Allahabad High Court
Satya Narain And Another vs State Of U.P. Thru Chief Secy. Lok Bhavan ... on 19 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1783, 2020 (1) ALJ 614 (2019) 9 ADJ 346 (ALL), (2019) 9 ADJ 346 (ALL)
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 05.08.2019 Delivered on 19.08.2019 1. Case :- SERVICE SINGLE No. - 13591 of 2019 Petitioner :- Satya Narain And Another Respondent :- State Of U.P. Thru Chief Secy. Lok Bhavan And Ors. Counsel for Petitioner :- Mukund Tewari Counsel for Respondent :- C.S.C.,Prabhaat Kumar Tripathi,Vivek Saxena CONNECTED WITH 2. Case :- SERVICE SINGLE No. - 13755 of 2019 Petitioner :- Arun Kumar Respondent :- State Of U.P. Thru Chief Secy. Lucknow And Others Counsel for Petitioner :- Mukund Tewari Counsel for Respondent :- C.S.C. ***** Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Mukund Tewari, learned counsel for the petitioners, Sri Ramesh Kumar Singh, learned Additional Advocate General assisted by Sri Ashutosh Singh learned Standing Counsel for the State-respondents and Sri Prabhat Kumar Tripathi, learned counsel for the opposite party Nos.5 and 6.
2. Since the identical question of laws and facts are to be adjudicated in both the writ petitions, therefore, both the writ petitions are decided by a common judgment and order.
3. By means of both these writ petitions, the petitioners have assailed the eligibility list dated 18.03.2019 of the Superintending Engineer (Civil) for promotion to the post of Chief Engineer (Civil), Level-2, Department of Irrigation and Water Resources have been prepared.
4. The petitioners have also assailed the eligibility list dated 10.05.2019 prepared by the opposite parties for promotion to the post of Chief Engineer (Civil), Level-2 in the same department.
5. This Court vide order dated 20.05.2019 in Writ Petition No.13755 (S/S) of 2019; Arun Kumar vs. State of U.P. & others has directed for status-quo, therefore, the Departmental Promotion Committee (here-in-after referred to as the "D.P.C.") could not convene and no promotion could be made from the post of Superintending Engineer (Civil) to the post of Chief Engineer (Civil) Level-2.
6. The sole question to be adjudicated is as to whether the promotion on the promotional post could be made strictly in terms of the Rules governing the field or those Rules may be interpreted in other way what has not specifically been prescribed in the particular Rules.
7. The particular Rules which govern the field is U.P. Service of Engineers (Irrigation Department) (Group-A) Service Rules, 1990 (here-in-after referred to as the "Rules, 1990") and the merit of the present case shall be tested under Rule 5 (iii) of the aforesaid Rules, 1990.
8. The brief facts for the purposes of adjudication of present case are that Sri Arun Kumar, the sole petitioner of Writ Petition No.13755 (S/S) of 2019 was regularly appointed on the post of Junior Engineer (Civil) in the department of Irrigation and Water Resources on 25.06.1979 after consultation with the U.P. Public Service Commission, Allahabad. He obtained the degree of B.E. (Civil) in the year 1990 and thereafter he promoted as Assistant Engineer (Civil) on ad hoc basis on 15.07.1993, however, he was regularly promoted as Assistant Engineer (Civil) on 22.09.1997. Thereafter, the petitioner was regularly promoted as Executive Engineer (Civil) on 14.06.2014 and regularly promoted on the post of Superintending Engineer (Civil) on 30.12.2016. He is placed at serial no.207 (4) (i) in the seniority list of Assistant Engineers (Civil).
9. Sri Satya Narain, petitioner No.1 and Sri Prem Kishore Satsangi, petitioner No.2 of Writ Petition No.13591 (S/S) of 2019 were appointed as Junior Engineer (Civil) in the department concerned on 06.03.1981 on ad hoc basis and at the time of appointment, both the aforesaid petitioners were having diploma in Civil Engineering. The petitioner No.2 was regularized on the post of Junior Engineer (Civil) on 29.06.1984 and the petitioner No.1 was regularized on the post of Junior Engineer (Civil) on 31.08.1984. The petitioner No.2 obtained the degree of Engineering in Civil Branch in the year 1985 whereas the petitioner No.1 obtained such degree in the year 1990. Both the aforesaid petitioners were promoted as Assistant Engineer (Civil) on ad hoc basis on 12.04.1991 and both the petitioners were regularly promoted as Assistant Engineer (Civil) on 22.09.1997. The petitioner No.2 was regularly promoted on the post of Executive Engineer (Civil) on 31.12.2010 whereas the petitioner No.1 was regularly promoted on the said post on 14.06.2014. The petitioner No.2 was regularly promoted on the post of Superintending Engineer (Civil) on 01.01.2017 whereas the petitioner No.1 was regularly promoted on the said post on 02.03.2017. The petitioner No.1 is placed at serial No.207 (27) in the seniority list and the petitioner No.2 is placed at serial No.2298 in the said seniority list of Assistant Engineers (Civil).
10. The precise grievance of the petitioners, so demonstrated by Sri Mukund Tewari learned counsel for the petitioners, is that by means of a eligibility list dated 18.03.2019 and 10.05.2019 of the Superintending Engineers (Civil) for promotion to the post of Chief Engineer (Civil) Level-2, the names of the petitioners have been excluded in a violation of Rules, 1990. However, their names were rightly included in earlier eligibility list dated 18.08.2017, 23.07.2018 and 07.03.2019 as the petitioners are fulfilling the eligibility criteria and are legally fit to be promoted on the basis of merit in accordance with the provisions of Rules, 1990.
11. Sri Mukund Tewari has also contended that the State Government issued a Government Order dated 20.11.2017 (Annexure No.11 to the writ petition) amending the procedure for promotion on the posts under the government service where the criteria is merit. By means of the instant Government Order, the earlier procedure prescribed under the earlier office circular dated 22.03.1984 under para-2 (2) has been amended and a new procedure has been laid down.
12. Sri Tewari has further submitted that para-2 (2) of the Office Circular dated 22.03.1984, which lays down the procedure in respect of posts where the criteria is merit, has been amended and the following procedure has been laid down in para-3- (Ka) of the Government Order dated 20.11.2017. It provides that all the candidates included in the eligibility list in the ratio of available vacancies shall be considered and their evaluation shall be done on the basis of annual confidential report of the last 10 years and if necessary the annual confidential reports of the entire service period can be looked into. The most meritorious candidate should be selected after comparing their comparative merit.
13. Sri Tewari has further submitted that para-3 (Kha) of the Government Order dated 20.11.2017 provides that the Selection Committee shall make assessment on the basis of entries made in the annual confidential report and other relevant document including orders passed by the Competent Authority on the representation made by the candidates and orders passed by the Hon'ble Courts and Tribunals.
14. Sri Tewari has also submitted with vehemence that para-3 (Ga) of the Government Order dated 20.11.2017 also provides that the Departmental Promotion Committee shall fix the bench mark categorizing the candidates in two category, namely, "UPYUKTA AUR ANUPYUKTA". The Selection Committee shall prepare a select panel from amongst the candidates of the "UPYUKTA" category and their names shall be arranged on the basis of seniority existing in the feeding cadre. The order of promotion shall be issued in their order of seniority. The candidates falling in the "UPYUKTA" category shall not be superseded while the candidates, who fall in the "ANUPYUKTA" category, shall not be considered.
15. Therefore, Sri Tewari has contended that a combined reading of the Rules, 1990 and Rules, 1986, Office Circular dated 22.03.1984 and the Government Order dated 20.11.2017 clearly establish that promotion to the post of Chief Engineer (Civil), Level-2, Department of Irrigation has to be carried out strictly in accordance with merit and the most meritorious officers have to be selected after evaluating the comparative merit of the eligible candidates.
16. However, Sri Ramesh Kumar Singh, learned Additional Advocate General vehemently opposed the aforesaid arguments of Sri Mukund Tewari by saying that the present petitioners were not fulfilling the criteria as prescribed under Rules, 1990 and on earlier occasion the particular rule was not properly examined, therefore, the names of the petitioners were finding place in earlier three eligibility lists. Sri Ramesh Kumar Singh has also submitted that since those petitioners are not eligible for promotion even as per Rule 5 (iii) of Rules, 1990, therefore, they cannot take aid of the Government Order dated 20.11.2017. The benefit of this Government Order would be given to those who are eligible persons. It has been noted that the specific submission to that effect, so raised by Sri Mukund Tewari, has not been disputed or denied in the counter affidavit, however, the aforesaid clarification has been given in para-32 of the counter affidavit.
17. Both the learned counsel for the parties have tried to submit the legal proposition in their own way, therefore, now this Court would consider and interpret the provisions of law governing the field.
18. The relevant provisions of law which have been cited by the learned counsel for the parties are now being tested herein.
19. Undisputedly, Rules, 1990 would govern the field for the present issue, therefore, the relevant provisions of Rules, 1990 are being reproduced here-in-below:-
Part-1 General "3. Definitions - In these rules, unless there is anything repugnant in the subject or context -
(e) "Service" means the Uttar Pradesh Service of Engineers (Irrigation Department) (Group "A");
(f) "member of the service" means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules, to a post in the cadre of the service;
(g) "substantive appointment" means an appointment, not being an ad hoc appointment, or a post in the cadre of the service, made after selection in accordance with the procedure prescribed for the time being by executive instructions issued by the Government;
Part -II Cadre
4. Cadre of the Service. (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.
(2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under sub-rule (1), be as given in the Appendix :
Provided that -
(a) the Governor may leave unfilled or may hold in abeyance any vacant post, without thereby entitling any person to compensation ;
(b) the Governor may create such additional permanent or temporary posts as he may consider proper.
Part-III Recruitment
5. Source of Recruitment - Recruitment to the various categories of posts in the Service shall be made from the following sources, namely:
(i) Executive Engineer. Civil or Mechanical- By promotion from amongst the substantively appointed Assistant Engineers in the Civil or Mechanical Branch, as the case may be, who have completed ten years service on the first day of the year of recruitment;
(ii) Superintending Engineer, Civil or Mechanical - By promotion from amongst the substantively appointment Executive Engineers in the Civil or Mechanical Branch, as the case may be, who have completed eighteen years service (including at least six years service as Executive Engineer, on the first day of the year of recruitment:
(iii) Chief Engineer, Civil or Mechanical-Level-II - By promotion from amongst the substantively appointed Superintending Engineers in the Civil or Mechanical Branch, as the case may be, who have completed twenty-five years' service (including at least three years service as Superintending Engineer) on the first day of the year of recruitment.
Part-IV Procedure for Recruitment
8. (3) The appointing authority shall prepare an eligibility list of the candidates in accordance with the Uttar Pradesh Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility List Rules, 1986 and place the same before the Selection Committee along with their character rolls and such other record pertaining to them, as may be considered proper."
It would be opt to clarify the aforesaid position that in Rule 5 (ii), after the amendment in Rules, 1990 in place of 18 years service, it is now 15 years service. Likewise, in rule 5 (iii) in place of 3 years service as Superintending Engineer, it is now one year service as Superintending Engineer.
20. Since under Rule 8 (iii), the eligibility list of the candidates shall be prepared under the Uttar Pradesh Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility List Rules, 1986 (here-in-after referred to as the "Rules, 1986"), therefore, the relevant part of the aforesaid Rules, 1986 is being reproduced here-in-below:-
"4. Preparation of eligibility list where the criteria is merit.- Where the criteria for promotion is merit, the appointing authority shall prepare a list of the senior most candidates containing names as far as possible, three times the number of vacancies subject to the minimum of eight provided that, if recruitment is to be made for vacancies occurring during more than one year of recruitment, separate eligibility list will be prepared in respect of each such year and in such a case while preparing the eligibility list for second and subsequent years of recruitment, the number of candidates to be included in the eligibility list shall be as follows."
21. Since the learned Additional Advocate General has referred the U.P. Engineering Services (Irrigation Department Group-B) Service Rules, 1993 (here-in-after referred to as the "Rules, 1993") to submit that since the petitioners were earlier in Group-B service as Junior Engineer, therefore, these rules would also be applicable in the present case. The relevant provisions of Rules, 1993 which have been referred by the learned Additional Advocate General are being reproduced here-in-below:-
"Part 1, Rule 3. Definitions:
(g) "member of service" means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules, to a post in the respective cadre of the Service
(h) "Service" means the Uttar Pradesh Service of Engineers (Irrigation Department) (Group B).
(i) "substantive appointment" means an appointment, not being an ad-hoc appointment on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules in accordance with the procedure prescribed for the time being by executive instructions issued by the Government; and Part-II, Cadre:-
Rule 4 (1): The strength of Service and of each category of posts therein shall be such as may be determined by the government from time to time.
Rule 4 (2): The Strength of the Service and of each category of posts therein shall, until orders varying the same are passed under sub-rule-1, be as given in Appendix A provided that (i) the governor may leave unfilled or may hold in abeyance any vacant post, without thereby entitling any person to compensation; (ii) the Governor may create such additional permanent or temporary post as he may consider proper.
Appendix-A-1 Name of post Assistant Engineer, Civil Assistant Engineer, Mechanical.
Part-III- Recruitment:-
Rule 5. Recruitment- Recruitment to the posts of the Assistant Engineer (Civil or Mechanical) in the Service shall be so arranged that -
1. 66 (2/3) % posts in the cadre are filled in by direct recruits selected through the Commission.
2. 33% posts in the cadre are filled in by promotion through the Commission out of which:
(a) in Civil Branch-
(i) 24% shall be filled from amongst substantively appointed Junior Engineers (Civil) who have completed Ten Years of service, as such, on the first day of the year of recruitment.
(Note:- In the like manner different percentage of quota of different post i.e. one percent of Computers (Civil), 7, (1/3)% for Junior Engineers holding B.Tech degree, 0.6 % for Computers (Civil), holding Bachelor Degree, 0.4% Research Supervisor, holding Bachelor Degree, is being defined/ assigned for being considered to be prompted on the post of Assistant Engineer)"
22. In view of the aforesaid provisions of law, Sri Mukund Tewari, learned counsel for the petitioners has submitted with vehemence that since the petitioners are substantively appointed Superintending Engineer (Civil), who have already completed more than 25 years of service in the Department of Irrigation and Water Resources including 1 year on the post of Superintending Engineer (Civil), therefore, they are eligible for promotion on the post of Chief Engineer (Civil), Level-2 in accordance with Rule 5 (iii) of the U.P. Service of Engineers (Irrigation Department) (Group-A) Service Rules, 1990.
23. Sri Tewari has further submitted that the criteria for promotion to the post of Chief Engineer (Civil), Level-2 is merit, therefore, the Appointing Authority has to prepare an eligibility list containing names as far as possible three times the number of vacancies in accordance with Rules, 1986 of vacancies. Annual confidential report and other documents shall be placed before the Selection Committee which will select the most meritorious candidate for promotion after considering the comparative merit of all the candidates.
24. Sri Tewari has contended that the Rules, 1986 have been framed by the State Government. Rule 4 of the Rules, 1986 provides that where the criteria for promotion is merit, Appointing Authority shall prepare a list of senior most candidate containing names as far as possible, three times of the number of vacancies subject to minimum of eight. It has also been contended that the Appointing Authority determined 26 vacancies for the recruitment year 2018-19 of Chief Engineer (Civil), Level-2, Department of Irrigation for promotion from amongst eligible Superintending Engineer (Civil), who are regularly appointed and have completed 25 years of service in the department and one year as Superintending Engineer (Civil).
25. Since there were total 26 vacancies of Chief Engineer (Civil), Level-2, therefore, as per Rules, 1986 atleast the eligibility list of 78 (26x3) eligible Superintending Engineers should be prepared. However, on 18.08.2017 (Annexure No.15 to the writ petition) a list of 102 eligible persons has been prepared. The names of the petitioners were found in the said list. Actually, this list dated 18.08.2017 was relating to the selection year 2017-18 wherein total 34 vacancies were identified, therefore, list of 102 eligible persons was declared. Vide subsequent list for the selection year 2018-19, which was sent before the Government on 23.07.2018 (Annexure No.16 to the writ petition), for the 26 vacancies the eligibility list of 74 persons were sent. In the said list, the names of the present petitioners are finding place. The names of Sri Prem Kishore Satsangi (Petitioner No.2) and Sri Satya Narain (Petitioner No.1) of Writ Petition No.13591 (S/S) of 2019 finds place at serial Nos.48 and 58 whereas the name of sole petitioner of Writ Petition No.13755 (S/S) of 2019, namely, Sri Arun Kumar finds place at serial No.50. The aforesaid list dated 23.07.2018 was modified by the subsequent list which was sent before the Government on 07.03.2019 (Annexure No.17 to the writ petition) for the selection year 2018-19 and the names of Sri Prem Kishore Satsangi and Sri Satya Narain find place at serial Nos.48 and 58, whereas the name of Sri Arun Kumar find place at serial No.50. By means of this list, only 59 persons were included in the eligibility list. However, the criteria was 1:3 and atleast names of 78 persons should be included. The opposite parties have not acted upon the aforesaid eligibility list and thereafter issued the impugned eligibility list dated 18.03.2019 of 44 persons (Annexure No.18 to the writ petition) and in the said list the names of the present petitioners do not find place. Not only the above, again the eligibility list dated 18.03.2019 was rectified and new eligibility list dated 10.05.2019 containing the names of only 41 eligible Superintending Engineers have been forwarded to the State Government and the said list has also been assailed in these writ petitions by way of filing amendment.
26. The submission of learned counsel for the petitioners is that when the earlier two eligibility list were forwarded by the department to the State Government containing the names of the present petitioners strictly as per sub-Rule (iii) of Rule 5 of the Rules, 1990 issuing the impugned eligibility list dated 18.03.2019 and 10.05.2019 is patently illegal, arbitrary, discriminatory and unwarranted.
27. However, Sri Ramesh Kumar Singh, learned Additional Advocate General has submitted with vehemence that at the time of promotion from the post of Executive Engineer (Civil) to the post of Superintending Engineer (Civil) the petitioners were not fulfilling the eligibility criteria of Service of about 6 years on the post of Executive Engineer, however, the State Government by invoking the provisions of the Relaxation (Amended) Rules, 2013, has provided relaxation to the petitioners in qualifying services with respect to the promotion on the post of Superintending Engineer (Civil), vide office memorandum dated 08.12.2016.
28 He has further contended that on perusal of the aforesaid provisions of the Rules, 1990, it is clear that mode of recruitment for the initial post i.e. the Executive Engineer of the cadre of Group-A services in the Irrigation Department is promotion only. It is submitted that for becoming the member of service, as defined in the Rules, 1990, it is provided that only those Assistant Engineers (Civil or Mechanical) become eligible to be qualified to enter into the service cadre of Group-A service, on the initial post of Executive Engineer, who has completed 7 years (earlier 10 years, before amendment) of service on the post of Assistant Engineer (Civil or Mechanical). In this manner, the feeding cadre of Group-A services is only the cadre of Assistant Engineers (Civil or Mechanical) belonging to the Group-B services.
29. Sri Ramesh Kumar Singh, learned Additional Advocate General has clarified his aforesaid submission submitting that a person possessing the qualification of Engineering gets recruited under Rules, 1993 and serves/ experienced as an Assistant Engineer for 7 years i.e. the necessary eligibility/ qualification in the Irrigation Department, becomes eligible for being promoted on the post of Executive Engineer which is a initial cadre post of Group-A services. After completing 15 years of service (required to be counted from the date of substantive appointment as Assistant Engineer) and six years on the post of Executive Engineer, he qualifies for being promoted on the post of Superintending Engineer. Further, after completing 25 years of service (required to be counted from the date of substantive appointment as Assistant Engineer) and one year of service as Superintending Engineer, the person qualifies for being promoted for the post of Chief Engineer, Level-2 (Civil or Mechanical).
30. Sri Ramesh Kumar Singh, learned Additional Advocate General has also submitted that the terms of service used in Group-A Service Rules is pertaining to the period of service rendered to become a member of cadre post of Group-A service i.e. 7 years of service as Assistant Engineer and thereafter the period of service rendered while occupying the cadre post of Group-A service.
31. It has been pointed out by Sri Mukund Tewari learned counsel for the petitioners that the sole petitioner-Sri Arun Kumar of Writ Petition No.13755 (S/S) of 2019 has retired from service during pendency of the writ petition. Sri Tewari, learned counsel for the petitioners has contended that since one Government Order/ Office Memo No.13/2/84-Ka-1/97 dated 23.08.1997 issued by the Government of U.P. categorically providing that if any employee has retired or died before getting his/ her admissible service benefits, the same shall be provided to him/ her even after death or retirement notionally, therefore, Sri Arun Kumar may be extended the benefit of that Government Order as he was legally entitled for the aforesaid benefit which has not been provided to him during his service period. Learned counsel for the State-respondents has not disputed the aforesaid Government Order dated 23.08.1997.
32. Having heard learned counsel for the parties and having perused the relevant material available on record, I am of the considered opinion that while preparing the eligibility list dated 18.03.2019 and 10.05.2019 of the Superintending Engineer (Civil) for promotion to the post of Chief Engineer (Civil), Level-2, the Competent Authority has not considered the prescription of law correctly as indicated under Rule 5 (iii) of the Rules, 1990 nor the eligibility list has been prepared strictly as per the Rules, 1986, which prescribes the mode of preparation of eligibility list, if the criteria is merit.
33. Rule 5 (iii) of the Rules, 1990 clearly prescribes to consider an eligible Superintending Engineer on the post of Chief Engineer (Civil), Level-2 through promotion, the Superintending Engineer must occupy the post of Superintending Engineer substantively and has completed 25 years service including atleast one year service as Superintending Engineer. This rule does not say that 25 years of service of an incumbent should be counted with effect from his initial appointment substantively, rather it only says 25 years service and he/ she should be appointed on substantive post of Superintending Engineer, therefore, the substantive appointment should be on the post of Superintending Engineer. There is no quarrel on the point that the petitioners were not substantively appointed as Superintending Engineer and they have not completed 25 years service including one year service as Superintending Engineer. The precise quarrel so raised by learned Additional Advocate General is that the petitioners of both the writ petitions have been regularized as Assistant Engineer in the year 1997, therefore, their length of service should be counted from the year 1997 and in that case they have not completed 25 years of service. However, there is no dispute that the petitioners were regular Junior Engineers and considering their regular service they have been promoted on the post of Assistant Engineer in the year 1991, however, on ad hoc basis and thereafter their continuous and uninterrupted services have been regularized in the year 1997. In such circumstances the ad hoc services of the petitioners on the post of Assistant Engineer may not be ignored and those shall be counted for the purposes of seniority and promotions.
34. The Constitution Bench of Hon'ble Supreme Court in re: Direct Recruit Class-II Engineering Officers' Association vs. State of Maharashtra and others reported in (1990) 2 SCC 715 has held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. It further held that if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. If the merit of the present case is tested in the light of the aforesaid observation of the Hon'ble Apex Court, the position which would be emerged is that the present petitioners have continued on the post of Assistant Engineer uninterruptedly till the regularisation of their services, therefore their ad hoc period on the post of Assistant Engineer shall also be counted and in that case their total length of service on the post of Assistant Engineer would be more than 25 years.
35. Further, it is not the case of the State-respondents that the petitioners had been appointed/ promoted on the post of Assistant Engineer on ad hoc basis in dehorse the rules or as a stop gap arrangement but the petitioners were regular Junior Engineers and were promoted on the post of Assistant Engineer on ad hoc basis strictly as per the rules and they have continued on the post of Assistant Engineer uninterruptedly till the regularisation of their services, therefore, the petitioners may not be discriminated in any manner whatsoever for the reason that they have regularised on the post of Assistant Engineer in the year 1997. The dictum of the Apex Court in re: Direct Recruit Class-II Engineering Officers' Association (supra) has been followed and considered by the Apex Court in catena of cases.
36. Keeping in view what has been said above, I consider that had the intent of Legislature been to restrict such appointee to be promoted on subsequent post, it would have been categorically and specifically indicated in Rule 5 of the Rules, 1990 that the incumbent must have completed 25 years substantive service but so far as the total service is concerned, only this much has been indicated that the incumbent must have completed 25 years service and so far as the substantive appointment is concerned, it has been indicated only the post of feeding cadre i.e. the Superintending Engineer.
37. Therefore, what the Legislatures have not indicated clearly, it may not be read otherwise in view of the law laid down by the Apex Court in re: Suresh Lohiya vs. State of Maharashtra & Anr. reported in (1996) 10 SCC 397. This is trite law that the Rules of interpretation require that construction, which carries on objectives of the Statute, protects interest of the party and keeps the remedy alive, should be preferred looking into the text and context of the Statute. It must be so as to further the ends of justice and not to frustrate the same. Construction given by the Court must promote the object of the Statute and serve the purpose, for which it had been enacted, and should not efface its very purpose. It is also settled principle of interpretation of law that any interpretation which leads to hardship and complication, should be avoided. In Administrator, Municipal Corporation, Bilaspur vs. Dattatrayadahankar & Anr, reported in AIR 1992 SC 1846 and Govt. of Andhra Pradesh & Ors. vs. P. Benku Reddy reported in (2002) 7 SCC 631, the Apex Court has held that "the mechanical approach to construction is altogether out of play with the modern positive approach. The modern positive, i.e., to effectuate the object and purpose of the Act."
38. The Hon'ble Supreme Court in S.P. Jain vs. Krishna Mohan Gupta & Ors. reported in AIR 1987 SC 222 has also held that law should take a pragmatic view of the matter and response to the purpose for which it was made and also take cognizance of the current capabilities and life-style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of meaning of the Act. The legislative futility is to be ruled-out so long as the legislative policy permits.
39. In the light of aforesaid settled proposition of law, the plain and simple meaning of Rule 5 (iii) of the Rules, 1990 would be if any Assistant Engineer has completed total 25 years of service has been promoted on the post of Executive Engineer and Superintending Engineer and has been substantively serving on the post of Superintending Engineer at least for last one year shall be treated as an eligible person to be promoted on the next higher post i.e. Chief Engineer, Level-2 and his/ her name shall be included in the eligibility list of Superintending Engineer. The present petitioners are fulfilling the aforesaid criteria, therefore, their names should be included in the said eligibility lists. Admittedly, their names were included in the earlier two eligibility list but by means of impugned eligibility lists they have been excluded by misinterpreting Rule 5 (iii) of the Rules, 1990, therefore, the said lists are non est in the eyes of law. Further, since those petitioners are liable to be included in the eligibility list of Superintending Engineer so their candidature for further promotion should be considered in the light of Circular dated 22.03.1984, as amended by the Government Order dated 20.11.2017.
40. In view of the above, the impugned eligibility list dated 18.03.2019 and 10.05.2019 are not sustainable in the eyes of law being arbitrary and discriminatory, therefore, both the eligibility list are hereby quashed.
41. A writ in the nature of mandamus is issued directing the opposite parties to prepare a fresh eligibility list of Superintending Engineers (Civil) including the petitioners, namely, Sri Satya Narain and Sri Prem Kishore Satsangi of Writ Petition No.13591 (S/S) of 2019 for promotion to the post of Chief Engineer (Civil), Level-2 in accordance with the Rule 8 (iii) of the Rules, 1990 and thereafter the candidature of the petitioners may be considered for promotion to the post of Chief Engineer (Civil), Level-2 in accordance with Rules, 1990 and also vide Circular dated 22.03.1984, as amended by Government Order dated 20.11.2017.
42. Since the petitioner-Sri Arun Kumar of Writ Petition No.13755 (S/S) of 2019 has already retired from service, therefore, he shall be provided all consequential benefits notionally in terms of Government Order bearing No.13/2/84-Ka-1/97 dated 23.08.1997.
43. In the result, both the writ petitions succeed and accordingly are allowed.
44. No order as to costs.
Order Date :- August 19, 2019 Suresh/ [Rajesh Singh Chauhan,J.]