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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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