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Supreme Court of India
State Of U.P. vs Vikash Kumar Singh on 22 November, 2021Author: M.R. Shah
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6868 OF 2021
State of U.P. & Ors. …Appellant(s)
Versus
Vikash Kumar Singh & Ors. …Respondent(s)
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 24.07.2020 passed by the Division Bench of the High
Court of Judicature at Allahabad (Lucknow Bench) by which the Division
Bench of the High Court has dismissed the Special Appeal (Defective
Complaint No.187 of 2020) filed by the appellants herein- State of U.P.
and Others confirming the judgment and order passed by the learned
Single Judge quashing and setting aside the eligibility lists dated
18.03.2019 and 10.05.2019 of the Superintending Engineers (Civil) for
promotion to the post of Chief Engineer (Civil) Level-II from the
Signature Not Verified
Digitally signed by R
Natarajan
department and further issuing a writ of mandamus, commanding the
Date: 2021.11.22
16:49:58 IST
Reason:
appellants – competent authority to prepare the eligibility list of the
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Superintending Engineer (Civil) including the names of the respondents
– original writ petitioners for promotion to the post of Chief Engineer
(Civil) Level – II by granting them relaxation in minimum length of service
in accordance with the U.P. Government Servants Relaxation in
Qualifying Service for Promotion Rules, 2006, the State of U.P. and
others have preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:-
2.1 The respondents – original writ petitioners (hereinafter referred to
as the “original writ petitioners”) are discharging their duties as
Superintending Engineers in different places. They claim promotion to
the post of Chief Engineer (Civil) Level-II. The recruitment to the post of
Chief Engineer (Civil) Level – II is governed by the U.P. Service of
Engineers (Irrigation Department) (Group A) Service Rules, 1990
(hereinafter referred to as “Rules, 1990”). As per Rule 5(iii) of the said
Rules, promotion to the post of Chief Engineer shall be from amongst
the substantively appointed Superintending Engineers in the Civil or
Mechanical Branch, as the case may be, who have completed twenty
five (25) years of service (including at-least three years’ service as
Superintending Engineer) on the first day of the year of recruitment. As
per the Office Circular dated 22.03.1984 issued by the State
Government laying out the guidelines for selection/promotion to the
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posts within the purview of the Public Service Commission, the criteria
for promotion shall be merit. The State Government have also framed
the U.P. Government Servant Relaxation in Qualifying Service for
Promotion Rules, 2006 (hereinafter referred to as “the Relaxation Rules,
2006”), which prescribe that in case the required number of eligible
persons are not available in the field of eligibility, the prescribed
minimum length of service may be relaxed upto 50% by the Government
in the Administrative Department in consultation with the Personnel
Department excluding the period of probation.
2.2 The appointing authority determined 26 vacancies of Chief
Engineer (Civil) Level -II for the Recruitment Year 2018-2019. The
eligibility list was to be prepared in terms of Rule 4 of Uttar Pradesh
Promotion by Selection (on posts outside the purview of Public Service
Commission) Eligibility List Rules, 1986 (hereinafter referred to as
“Rules, 1986”) containing the names of the senior most candidates, as
far as possible, three times the number of vacancies. Since there were
26 vacancies of Chief Engineer determined as per Rules, 1986, totaling
78 Superintending Engineers (Civil) were eligible to be considered for
promotion to the post of Chief Engineer.
2.3 On 23.07.2018, an eligibility list of Recruitment Year 2018-2019 of
74 Superintending Engineer (Civil) was prepared. The names of the
original writ petitioners found place at Sl. Nos. 60, 63, 64, 67, 72 and 74.
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However, as they had not completed 25 years of service, which was the
requirement as per the Rules, 1990, their cases were not considered for
promotion. Again on 07.03.2019, a revised eligibility list for the
Recruitment Year 2018-2019 of 59 Superintending Engineers (Civil) was
prepared and the names of the original writ petitioners were excluded on
the ground that they had not completed 25 years of service. Again on
18.03.2019, another revised eligibility list for the Recruitment Year 2018-
2019 of 44 Superintending Engineer (Civil) was prepared in which also
the names of the original writ petitioners were excluded. Lastly on
10.05.2019, 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
dated 18.03.2019 and 10.05.2019 of the Superintending Engineer (Civil)
for promotion to the post of Chief Engineer (Civil) Level–II in the
Department of Irrigation and Water Resources mainly on the ground that
they were entitled to the relaxation in minimum qualifying service as per
Relaxation Rules, 2006. By judgment and order dated 11.12.2019, the
learned Single Judge issued the writ of mandamus commanding the
competent authority to prepare the eligibility list of Superintending
Engineer (Civil) including the names of the original writ petitioners for
promotion to the post of Chief Engineer (Civil) granting them relaxation
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in minimum length of service in accordance with Relaxation Rules, 2006
as amended in the year 2013. Consequently, the learned Single Judge
quashed and set aside the eligibility lists dated 18.03.2019 and
10.05.2019 of Superintending Engineer for promotion to the post of
Chief Engineer.
2.4 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge, the State of U.P. filed the Special
Appeal before the Division Bench and by the impugned judgment and
order, the Division Bench of the High Court has dismissed the special
appeal and has confirmed the judgment and order passed by the
learned Single Judge.
3. Shri Sakha Ram Singh, learned Senior Advocate has appeared on
behalf of the appellants and Shri Rana Mukherjee, learned Senior
Advocate has appeared on behalf of the respondents – original writ
petitioners.
4. Shri Sakha Ram Singh, learned Senior Advocate appearing on
behalf of the State has vehemently submitted that admittedly the original
writ petitioners did not fulfil the eligibility criteria as contained in Rule
5(iii) of the Rules, 1990. It is submitted that therefore the names of the
original writ petitioners were rightly excluded from the eligibility list of
Superintending Engineer (Civil) for the promotion to the post of Chief
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Engineer (Civil). It is submitted that as such the eligibility list prepared
by the competent authority were in conformity with the provisions as
contained in Rule 5(iii) of the Rules, 1990.
4.1 It is submitted that grant of relaxation under the Relaxation Rules,
2006 is discretionary and no writ of mandamus can be issued directing
the competent authority to grant the relaxation. It is submitted that word
used in Rule 4 of Relaxation Rules, 2006 is ‘MAY’ and only in a case
where the required number of eligible persons are not available in the
field of eligibility. It is submitted that no employee can claim the
relaxation as a matter of right.
4.2 It is therefore submitted that as admittedly the original writ
petitioners did not fulfil the eligibility criteria of having completed 25
years of service, their names were not required to be included in the
eligibility list for promotion to the post of Chief Engineer. It is submitted
that the High Court has erred in quashing and setting aside the eligibility
lists dated 18.03.2019 and 10.05.2019, which as such were in absolute
consonance with the statutory provisions of Rule 5(iii) and 8(iii) of the
Rules, 1990.
4.3 Making above submissions, it is prayed to allow the present
appeal.
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5. Present appeal is opposed by Shri Rana Mukherjee, learned
Senior Advocate appearing on behalf of the respondents – original writ
petitioners. It is submitted that in the facts and circumstances of the
case and on giving cogent reasons the learned Single Judge rightly
issued the writ of mandamus commanding the appellants – competent
authority to grant relaxation to the original writ petitioners. It is submitted
that the learned Single Judge rightly considered that the eligibility list has
to be prepared applying the ratio of 1:3 so as to have more meritorious
candidates. It is therefore submitted that as solely on technical ground
of not completing 25 years of service, the names of the original writ
petitioners were excluded and there are specific Relaxation Rules, 2006,
which provide for relaxation in qualifying service, the High Court has not
committed any error in issuing the writ of mandamus to grant the
relaxation as per Rule 4 of the Relaxation Rules, 2006.
6. We have heard the learned Senior Advocates appearing for the
respective parties at length.
7. At the outset, it is required to be noted that the learned Single
Judge issued the writ of mandamus commanding the competent
authority to grant the relaxation as per Rule 4 of the Relaxation Rules,
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2006 in qualifying service and consequently has quashed and set aside
the eligibility lists dated 18.03.2019 and 10.05.2019. At the outset, it is
required to be noted that as such as per Rule 5(iii) of the Rules, 1990,
one of the conditions to be eligible is that the Superintending Engineer
must have completed 25 years of service (including at-least three years’
service as Superintending Engineer). It is an admitted position that the
original writ petitioners did not fulfill the eligibility criteria as they did not
have the qualifying service of having completed 25 years of service.
Thus, the eligibility lists were prepared by the department absolutely as
per Rule 5(iii) and Rule 8(iii) of the Rules, 1990. The names of the
original writ petitioners were excluded from the eligibility list of
Superintending Engineer for promotion to the post of Chief Engineer on
the ground that 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 the said eligibility lists, which as such were prepared absolutely
in accordance with the Rules, 1990.
7.1 The learned Single Judge thereafter while quashing and setting
aside the eligibility lists dated 18.03.2019 and 10.05.2019 has issued the
writ of mandamus commanding or directing the competent authority to
grant relaxation in qualifying service, which as such was permissible
under Rule 4 of the Relaxation Rules, 2006. The word used in the Rule
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4 of Relaxation Rules, 2006 is “MAY”. Therefore, the relaxation may be
at the discretion of the competent authority. The relaxation cannot be
prayed as a matter of right. If a conscious decision is taken not to grant
the relaxation, merely because Rule permits relaxation, no writ of
mandamus can be issued directing the competent authority to grant
relaxation in qualifying service. Therefore, the High Court has
committed a grave error in issuing the writ of mandamus commanding
the competent authority to grant relaxation in the qualifying service.
Consequently, the High Court has also erred in quashing and setting
aside the eligibility lists dated 18.03.2019 and 10.05.2019, which as
such were prepared absolutely in consonance with the Rules, 1990 and
Rules, 2006. The impugned judgments and orders passed by the
learned Single Judge as well as the Division Bench of the High Court are
not sustainable in law.
8. In view of the above and for the reasons stated above, the present
appeal succeeds. The impugned judgment and order passed by the
Division Bench passed in Special Appeal (Defective Complaint No.187 of
2020) and the judgment and order passed by the learned Single Judge
dated 11.12.2019 passed in Writ Petition No.14962(S/S) of 2019 are
hereby quashed and set aside. Consequently, the writ petition filed by
the original writ petitioners being Writ Petition No.14962(S/S) of 2019
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stands dismissed. Present appeal is allowed accordingly, however, there
shall be no order as to costs. Pending applications, if any, also stand
disposed of.
………………………………….J. [M.R. SHAH]
NEW DELHI; ………………………………….J.
NOVEMBER 22, 2021. [B.V. NAGARATHNA]
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