Allahabad High Court
State Of U.P. Thru. Chief Secy., Govt. Of ... vs Vikash Kumar Singh & Ors. on 24 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1878
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 187 of 2020 Appellant :- State Of U.P. Thru. Chief Secy., Govt. Of U.P. Lucknow & Ors Respondent :- Vikash Kumar Singh & Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- Mukund Tewari Hon'ble J. Pankaj Jaiswal,J.
Hon'ble J. Karunesh Singh Pawar,J.
Delivered by Karunesh Singh Pawar, J.
C.M.A. No. 39966 of 2020
1. Heard Shri Manjive Shukla, learned Additional Chief Standing Counsel and Shri Mukund Tewari, learned counsel for respondents on the delay condonation application.
2. The present special appeal is barred by 177 days.
3. Shri MukundTewari, learned counsel for respondents has very fairly submitted that he has no objection if the delay in filing the appeal is condoned.
4. On due consideration, we find that the delay has been sufficiently explained and therefore, the application for condonation of delay is allowed.
Re:- Special Appeal
1. Heard Shri Manjive Shukla, learned Additional Chief Standing Counsel and Shri MukundTewari, learned counsel for respondents.
2. The present appeal has been filed by the appellant against the judgment and order dated 11.12.2019 passed in Writ Petition No. 14962 (S/S) of 2019.
3. The petitioner/respondent no. 1 to 6 were directly appointed as Assistant Engineer (Civil) Department of Irrigation and Water Resources on 08.10.1999 in consultation with the Uttar Pradesh Public Service Commission, Allahabad and they have placed at serial no. 2417,2420, 2421, 2424, 2432 and 2436 respectively in the eligibility list.
4. Thereafter the petitioners/respondent no. 1 to 6 on 24.05.2012 were regularly promoted as Executive Engineer (Civil) in the Department of Irrigation and Water Resources and subsequently in the year 2017 they were regularly promoted as Superintending Engineer (Civil) by granting relaxation in the qualifying service under the U.P. Government Servant Relaxation and Qualifying Service for Promotion Rules, 2006 (hereinafter referred to as Rules 2006).
5. Rule 5(III) of the Uttar Pradesh Services and Engineers (Irrigation Department) (Group-A) Services Rules 1990 (hereinafter referred to as the Rules 1990) reads 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;
That the above rule provides that promotion to the post of Chief Engineer (Civil) (Level-II) is to be made by promotion from amongst substantively appointed Superintendent Engineers who have completed 25 years of service including one year of service as Superintending Engineer.
Rule 8(II) of the Rules 1990 reads as under:-
(2) Recruitment to the post of Cheif Engineer-Level-II, Chief Engineer-Level-1 and the Engineer-in-Chief shall be made on the basis of merit through a Selection Committee comprising:-
(i) Chief Secretary to the Government........ Chairman.
(ii) Secretary to the Government in Personnel Department ................ Member.
(iii) Secretary to the Government in Irrigation Department ..... Member."
That the above rule provides that the promotion to the post of Chief Engineer Level-II shall be made on the basis of merit through a selection committee.
Rule 8 (III) of the Rules 1990 reads as under:-
"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."
According to the aforesaid rule, the appointing authority shall prepare an eligibility list in accordance with U.P. Promotion by Selection (on the posts outside the purview of Public Service Commission) Eligibility Rules, 1986 (hereinafter referred to as the 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 properly.
Rule 2 of the Rules 1986 provides that the rules shall have overriding effect notwithstanding anything contrary contained in any other rules or orders. The said rule 2 of the Rules 1986 reads as under:-
2.Overriding effect:- These rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders.
Rule 4 of the Rules 1986 provides that where the criteria for promotion is merit, the appointing authority shall prepare a list of senior most candidates containing as far as possible, three times the number of vacancies subject to a minimum of eight. Rule 4 of the Rules 1986 reads as under:-
"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"
6. In the year 2006, the Rules 2006 have come into effect and rule 4 of the Rules 2006 provides for relaxation in the qualifying service. The said rule 4 of the Rules 2006 reads as under:-
"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."
According to the aforesaid rule 4 of the Rules 2006 in case a post is to be 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 required number of eligible persons are not available in the field of eligibility, such prescribed minimum length of service may be suitably relaxed up to fifty percent by the government excluding the period of probation.
7. In the year 2013, U.P. Government Servant Relaxation in Qualifying Service for Promotion (First Amendment) Rules, 2013 have come into force which provides in rule-4 that in the special circumstances relaxation can be granted beyond fifty percent in case a justification is made out. The aforesaid rule 4 reads as under:-
"(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:
8. The government order dated 20.11.2017 (page no. 112-113) which has been issued in pursuant to the various judgments of the Supreme Court provides that in case where the criteria of promotion is merit, the appointing authority shall consider the cases of all candidates and select the most meritorious candidates after considering the comparative merit on the basis of their annual entries of last 10 years.
9. The number of vacancies has been determined as 26 for the post of Chief Engineer (Civil) and hence, as per the Rules 1996, a total of 78 Superintending Engineers (Civil) should have been eligible for being considered for promotion to the post of Chief Engineer for which the criteria of promotion is merit.
10. For recruitment year 2018-19 on 23.07.2018 an eligibility list of 74 Superintending Engineers (Civil) was prepared and in the list the names of the petitioners/respondent no. 1 to 6 was at serial no. 60, 63, 64, 67, 72 and 74 with a note appended at the bottom stating that the petitioners do not complete 25 years of service on the post of Assistant Engineer (Civil) and it would be necessary to grant relaxation in minimum qualifying service.
11. A revised eligibility list was again prepared on 07.03.2019 for the recruitment year 2018-19 of 59 Superintending Engineers (Civil) by the opposite parties excluding the names of the petitioners as they were not completing 25 years of service on the post of Assistant Engineer (Civil). Thereafter again on 18.03.2019 a revised eligibility list for recruitment year 2018-19 of 44 Superintending Engineers (Civil) was prepared by the opposite parties excluding the names of the petitioners and lastly on 10.05.2019 another revised eligibility list of 41 Superintending Engineers (Civil) was prepared excluding the names of the petitioners/respondent no. 1 to 6.
12. Aggrieved by the exclusion of their names from the eligibility list, the petitioners/respondent no. 1 to 6 have assailed 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 in the Department of Irrigation and Water Resources by filing the writ petition.
13. The learned single judge after hearing the parties found that eligibility lists dated 08.03.2019 and 10.05.2019 of Superintending Engineers (Civil) for promotion to the post of Chief Engineer (Civil) Level-II of the department are arbitrary and cannot be sustained and hence quashed both the eligibility lists and a further writ of mandamus was issued commanding the competent authority to prepare the eligibility list of Superintending Engineers (Civil) including the names of the petitioners/respondent no. 1 to 6 for promotion to the post of Chief Engineer (Civil)(Level-II) granting them relaxation in minimum length of service in accordance with the Rules 2006 as amended in the year 2013.
14. A further writ of mandamus was issued commanding the opposite parties to consider the case of the petitioners/respondent no. 1 to 6 for promotion to the post of Chief Engineer (Civil) Level-II in accordance with the Rules 1990 and office circular dated 22.03.1984 as amended by Government Order dated 20.11.2017.
15. Learned counsel for the appellants submits that granting relaxation in the required minimum length of service is an executive function of the State and the said relaxation is given by the State Government after considering each and every aspect as per the provisions of the Rules 2006.
16. It is next contended that learned Writ Court ought to have directed the State Government to consider the case of the petitioners/respondent no. 1 to 6 for grant of aforesaid relaxation which is an executive function rather issuing a writ of mandamus commanding the State Government to include the names of the petitioners/respondent no. 1 to 6 by granting them relaxation under the Rules 2006.
17. Learned counsel for the appellants further submits that it is a settled preposition of law that the writ court cannot take any decision which otherwise is to be taken by the executive authority under the provisions of statutory service rules.
18. It is next contended that where the criteria for promotion is merit, the eligibility list shall be prepared in the ratio of 1:3 as far as possible, subject to minimum of eight. The language of the rule is very clear that it is not necessary for all the time to prepare the eligibility list in the ratio of 1:3 as legislature has used words "as far as possible".
19. Learned writ court has taken a view that under rule 4 eligibility list has to be prepared in the ratio of 1:3 and no deviation is possible. He has further submitted that after perusing rule 4 of the Rules 1986 it is evident that intention of the legislature is very clear and discretion lies in the hands of appointing authority. He also submits that the language used in rule 4 of the Rules 2006 enabling provision for the State Government and a government servant cannot claim relaxation in the minimum length of service as a matter of right. It is the discretion of the State Government to use it or not. Therefore, the view taken by the learned single judge that in every case of promotion the State Government has a mandate under the Rules 1986 to prepare the eligibility list in the ratio of 1:3 whereas the legislature has used words "as far as possible" and hence, the view taken by the learned Single Judge is not sustainable in the eyes of law.
20. Lastly it has been submitted that the State Government is not bound to take recourse of rule 4 of the Rules 2006 in every case of promotion.
21. Learned counsel for the appellants has relied on the judgment in support of his arguments reported in "(1992) Supl1 SCC 272 Keshav Chandra Joshi and others Vs. Union of India and others". He further has relied on the judgment reported in "2007 SCC page no. 561 Suraj Prakash Gupta and others Vs. State of Jammu and Kashmir and others".
22. Per contra learned counsel for the petitioners/respondent no. 1 to 6 has made following submissions:-
That the criteria for promotion for the post of Chief Engineer (Civil) Level-II is merit on the basis of evaluation of annual entries for the post of last 10 years, hence, eligibility list should contain the candidates thrice the number of vacancies as provided in the Rules 1986.
That the qualifying service provided in rule-5(III) of the Rules 1990 is not essential requirement for promotion to the post of Chief Engineer (Civil) Level-II and it ought to be released under the Rules 2006 as it has overriding effect over the Rules 1990 and only the annual entries of past ten years are to be looked into for the purposes of promotion.
That the Rules 1986 is mandatory in nature and has overriding effect over the Rules 1990 and therefore, the eligibility list should contain the names three times the number of vacancies as the criteria for promotion is merit because the most meritorious candidates is to be selected after evaluating their comparative merit list.
That the expression used in the Rules 1986 "as far as possible" means to the largest possible extent or to the maximum limit which can put into effect by granting relaxation in qualifying rules under the Rules 2006 while considering for promotion as the criteria is merit.
That the Rules 1986 provides that the eligibility list should contain a minimum of eight candidates which means that where the criteria for selection is merit, the eligibility list cannot have less than eight candidates even if the selection is for a single post and it cannot mean that for 26 posts of Chief Engineers an eligibility list for eight candidates can be prepared.
That the Rules 2006 has been framed with a view to provide relaxation in qualifying service so as to select the most meritorious candidates from a large number of candidates.
That the purpose of enacting the Rules 2006 would be defeated in case suitable candidates are not included in the eligibility list by providing relaxation in qualifying service as provided under the Rules 1986 for being considered for promotion where the criteria for promotion is merit.
That the State Government cannot have any grievance in case the selection of the most meritorious candidates is made from the large number of candidates, especially in view of the fact that the Rules 2006 has been enacted to grant relaxation in qualifying service in case the adequate number of candidates are not available for being considered for promotion.
It is submitted that it is not the discretion of the State Government to invoke the Rules 2006 as and when it pleases because the rule is mandatory and has overriding effect over the Rules 1990.
That the State Government cannot act arbitrarily by denying to invoke the Rules 2006 because the respondents have been given the benefit of relaxation in qualifying in service on the post of executive engineer when they were granted promotion on the post of Superintending Engineer in the Department of Irrigation.
Lastly it is submitted that names of the respondents were initially included in the eligibility list dated 23.02.2018 but were excluded in the subsequent eligibility lists dated 07.03.2014, 18.03.2019 and 10.05.2019 in violation of the Rules 1990, the Rules 1986, and the G.O. dated 20.11.2017, therefore, the eligibility lists have been rightly set aside by the learned Single Judge and direction to prepare the fresh eligibility list containing the names of the petitioner/respondent no. 1 to 6 is just, valid and proper.
He has relied on the judgment passed by the Apex Court reported in "2015 (1) SCC 642 Rajendra Kumar Aggarwal Vs. State of U.P. and others"
23. Having heard learned counsel for the parties and after perusal of the record, we have noticed that the learned writ court while passing the judgment has given elaborate findings after going through each and every aspect of the relevant rules. The relevant paragraph of the order dated 11.12.2019 reads as under:-
"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."
24. After going through the judgment of the learned Single Judge and the arguments of the parties, we find no illegality in the judgment impugned. There are two conditions for making promotion on the post of Chief Engineer (Civil) (Level-II) from the post of Superintendent Engineer under Rule 5 (III) of the 1990 Rules. Firstly he should be substantively appointed Superintending Engineer and have completed one year of service as Superintending Engineer and secondly he should have completed 25 years of service as Assistant Engineer. The petitioners/respondent no. 1 to 6 though fulfils the first condition, however they lack 25 years of service as Assistant Engineers. Rule 8(II) of 1990 Rules and government order dated 20.11.2017 provides that the criteria for promotion to the post of Chief Engineer (Civil) Level-II is merit after evaluating the annual entries for the last 10 years and the eligibility list has to contain thrice the number of candidates than the number of vacancies as provided under the Rules 1986. The qualifying service provided under Rule 5(III) of the Rules 1990 can be relaxed for promotion to the post of Chief Engineer (Civil) Level-II. The Rules 2006 has an overriding effect over the Rules 1990 and has an overriding effect over the Rules 1986, in order to select the most meritorious candidate after evaluating their comparative merit on the basis of annual entries for the last 10 years for the purpose of promotion to the post of Chief Engineer (Civil). The whole purpose of enacting the Rules 2006 is to provide relaxation in qualifying in service in order to select the most meritorious candidates amongst the larger number of candidates. The entire purpose of the Rules 2006 shall be defeated in case the suitable candidates are not included in the eligibility list by relaxing the qualifying service.
25. The judgment relied on by the State appellants are distinguishable on facts. In "Suraj Pratap Gupta and others Vs. State of Jammu Kashmir and others" the Government was carried away by sympathy for the promotees by not making direct recruitment after 1984 by restricting direct recruiters to 10 percent rather than permitting 20 percent and by deliberately promoting Chief Engineers to other 10 percent quota reserved for the direct recruiters and thus, the Government has acted in a biased manner and the consequent regularisation of the promotees held to be rightly quashed by the high court as they have illegally occupied the direct recruitment quota.
26. In the case of Keshav Chandra Joshi and others Vs. Union of India and others (supra) the apex court held that the appointments were found to have been made dehors the rules and by not appointed by the Governor according to rules and they do not become the members of service in substantive capacity and continuous length adhoc services and thus it was held that continuous length of adhoc service from the date of initial appointment cannot be counted towards seniority.
27. We are in agreement of the argument of learned counsel for petitioners/respondents 1 to 6 that the State Government cannot have any grievance in case selection of the most meritorious candidates is made from the large number of candidates especially in view of the fact that the Rules 2006 has been enacted to grant of relaxation in qualifying service in case the adequate number of candidates are not available for being considered for promotion. The state Government cannot act arbitrarily by denying to invoke the Rules 2006 and it is not the discretion of the State Government to invoke the Rules 2006 as and when it pleases, the rule is mandatory and has an overriding effect over the Rules 1990.
28. The Apex Court in the case of Rajendra Kumar Aggarwal Vs. State of U.P. and others (supra) has held as under:-
"23. So far as the present case is concerned we do not find any material to show that the State Government or the Parishad resorted to exercise of power under Regulation 20 for some unauthorized or oblique purpose. The allegation that it was only to benefit Rajendra Kumar Agrawal is ex facie incorrect because relaxation was beneficial for three officers who all were senior to Narsingh Prasad. There is no material to support the allegation that Rajendra Kumar Agrawal was responsible for the decision by the State Government or the Parishad on account of any political or other influence over any person. To us, the exercise of power of relaxation appears to be in the interest of Parishad because the post of Chief Engineer, as held by this Court in earlier proceeding, is a single post of considerable importance. The enlargement of zone of consideration with addition of relatively senior persons would only benefit the public cause by enabling selection of most meritorious person from a larger group of eligible persons. Hence in the facts of the case, we are of the considered view that the High Court erred in inferring that the relaxation was for some dubious reasons or to benefit Rajendra Kumar Agrawal."
29. In the above case the Apex Court has held that enlargement of zone of consideration with addition of relatively senior persons would only benefit the public cause by enabling selection of most meritorious person from a larger group of eligible persons. In this case also the zone of consideration has been enlarged by adding six more persons so as to enable the State to select the most meritorious persons for the promotional post of Chief Engineer and thus, we are of the view that the State Government cannot be aggrieved as addition of some more meritorious persons in the select list would only benefit the public interest as held by the Apex Court in the aforesaid matter.
30. In view of the aforesaid discussions, we find that there is no illegality in the judgment impugned and also find that special appeal lacks merit and is accordingly dismissed.
No order as to cost.
(Karunesh Singh Pawar,J.) (Pankaj Jaiswal,J.)
Order dated: 24.07.2020
R.C.