Allahabad High Court
Vikash Kumar Singh And 5 Ors. vs State Of U.P. Thru Chief Secy. Lucknow ... on 11 December, 2019
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Judgment Reserved on 19.11.2019 Judgment Reserved on 11.12.2019 Court No. - 23 Case :- SERVICE SINGLE No. - 14962 of 2019 Petitioner :- Vikash Kumar Singh And 5 Ors. Respondent :- State Of U.P. Thru Chief Secy. Lucknow And Ors. Counsel for Petitioner :- Mukund Tewari Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Mukund Tewari, learned counsel for the petitioners and Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-respondents.
By means of this petition the petitioners have assailed the eligibility list dated 18.3.2019 and 10.5.2019 of the Superintending Engineer (Civil) for promotion to the post of Chief Engineer (Civil), Level-II in the Department of Irrigation and Water Resources on the ground that the promotion to the post of Chief Engineer (Civil), Level-II should be held in accordance with the U.P. Service of Engineers (Irrigation Department) (Group-A) Service Rules, 1990 (hereinafter referred to as the Rules, 1990) read with U.P. Selection for Promotion (on the posts outside the purview of Public Service Commission) Eligibility Rules, 1986 (hereinafter referred to as Rules, 1986) and Office Circular dated 22.3.1984 and G.O. dated 20.11.2017 but the said eligibility list has been prepared ignoring the aforesaid provisions of law and statutory prescription.
(I). Facts of the case :
The brief facts of this case are that the petitioners were directly appointed as Assistant Engineer (Civil) in the Department of Irrigation and Water Resources in consultation with U.P. Public Service Commission, Allahabad on 8.10.1999. Thereafter on 24.5.2012 they were regularly promoted as Executive Engineer. In the year 2017 the petitioners were regularly promoted as Superintending Engineers and they have been currently discharging the duties of Superintending Engineers at different places.
Petitioners no. 1 to 6 have been placed at serial no. 2417, 2420, 2421, 2424, 2432 and 2436 respectively in the seniority list of Assistant Engineer (Civil). Rule 8(2) of the 1990 Rules provides for promotion to the post of Chief Engineer (Civil), Level-II through a selection committee from amongst eligible Superintending Engineers (Civil) on the basis of merit.
The eligibility list has to be prepared in accordance with Rules, 1986 containing the names which shall be three times the number of vacancies. Annual Confidential Report and other reports shall be placed before selection committee which will select the most meritorious candidates for promotion after considering the comparative merits of all the candidates.
The office circular dated 23.2.1984 has been issued by the State Government laying out the guidelines for selection / promotion to the posts within outside the purview of Public Service Commission. It provides that where the criteria for promotion is merit, the most meritorious candidates from the eligibility list should be selected after comparing the comparative list of all the eligible candidates.
The State Government has framed U.P. Government Servants Relaxation in Qualifying Service in Promotion Rules, 2006 (hereinafter referred to as the Rules, 2006) which prescribes that in case required number of candidates are not available, prescribed minimum length of service may be relaxed up to 50% by the administrative department in consultation with personnel department excluding the period of probation.
The State Government has issued an amendment in the Rules, 2006 providing that in special circumstances relaxation in minimum length of service can be provided beyond 50%.
On 20.11.2017 the State Government issued Government Order amending the Office Order dated 22.3.1984 laying down that where the criteria for promotion is merit, the most meritorious officers have to be selected after evaluating the comparative merit of all eligible candidates on the basis of their annual confidential report. It provides that the select list shall be prepared on the basis of benchmark fixed by the departmental promotion committee. Notedly, the appointing authority determined 26 vacancies of Chief Engineer (Civil), Level-II for the Recruitment year 2018-19, therefore, the eligibility list was to be prepared in terms of Rule 4 of 1986, Rules containing the names of senior most Superintendent Engineer (Civil) as far as possible three times the number of vacancies.
Since the number of vacancies has been determined as 26 vacancies of Chief Engineer, therefore, as per Rules, 1986 total 78 Superintendent Engineers (Civil) (three times to 26) should be eligible for being considered for promotion to the post of Chief Engineer, for which the criteria for promotion is merit.
However, on 23.7.2018 an eligibility list of Recruitment Year -2018-19 of 74 Superintending Engineers (Civil) was prepared wherein the name of petitioners no. 1 to 6 finds place at serial no. 60, 63, 64, 67, 72 and 74. A note has been appended at the bottom of list stating that the petitioners do not complete 25 years of service on the post of Assistant Engineer (Civil), therefore, it would be necessary to grant relaxation in minimum qualifying service.
Again on 7.3.2019 a revised eligibility list for the Recruitment Year - 2018-19 of 59 Superintending Engineers (civil) was prepared by the opposite parties wherein the names of the petitioners have been excluded only on the ground that they were not completing 25 years of service on the post of Assistant Engineers (Civil), however, the petitioners could have been given relaxation as per Relaxation Rules, 2006 which has been amended in the year 2013 in the light of appended note of eligibility list dated 23.7.2018.
Again on 18.3.2019 another revised eligibility list for the Recruitment Year- 2018-19 of 44 Superintending Engineer (Civil) was prepared by the opposite parties excluding the names of the petitioners. Lastly on 10.5.2019 another revised eligibility list of 41 Superintending Engineer (Civil) was prepared excluding the names of the petitioners.
(II). Submission of the Respondents :
Dr. Udai Veer Singh, learned Additional Chief Standing Counsel has vehemently submitted that in the Recruitment Year-2018-19, in respect of promotion to the post of Chief Engineer (Civil), Level II report was sought from the department including the details of the post and eligibility list. The department accordingly intimated that there are total 26 vacancies determined for the promotional quota on the post of Chief Engineer and the eligibility list is to be prepared as per Rule 5 (iii) of the Rules, 1990 and eligibility list shall be prepared as per Rule 4 of the Rules, 1986 applying the ratio 1:3, therefore, the names of 74 persons were prepared and in the said list i.e. dated 23.7.2018 the name of the present petitioners find place. However, the State Government after going through the provisions of Rules, 1990 directed that if all conditions of Rule 5 (iii) of Rules, 1990 are not fulfilled, the eligibility list may not be issued, therefore, the eligibility list dated 7.3.2019 has been issued wherein only 59 persons have been included ignoring the names of the present petitioners. Thereafter, the revised eligibility list was issued on 18.3.2019 of 44 Superintending Engineers (Civil) and lastly on 10.5.2019 the list of 41 Superintending Engineers has been issued.
Dr. Udai Veer Singh has further submitted that the decision of the State Government may be said to be a wise decision whereby the adherence of Rule 5(iii) has been provided inasmuch as undisputedly the promotion can be made in the light of Rule 5(iii) of the Rules, 1990. He has further submitted that it is the prerogative of the State Government to grant relaxation or not to grant relaxation inasmuch as there may not be any compulsion on the part of the State Government to grant relaxation in respect of length of service. Further, so far as the applicability of the Rule 4 of Rules, 1986 is concerned, the said rule itself provides that the eligibility list shall be prepared three time the number of vacancies as far as possible, therefore, it was not possible in the given circumstances to prepare the eligibility list as per 1:3 ratio, therefore, the eligibility list dated 10.5.2019 is absolutely valid eligibility list and promotion can be made from that list.
Legal Provisions :
Rule 5 (iii) and 8 (3) of the Rules, 1990 is being reproduced as under :
"Rule 5 (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;
"Rule 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."
As per aforesaid rule 5(iii) for being promoted on the post of Chief Engineer (Civil), Level-II the incumbent should be substantially appointed on the post of Superintending Engineer and should have completed at least one year of service on the said post and should have also completed 25 years of total service including the service rendered on the post of Superintending Engineer. In the present case the petitioners are substantially appointed on the post of Superintending Engineer (Civil) and have completed more than one year of service on the said post. However, they have not completed total 25 years of service as Assistant Engineers. There is a specific statutory mechanism provided under Rule 4 of the Rules 1986 for preparation of eligibility list. For the brevity the relevant portion applicable herein of Rule 4 of the Rules, 1986 is being reproduced herein below:
"Rule 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 ...."
Therefore, the appointing authority has to prepare the list of eligible persons three times the number of vacancies and undisputedly the 26 vacancies have been determined for promotion on the post of Chief Engineer (Civil), Level-II, therefore, at least 78 Superintending Engineers should be included in the eligibility list as per Rule 4 of the Rules, 1986.
Notedly, there is a specific mechanism provided to meet out the situation where the eligibility list cannot be prepared in terms of Rule 4 of the Rules, 1986 for the reason that sufficient eligible candidates are not available who have completed requisite length of service, then the aid of Rule 4 of Relaxation Rules, 2006 may be taken. For the brevity Rule 4 of the Relaxation Rules, 2006 is being reproduced herein below:
"Rule 4. Relaxation in qualifying service.- In case a post is filled by promotion and for such promotion a certain minimum length of service is prescribed on the lower post or posts, as the case may be, and the re3quired number of eligible persons are not available in the field of eligibility, such prescribed minimum length of service may be suitably related up to fifty percent by the government in the Administrative Department in consultation with Personnel Department of the Government, excluding the period of probation as lid down for the said lower post or posts, as the case may be."
The aforesaid rule has been amended in the year 2013, therefore, the amended portion of Rule 4 is being reproduced herein below:
"(1) if in special circumstances, the Administrative Department finds out the justification of granting more than fifty percent relaxation in the minimum length of service prescribed on the lower post or posts as the case may be, for promotion, then in such situation a proper proposal shall be submitted by the Administrative Department through the Personnel Department before the Committee constituted as follows:
Therefore, in view of the Relaxation Rules, 2006 as amended in the year 2013 the competent authority may relax the qualifying service of the petitioner so as to prepare the eligibility list strictly in terms of Rule 4 of the Rules, 1986. Even in the special circumstances relaxation in minimum length of service can be provided beyond 50%.
Heard learned counsel for the parties and perused the relevant material available on record.
It would be apt to note here that the same eligibility list dated 18.3.2019 and 10.5.2019 of the same department have been assailed in two writ petitions bearing Service Single No. 13591/2019 (Satya Narain and another vs. State of U.P. and others) and Service Single No. 13755/2019 (Arun Kumar and others vs. State of U.P. and others and both the writ petitions were allowed by this Court vide judgment and order dated 19.8.2019 quashing both the eligibility list directing the opposite parties to prepare the fresh eligibility list of Superintending Engineers (Civil) strictly in accordance with Rule 8(3) of the Rules, 1990 and also as per circular dated 22.3.1984 as amended by the Government Order dated 20.11.2017. Further, one more identical issue has been decided by this Court vide judgment and order dated 10.5.2019 in Service Single No. 7212/2019 (Naveen Kapoor vs. State of U.P. & others) connected with Service Single No. 10835/2019 (Om Prakash Pathak and others vs. State of U.P. and others). In the said matter, in re: Naveen Kapoor (supra) the similar direction was issued by this Court directing the opposite parties to make fresh selection on the post of Chief engineer (Level II), Mechanical in the Department of Irrigation and Water Resources strictly on the basis of merit and in accordance with Rules, 1990, 1994 and the Government Order dated 20.11.2017. It has been informed at the bar that both the aforesaid orders have been yet not been set aside by the superior Court, to be more precise in Special Appeal or in the Special Leave Petition by the Hon'ble Apex Court.
The question for consideration before this Court is that as to whether while preparing the eligibility list as per Rule 8 (3) of the Rules, 1990 for making promotion as per Rule 5 (iii) of Rule 1990 the modality so prescribed under Rule 4 of the Rules, 1986 may be ignored on the pretext of length of service when Rule 4 of Rules, 2006 as amended in 2013 categorically mandates that length of service may be relaxed up to 50% and even beyond 50% by the State Government if the required number of candidates are not available.
Admittedly, there are two conditions for making promotion on the post of Chief Engineer from the post of Superintending Engineer under Rule 5(iii) of 1990 Rules. First, the candidate must be substantively appointed Superintending Engineer and have completed one year service as Superintending Engineer and second, those have completed 25 years service as Assistant Engineer.
The petitioners have fulfilled first condition but are not qualifying second condition i.e. length of service of 25 years as Assistant Engineer.
Rule 8 (3) of the Rules, 1990 categorically provides that eligibility list shall be prepared as per Rules 1986. Rule 4 of 1986 Rules provides that the eligibility list shall be prepared three times the number of vacancies as far as possible, meaning thereby the department must have option to select the best Superintending Engineer as the criteria for said promotion is merit, therefore, unless the department gets ample option applying criteria of 1:3 in preparing the eligibility list, the best meritorious candidates may not be selected. Therefore, in the present case earlier the select list of 74 was prepared which was near to 78 for the total number of vacancy is 26 and applying the ratio of 1:3 at least 78 candidates should be there in the select list. Thereafter various revised select lists have been prepared decreasing the number of candidates in the select list from 59 to 44 to 41. Now as per the final revised gradation list 26 Chief Engineers, Level II are to be promoted amongst the select list of 41 persons and if in the meantime some Superintendent Engineers retire or relinquishes the job for any reason, the select list would be narrowed and in that case the proper selection on the basis of merit strictly as per the wish of the legislators may not be achieved. Admittedly, to meet out such situation Rules, 2006 have come into being providing relaxation in qualifying service which has been amended in the year 2013 and the admitted legal position is that the minimum length of service may be relaxed beyond 50% as per amended Rules, 2013.
Undisputedly, the State Government invokes such provision of relaxation to meet out these peculiar circumstances. Even in the case of the petitioners when they were promoted on the post of Superintending Engineer they were given relaxation in length of service rendered as Assistant Engineer.
As discussed above the State Government issued a Government Order dated 20.11.2017 amending its earlier office order / circular dated 22.3.1984 laying down that where the criteria for promotion is merit the most meritorious officers have to be selected after evaluating the comparative merit of all the legible candidates on the basis of their Annual Confidential Report. This government order further provides that the select list shall be prepared on the basis of benchmark so fixed by the Departmental Promotion Committee.
Therefore, the combined reading of Rule 8(3) of the Rules, 1990, Rule 4 of the Rules, 1986 and Rule 4 of Relaxation Rules, 2006 along with the Government Order dated 20.11.2017 clearly reveal that for making promotion on the post wherein the criteria is merit the select list shall be prepared applying 1:3 ratio as far as possible and if the suitable candidates are not available in appropriate numbers, the minimum length of service of the candidates in the feeding cadre may be relaxed up to 50% or beyond 50%. In any case the very object to promote the most meritorious persons in terms of Government Order dated 20.11.2017 should be fulfilled and for the technical reasons the condition of Rule 5(iii) may not be imposed in strict sense. There is no doubt that while making promotion on a post wherein the criteria is merit, the meritorious persons should be promoted in the interest of the department and of the State Government. The technicalities should not defeat the purpose of law.
In view of the above, since Rule 4 of Rules 1986 provides that the number of candidates in the eligibility list shall be three times the number of vacancies as far as possible and the term 'as far as possible' means that the efforts should go to the greatest extent, degree or amount that is attainable. Therefore, when there is statutory prescription under Rule 4 of the Rules, 2006 regarding granting relaxation that should be resorted to so as to promote the best candidates on the post where the criteria is merit. As per my opinion the technicalities may not frustrate the purpose of law, the law must be applied as per wish of the legislatures. It may not be the wish of law that less meritorious candidates be promoted on the posts where the criteria is merit for the reason that eligibility list has been prepared consisting less number of candidates without taking resort of Relaxation Rules, 2006 ( as amended in 2013).
Accordingly, I am of the considered opinion that the eligibility list dated 8.3.2019 and 10.5.2019 of Superintending Engineer (Civil) for promotion to the post of Chief Engineer (Civil) Level II of the department are not sustainable in the eyes of law being illegal and arbitrary, therefore, both the eligibility lists are hereby quashed.
A writ in the nature of mandamus is issued commanding the competent authority to prepare the eligibility list of Superintending Engineer (Civil) including the names of the petitioners for promotion to the post of Chief Engineer (Civil) (Level II) granting them relaxation in minimum length of service in accordance with Rules, 2006 as amended in the year 2013.
A writ in the nature of mandamus is also issued commanding the opposite parties to consider the case of the petitioner for promotion to the post of Chief Engineer (Civil) Level II in accordance with 1990 Rules, office circular dated 22.3.1984 as amended by Government Order dated 20.11.2017.
In the result the writ petition succeeds and is accordingly allowed.
No order as to costs.
Order Date :- 11.12.2019 Om [Rajesh Singh Chauhan, J.]