the Governor of Assam to the creation of one No. post of Ex-cadre Executive Engineer in the scale of pay of Rs. 8,100-325-10,700-EB-325-11,025-400-13,025/- p.m. w.e.f. the date of issue of this letter and for the period up-to 28.02.2006. Beyond 28.02.2006, PWD will move for further retention of this post, if necessary, with name of the incumbent. This creation is subject to the following conditions:
1. The Ex-cadre post of E.E., PWD will be personal to Sri Debajit Das.
2. The Ex-cadre post of E.E., PWD shall stand abolish as soon as Sri Debajit Das gets regular promotion as EE, PWD in the parent cadre.
This has been issued with the approval and concurrence of Personnel & Finance Deptt. vide their U.O. No.178/05, dtd. 15.02.05 and FEC(ii)296/2005, dtd. 31.03.05 respectively.
Yours faithfully, Deputy Secy. to the govt. of Assam Public Works(Estt.B Branch) Deptt".
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20) It is no doubt that the promotion of the appellant to the post of EE(encadre) and consequent encadrement is contrary to the service rules, since he had not put in the required service of five years to be eligible to the promotion to the post of EE. The condition in the promotion order that the officer "over the post so encadred" should be in the lowest position till the senior category comes to the position appears to be an untenable condition that could be attached to the promotion under the service rules. There appears to be compounded illegalities. The promotion may be illegal. So much so the conditions stipulated is also illegal. Promotions have to be granted according to the service rules.
21) The question arises whether the delay and latches has any significance in the matter and so also as contended by the learned senior counsel Shri N Dutta whether upholding promotion to the post of EE amounts to giving effect to an illegal order and whether such thing is permissible in writ jurisdiction. The facts in this case appear to be a conundrum situation: one principle of law is in conflict with the other. Therefore the Court has to carefully weigh the facts and the material in order to uphold which principles of law should be made applicable to the facts of the case.
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22) It is true that the Court in writ jurisdiction should not give effect to illegal orders. At the same time it is also true that the writ jurisdiction also recognises the principles of delay and latches. Here it is a case where the respondent 12 has filed a petition with a delay of nine years. It is pertinent to note that one Dipu Dutta who was a colleague of respondent 12 had filed a writ petition, maybe subsequent to the one filed by the respondent 12 which came to be dismissed on the ground of delay and latches. The explanation given by Dipu Dutta and the one given by respondent 12 is almost similar. Respondent 12 says he was not aware of the encadrement and it was not gazetted. The fact remains that the respondent 12 was working under the appellant as his subordinate. Therefore the non-gazetting of the encadrement of the appellant would be an inconsequential circumstance(since even at the time when the writ petition was filed by the respondent 12 there was no gazette notification of encadrement). The order of encadrement is challenged belatedly after nine years and more so on the same set of facts the learned Single Judge in Dipu Dutta's case has also rejected the petition on the ground of delay and latches. Therefore in fitness of things the principle of delay and latches plays a dominant role.
23) A vehement focus was given on the fraud. The circumstances relied on to link the complicity of the appellant with the fraud are broadly on the ground that he was beneficiary of the fraud. Secondly, the records regarding 24 gazetting were manipulated. Thirdly, the one JN Sarma who is the deputy secretary then had manipulated and gave deliberately an incorrect number of vacancy of SE for the purpose of selection and promotion. Last but not the least, the appellant was working as OSD to the Chief Minister at the time when he was promoted to the post of excadre EE and within five months he came to be encadred becuase of the clout he enjoyed as OSD to the Chief Minister, he was able to manipulate. The last circumstance pointed out at the first blush appears to be an impressive argument but on deeper scrutiny of the circumstance the said reason cannot be a decisive factor to hold that the appellant had played any fraudulent role in manipulating the things. May be that generously some undue favour of promotion contrary to the rules was given to him. Merely because the appellant takes the benefit of such favour he cannot be accused of manipulating or engineering the entire promotional process. The promotion in question to EE could be called as illegal but no fraud can be attributed to appellant in the matter. Therefore the finding of the learned Single Judge that the appellant had played fraud and had complicity in manipulating the promotions at every stage appears to be based on mere surmise and there is no evidence to that effect.
24) The right of the Association to move the government to inquire into the matter in the ordinary circumstances could not have been faulted, but 25 when the matter was pending in the High Court all the contesting parties were before the Court arguing their case. It was not proper for the government to have conducted a parallel inquiry. The decision of the Supreme Court in State of U.P. case(supra) relied on by Sri DK Mishra perhaps does not seem to have any application to the facts of the case. The matter would be otherwise if the contest was between one party and the government in such a case the government can retract from its stand and correct the illegal order passed. When the multiple conflicting orders of the government were in challenge before the Court when there are two or more parties contesting against each other on the conflicting orders of the government it is not fair on the part of the government to decide the matter in favour of one party. The government should have laid off its hands and allowed the matter to be decided by the Court. In this context the ratio laid down by this Court in Akaddas Ali v. State of Assam and others[(2014) 4 GLR 3] appears to have a bearing on the facts of the case.
25) The conduct of inquiry also appears to be one-sided. The inquiry authority did not give any notice to the appellant. It cannot be said that the appellant had no case to argue before the inquiry committee and that cannot be termed as 'useless formality'. The inquiry authority also seems to have overlooked the material on which the selection committee came to the conclusion that there are 13 vacancies of SEs to be filled up. 26
26) It may be that the notification of July 1997 which declares that if a person overstays on deputation beyond the five years is deemed to have been absorbed may be illegal because the person on deputation will have lien in the post in the parent department until the lien gets terminated and the said post cannot be considered as vacant, but nonetheless 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 latches it is not proper to upset his position and also his promotion to the post of SE 27 having been worked out on the basis that there are 13 vacancies which appears to be a bona fide mistake. In view of subsequent developments new vacancies of SE have arisen. Kamakhya Bezbaruah who is repatriated will continue to hold the post of SE and he would be senior to appellant. With the above observations the writ appeal is disposed of.
JUDGE CHIEF JUSTICE(ACTG.)
na/
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