STATE OF U.P. & ORS. versus VIKASH KUMAR SINGH & ORS. on 22 November 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 24.07.2020 passed by the Division Bench of the HighCourt of Judicature at Allahabad (Lucknow Bench) by which the DivisionBench of the High Court has dismissed the Special Appeal (DefectiveComplaint No.187 of 2020) filed by the appellants herein- State of U.P.and Others confirming the judgment and order passed by the learnedSingle Judge quashing and setting aside the eligibility lists dated 18.03.2019and 10.05.2019 of the Superintending Engineers (Civil) for promotion tothe post of Chief Engineer (Civil) Level-II from the department andfurther issuing a writ of mandamus, commanding the appellants –competent authority to prepare the eligibility list of the SuperintendingEngineer (Civil) including the names of the respondents – original writpetitioners for promotion to the post of Chief Engineer (Civil) Level – IIby granting them relaxation in minimum length of service in accordancewith the U.P. Government Servants Relaxation in Qualifying Service forPromotion Rules, 2006, the State of U.P. and others have preferred thepresent appeal.

2. The facts leading to the present appeal in nutshell are as under:- 2.1 The respondents – original writ petitioners (hereinafter referredto as the “original writ petitioners”) are discharging their duties asSuperintending Engineers in different places. They claim promotion tothe post of Chief Engineer (Civil) Level-II. The recruitment to the postof Chief Engineer (Civil) Level – II is governed by the U.P. Service ofEngineers (Irrigation Department) (Group A) Service Rules, 1990(hereinafter referred to as “Rules, 1990”). As per Rule 5(iii) of the saidRules, promotion to the post of Chief Engineer shall be from amongstthe substantively appointed Superintending Engineers in the Civil orMechanical Branch, as the case may be, who have completed twentyfive (25) years of service (including at-least three years’ service asSuperintending Engineer) on the first day of the year of recruitment. Asper the Office Circular dated 22.03.1984 issued by the State Governmentlaying out the guidelines for selection/promotion to the posts within thepurview of the Public Service Commission, the criteria for promotionshall be merit. The State Government have also framed the U.P.Government Servant Relaxation in Qualifying Service for Promotion A

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ARules, 2006 (hereinafter referred to as “the Relaxation Rules, 2006”),which prescribe that in case the required number of eligible persons arenot available in the field of eligibility, the prescribed minimum length ofservice may be relaxed upto 50% by the Government in theAdministrative Department in consultation with the Personnel Departmentexcluding the period of probation.B

2.2 The appointing authority determined 26 vacancies of ChiefEngineer (Civil) Level-II for the Recruitment Year 2018-2019. Theeligibility list was to be prepared in terms of Rule 4 of Uttar PradeshPromotion by Selection (on posts outside the purview of Public ServiceCommission) Eligibility List Rules, 1986 (hereinafter referred to as “Rules,C1986”) containing the names of the senior most candidates, as far aspossible, three times the number of vacancies. Since there were 26vacancies of Chief Engineer determined as per Rules, 1986, totaling 78Superintending Engineers (Civil) were eligible to be considered forpromotion to the post of Chief Engineer.D

2.3 On 23.07.2018, an eligibility list of Recruitment Year 2018-2019 of 74 Superintending Engineer (Civil) was prepared. The names ofthe original writ petitioners found place at Sl. Nos. 60, 63, 64, 67, 72 and74. However, as they had not completed 25 years of service, which wasthe requirement as per the Rules, 1990, their cases were not consideredEfor promotion. Again on 07.03.2019, a revised eligibility list for theRecruitment Year 2018-2019 of 59 Superintending Engineers (Civil) wasprepared and the names of the original writ petitioners were excludedon the ground that they had not completed 25 years of service. Again on18.03.2019, another revised eligibility list for the Recruitment Year 2018-2019 of 44 Superintending Engineer (Civil) was prepared in which alsoFthe names of the original writ petitioners were excluded. Lastly on10.05.2019, one other revised list of 41 Superintending Engineers (Civil)was prepared excluding the names of the original writ petitioners.Therefore, the original writ petitioners preferred Writ Petition No.14962(S/S) of 2019 assailing before the High Court the eligibility lists datedG18.03.2019 and 10.05.2019 of the Superintending Engineer (Civil) forpromotion to the post of Chief Engineer (Civil) Level–II in the Departmentof Irrigation and Water Resources mainly on the ground that they wereentitled to the relaxation in minimum qualifying service as per RelaxationRules, 2006. By judgment and order dated 11.12.2019, the learned SingleJudge issued the writ of mandamus commanding the competent authorityH

to prepare the eligibility list of Superintending Engineer (Civil) includingthe names of the original writ petitioners for promotion to the post ofChief Engineer (Civil) granting them relaxation in minimum length ofservice in accordance with Relaxation Rules, 2006 as amended in theyear 2013. Consequently, the learned Single Judge quashed and set asidethe eligibility lists dated 18.03.2019 and 10.05.2019 of SuperintendingEngineer for promotion to the post of Chief Engineer.

2.4 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge, the State of U.P. filed the SpecialAppeal before the Division Bench and by the impugned judgment andorder, the Division Bench of the High Court has dismissed the specialappeal and has confirmed the judgment and order passed by the learnedSingle Judge.

3. Shri Sakha Ram Singh, learned Senior Advocate has appearedon behalf of the appellants and Shri Rana Mukherjee, learned SeniorAdvocate has appeared on behalf of the respondents – original writpetitioners.

4. Shri Sakha Ram Singh, learned Senior Advocate appearing onbehalf of the State has vehemently submitted that admittedly the originalwrit petitioners did not fulfil the eligibility criteria as contained in Rule5(iii) of the Rules, 1990. It is submitted that therefore the names of theoriginal writ petitioners were rightly excluded from the eligibility list ofSuperintending Engineer (Civil) for the promotion to the post of ChiefEngineer (Civil). It is submitted that as such the eligibility list preparedby the competent authority were in conformity with the provisions ascontained in Rule 5(iii) of the Rules, 1990.

4.1 It is submitted that grant of relaxation under the RelaxationRules, 2006 is discretionary and no writ of mandamus can be issueddirecting the competent authority to grant the relaxation. It is submittedthat word used in Rule 4 of Relaxation Rules, 2006 is ‘MAY’ and only ina case where the required number of eligible persons are not available inthe field of eligibility. It is submitted that no employee can claim therelaxation as a matter of right.

4.2 It is therefore submitted that as admittedly the original writpetitioners did not fulfil the eligibility criteria of having completed 25years of service, their names were not required to be included in theeligibility list for promotion to the post of Chief Engineer. It is submitted AB

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Athat the High Court has erred in quashing and setting aside the eligibilitylists dated 18.03.2019 and 10.05.2019, which as such were in absoluteconsonance with the statutory provisions of Rule 5(iii) and 8(iii) of theRules, 1990.

4.3 Making above submissions, it is prayed to allow the presentBappeal.

5. Present appeal is opposed by Shri Rana Mukherjee, learnedSenior Advocate appearing on behalf of the respondents – original writpetitioners. It is submitted that in the facts and circumstances of thecase and on giving cogent reasons the learned Single Judge rightly issuedCthe writ of mandamus commanding the appellants – competent authorityto grant relaxation to the original writ petitioners. It is submitted that thelearned Single Judge rightly considered that the eligibility list has to beprepared applying the ratio of 1:3 so as to have more meritoriouscandidates. It is therefore submitted that as solely on technical groundof not completing 25 years of service, the names of the original writDpetitioners were excluded and there are specific Relaxation Rules, 2006,which provide for relaxation in qualifying service, the High Court hasnot committed any error in issuing the writ of mandamus to grant therelaxation as per Rule 4 of the Relaxation Rules, 2006.

6. We have heard the learned Senior Advocates appearing for theErespective parties at length.

7. At the outset, it is required to be noted that the learned SingleJudge issued the writ of mandamus commanding the competent authorityto grant the relaxation as per Rule 4 of the Relaxation Rules, 2006 inqualifying service and consequently has quashed and set aside theFeligibility lists dated 18.03.2019 and 10.05.2019. At the outset, it is requiredto be noted that as such as per Rule 5(iii) of the Rules, 1990, one of theconditions to be eligible is that the Superintending Engineer must havecompleted 25 years of service (including at-least three years’ service asSuperintending Engineer). It is an admitted position that the original writGpetitioners did not fulfill the eligibility criteria as they did not have thequalifying service of having completed 25 years of service. Thus, theeligibility lists were prepared by the department absolutely as per Rule5(iii) and Rule 8(iii) of the Rules, 1990. The names of the original writpetitioners were excluded from the eligibility list of SuperintendingEngineer for promotion to the post of Chief Engineer on the ground thatH

they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules,1990. Therefore, as such, the High Court ought not to have set aside thesaid eligibility lists, which as such were prepared absolutely in accordancewith the Rules, 1990.

7.1 The learned Single Judge thereafter while quashing and settingaside the eligibility lists dated 18.03.2019 and 10.05.2019 has issued thewrit of mandamus commanding or directing the competent authority togrant relaxation in qualifying service, which as such was permissibleunder Rule 4 of the Relaxation Rules, 2006. The word used in the Rule4 of Relaxation Rules, 2006 is “MAY”. Therefore, the relaxation maybe at the discretion of the competent authority. The relaxation cannot beprayed as a matter of right. If a conscious decision is taken not to grantthe relaxation, merely because Rule permits relaxation, no writ ofmandamus can be issued directing the competent authority to grantrelaxation in qualifying service. Therefore, the High Court has committeda grave error in issuing the writ of mandamus commanding the competentauthority to grant relaxation in the qualifying service. Consequently, theHigh Court has also erred in quashing and setting aside the eligibility listsdated 18.03.2019 and 10.05.2019, which as such were prepared absolutelyin consonance with the Rules, 1990 and Rules, 2006. The impugnedjudgments and orders passed by the learned Single Judge as well as theDivision Bench of the High Court are not sustainable in law.

8. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed bythe Division Bench passed in Special Appeal (Defective Complaint No.187 of 2020) and the judgment and order passed by the learned SingleJudge dated 11.12.2019 passed in Writ Petition No. 14962(S/S) of 2019are hereby quashed and set aside. Consequently, the writ petition filedby the original writ petitioners being Writ Petition No.14962(S/S) of 2019stands dismissed. Present appeal is allowed accordingly, however, thereshall be no order as to costs. Pending applications, if any, also standdisposed of.

Devika Gujral

Appeal allowed.

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