RAJENDRA KUMAR AGRAWALversusSTATE OF U.P. & ORS.

                   [2014] 12 S.C.R. 87


              RAJENDRA 'KUMAR AGRAWAL                        A
                             v.
                  STATE OF U.P. & ORS.
          (Civil Appeal Nos. 9091-9092 of 2014)
                  SEPTEMBER 23, 2014                        B
    [FAKKIR MOHAMED IBRAHIM KALIFULLA AND
             SHIVA KIRTI SINGH, JJ.]

    SeNice Law:
                                                            c
     U.P. Avas Evam Vikas Parishad (Appointment and
Conditions of SeNice of Chief Engineer) Regulations, 1990
- Selection - Vacant post of Chief Engineer - Selection
process for regular promotion from the post of Superintendent
Engineer - Power to relax the qualification as to minimum D
length of seNice under Reg. 20 - Permissibility of - Held:
On facts, the power of relaxation under the Regulations was
always available and has been exercised in a manner which
does not call for any interference - Order of High Court that
it amounts to retrospective amendment of rules of eligibility E
after the selection process has begun and that it was for
dubious reasons only to accommodate the appellant cannot
be accepted - Direction to the Parishad and the State
Government to expedite the process of selection - U.P.
Eligibility List Rules 1986 - r. 4.                           F.
    Disposing of the appeals, the Court

      HELD: 1.1. After the judgment of this Court dated
27.4.12 in the case of U.P. Power Corporation Ltd. v.
Rajesh Kumar & Ors. there was no impediment in the G               ~


way of the Parishad in proceeding with regular selection
                                                                   ~
for filling up the vacant post of Chief Engineer in a regular
manner. This Court had directed for making officiating
arrangement by selecting a suitable Superintending
                            87                               H
    88      SUPREME COURT REPORTS            (2014) 12 S.C.R.

A   Engineer to hold additional charge of the post of Chief
    Engineer only on account of order of status quo qua the
    process of regular promotion in pending civil appeals.
    The Parishad committed an act of impropriety in not
    bringing the subsequent vacation of status quo order on
B   account of disposal of pending civil appeals on 27.4.2012
    and in not seeking formal permission of this Court to fill
    up the post of Chief Engineer on regular basis. However,
    now it would not be proper to direct the Parishad to fill
    up the vacancy only on officiating basis. [Para 8) [96-D-
C   H; 97-A]

          1.2. Rule 4 of the U.P. Eligibility List Rules 1986
    shows that the power of relaxation available to the
    concerned authority under different service rules for
    filling a post by promotion ha.s been sought to be
D   regulated with a condition that prescribed minimum
    length of service may be suitably relaxed up to the
    prescribed extent if the required number of eligible
    persons are not available in the field of eligibility. The
    Parishad acted as per letter of the State Government and
E   granted relaxation to the extent permissible although this
    exercise could result in enlargi6g the zone of
    consideration only to six candidates.[Para 19) [104-D-E;
    105-8-C]                      •

F      1.3. The process for selection of suitable candidate
  for regular promotion to the post of Chief Engineer could
  not be initiated due to pendency of civil appeals in which
  order of status quo was operating qua regular promotion.
  For that very reason even by order dated 27.3.2012 this
G Court directed to undertake elaborate process of
  selection but only for making officiating arrangement by
  conferring additional charge for the post in question on
  the selected candidate. It was only after said impediment
  got removed on account of judgment in the pending civiL,
  appeals on 27.4.2012 that the concerned authorities got
H liberty to initiate the selection process for regular
    RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                89


   promotion. Thus, the High Court erred in holding that the     A
   selection process for regular promotion to the post of
   Chief Engineer had already commenced. The
 . Government was yet to constitute a proper Committee
   and the list of eligible candidates was also not finalized
   till the issue of relaxation was taken up as per directions   B
   of the State Government. The High Court mistook the
   process for making officiating arrangement as the
   process for selection for filling up the post on regular
   basis. [Para 20] [105-F-H; 106-A, E-G]

         1.4. The pleadings in the writ petition show that no
                                                                 c
   ·factual malafide was alleged against any person in
    authority nor such authority was impleaded by name. In
'>
    absence   of impleadment of any member of the parishiid
    or any of the officers of the State Government by name
    and merely on vague or bald assertions no case of            D
    malafide could be made out so as to invalidate the
    decisions taken by the parishad for exercise of power of
    relaxation. [Para 21] [107-A-C] ·

       1.5. The exercise of power of relaxation appears to       E
  be in the interest of Parishad because the post of Chief
  Engineer, 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 enabHng selection of most meritorious person          F
  from a larger group of eligible persons. Hence, the High
  Court erred in inferring that the relaxation was for some
  dubious reasons or to benefit the appellant. The judgment
  and order of the High Court are set aside by holding that
  the power of relaxation under the Regulations was always       G
  available and has been exercised in a manner which
  does not call for any interference. The Parishad and the
  State Government is directed to expedite the process of
  selection of the most suitable candidate out of the eligible
                                                                 H
    90       SUPREME COURT REPORTS            [2014] 12 S.C.R.


A   candidates and fill up the vacant post of Chief Engineer
    in the Parishad. [Para 23, 25] [108-C-E, G-H; 109-A]

         M. Nagaraj v. Union of India 2006 (7) Suppl. SCR 336
    : (2006) 8 SCC 212; J.C. Yadav & Ors. v. State of Haryana
B   & Ors.1990 ( 2) SCR 470: (1990) 2 SCC 189; Sandeep
    Kumar Sharma v. State of Punjab & Ors.1997 ( 2) SCR
         =
    405 (1997) 10 SCC 298; Ashok Kumar Uppal & Ors. v.
    State of J&K & Ors. 1998 (1) SCR 164: (1998) 4 SCC 179;
    State of Gujarat & Ors. v. Arvindkumar T. Tiwari & Anr. 2012
    (7) SCR 1072: (2012) 9 SCC 545; Y. V. Rangaiah & Ors. etc.
C   v. J. Sreenivasa Rao & Ors. etc. (1983) 3 SCC 284; B.L.
    Gupta & Anr. v. M.C.D. (1998) 9 SCC 223; Mohd. Raisu/
    Islam & Ors. v. Gokul Mohan Hazarika & Ors. 2010 (7)
     SCR 732: (2010)-7 SCC 560; State of Orissa & Anr. v.
    Mamata Mohanty 2011 (2) SCR 704 : (2011) 3 SCC 436;
D   State of Bihar & Anr. v. P.P. Sharma, /AS & Anr.1991 (2)
     SCR 1: 1992 Supp.(1) SCC 222; M. V. Thimmaiah & Ors.
    v. U.P. Public Service Commission & Ors. 2007 (13)
     SCR 624":(2008) 2 SCC 119; Jasbir Singh Chhabra & Ors.
    v. State of Punjab & Ors. (2010) 4 SCC 192; R.S. Garg v.
E   State of U.P. & Ors. 2006 (4) Suppl. SCR 120 : (2006) 6
    sec 430 - referred to.
                        Case Law Reference:
         2006 (7) Suppl. SCR 336 Referred to          Para 5
F
         1990 (2) SCR 470           Referred to       Para 11
         1997 (2) SCR 405           Referred to       Para 11
         1998 (1) SCR 164           Referred to       Para 11
G        2012 (7) SCR 1072          Referred to       Para 11
         (1983) 3 sec 284           Referred to       Para 14
         (1998) 9 sec 223           Referred to       Para 14

H        2010 (7) SCR 732            Referred to      Para 14
             '
  RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                    91

     2011 (2) SCR 704               Referred to       Para 14      A
     1991 (2) SCR 1                 Referred to       Para 21
     2007 (13) SCR 624              Referred to       Para 21
     (201 o) 4 sec 192              Referred to       Para 21
                                                                   B
     2006 (4) Suppl. SCR 120 Referred to              Para 22
    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
9091-9092 of 2014.

     From the Judgment & Order dated 08.10.2012 of the High        C
Court of Judicature at Allahabad, Lucknow Bench in Writ
Petition No. 1183 (S/B) and 1264 (S/B) of 2012.

                             WITH
                                                                   D
C.A. No. 9093 of 2014

    S.B. Upadhyay, Kailash Vasdev, lrshad Ahmad, AAG,
Nikhil Majithia, Subhasish Bhowmick, Rameshwar Prasad
Goyal, Praveen Chauhan, Yash Prakash, Gaurav Agarwal,
Kaustav Pathak, Abhisth Kumar, Dinesh Kumar Garg,                  E
Dhananjay Garg, Vishwajit Singh, Abhindra Maheshwari,
Umrao Singh Rawat for the appearing parties.

     The Judgment of the Court was delivered by

    SHIVA KIRTI SINGH, J. 1. Leave granted.                        F

      2. These appeals arise out of a common judgment of
Division Bench of High Court, Allahabad, Lucknow Bench
dated 08.10.2012, hence they have been heard together and
will be governed by this common judgment.                          G
     3. The appellants as well as the private respondents are
Superintending Engineers in the service of U.P. Avas Evam
Vikas Parishad (for brevity, 'the Parishad'). The appellants are
arrayed amongst respondents in the appeal filed by the others      H
    92       SUPREME COURT REPORTS               [2014] 12 S.C.R.


A   whereas one Anil Kumar Jain, another Superintending
    Engineer whose Writ Petition bearing No.1276(SB) of 2012
    was also allowed by the common judgment under appeal has
    also been arrayed as a respondent on account of his
    application for impleadment being allowed by this Court.
B
          4. The appellants as well as the private contesting
    respondents are aspirants for the single post of Chief Engineer
     in the Parishad which fell vacant in January 2011. Thereafter,
     although Narsingh Prasad was junior to many others, he was
C    handed over officiating charge of the post of Chief Engineer
     on 30.9.2011. Anil Kumar Jain moved the High Court and a
    ,Division Bench quashed the order dated 30.9.2011 and
     directed for regular promotion. Narsingh Prasad preferred Civil
     Appeal No.3153 of 2012 which was allowed to a limited extent
     on March 27, 2012. This Court in paragraph 8 of the order
D    noticed that certain appeals were pending in which order of
     status quo relating to promotional posts had been passed. On
     that account, this Court found that no regular promotion could
     take place and hence the order of the High Court was
     untenable. This Court in such circumstances directed that the
E    Selection Committee be constituted by the Board within four
     weeks which shall consider the suitability of all the eligible
     candidates for holding the additional charge of the post of the
     Chief Engineer. The Parishad was allowed by this Court to
     choose someone to hold the officiating charge qua the post of
F    Chief Engineer but it was made clear that such decision in
     favour of any candidate would not enure to his benefit at the
     time of consideration for regular appointment.

        5. For some reasons no selection could be made within
G   the time granted by this Court for making the officiating
    arrangement but in the meanwhile Civil Appeal bearing
    No.2608 of 2011 (U.P. Power Corporation Ltd. v. Rajesh
    Kumar & Ors.) with other connected appeals, came to be finally
    decided by judgment dated April 27, 2012 reported in (2012)
    7 SCC 1. By that judgment, this Court declared the relevant
H
  RAJENDRA KUMAR AGRAWAL: v. STATE OF U.P.                      93
            [SHIVA KIRTI SINGH, J.]

provisions in the Act and the Rules providing for reservation in      A
matters of promotion to be ultra vires being in teeth of the
dictum in the case of M. Nagaraj v. Union of India (2006) 8
SCC 212. In paragraph 87 of the judgment it was clarified that
promotions that had been already given without the aid or
assistance of the relevant provision in the U. P. Public Services     B
(Reservation for Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994 and the U.P. Government
Servants Seniority Rules, 1991 which had been declared ultra
vires shall remain undisturbed. Thus, within one month of the
order of this Court dated March 27, 2012, the only impediment         c
in filling up the post of Chief Engineer by regular promotion
became non-existent and, therefore, the Parishad on 14.6.2012
issued a letter to the State Government urging for suitable steps
for regular appointment to the vacant post of Chief Engineer.
Before receipt of reply from the State Government, the                0
Parishad's application for extension of four weeks' time fixed
by order dated 27.3.2012 came up for orders of this C9urt
which extended the time period on 20.7.2012 by one month.
The State Government vide letter dated 27.7.2012 noticed the
eligibility list of officers submitted by the Parishad and after      E
noticing that only two officers of civil cadre and one officer of
electrical/mechanical cadre fulfilled the prescribed eligibility of
five years' experience on the post of Superintending Engineer,
accepted the advice by the Public Sector Department for grant
of relaxation in the qualifying experience of five years under the
provisions of Regulation 20 of the U.P. Avas Evam Vikas               F
Parishad (Appointment and Conditions of Service of Chief
Engineer) Regulations, 1990 (for short, 'the Regulations'].

     6. On 04.8.2012, the Parishad constituted a Selection
Committee for selecting the most eligible candidate to hold the       G
additional charge of Chief Engineer. The Selection Committee
in its meeting held on 06.8.2012 came to the opinion that since
there was no longer any legal impediment in proceeding with
regular selection for regular promotion to the post of Chief
Engineer, the Parishad should take a decision in that reg<1;rd        H
   94       SUPREME COURT REPORTS               [2014] ·12 S.C.R.


A and State Government be moved to constitute a Selection
  Committee for that purpose which is required to be headed by
  the Chief Secretary of the State. Appellant Rajendra Kumar
  Agrawal approached the High Court by way of writ petition
  bearing W.P.(S/B)No.1183/2012 claiming the officiating charge
B of Chief Engineer as the senior most eligible person and a
  direction against continuation of Housing Commissioner on the
  said post in officiating capacity. On 23.8.2012 the Parishad
  considered the recommendations of the Selection Committee
  and decided to relax the eligibility criteria of five years'
c experience to 3% years including the probation period of two
  years in the light of U.P. Government Servants Relaxation in
  Qualifying Service for Promotion Rules, 2006 (for brevity, 'Rules
  of 2006'). The decision of the Board granting relaxation of 1%
  years under the provisions of Rule 20 of the Regulations was
  taken after considering details of nine Superintending
0
  Engineers in which Anil Kumar Jain of Electrical/Mechanical
  cadre occupied seniority position no.1 followed by Rajendra
  Kumar Agrawal at serial no.14 with experience of 4 years 3
  months; Mathura Prasad Vaish at no.15 with experience of 3
  years 7 months; and Umesh Mittal at serial no.16 with
E experience of 3 years 7 months. Three other Superintending
  Engineers Gyanendra Singh, Jai Kant and Santram at seniority
  nos.21, 22 and 83 respectively had zero or very little length of
  experience whereas Narsingh Prasad, seniority position no.84
  and Pravender Kumar, seniority position no.88 had experience
F of 7 years or more. The experience of the concerned
  Superintending Engineers was calculated as on 01.1.2012 in
  the light of Regulation 5 which requires length of service to be
  reckoned as on January 1st of the year in which the selection
  is made. On account of relaxation in the requirecj experience
G of five years by 1% years, three senior Superintending
  Engineers, Rajendra Kumar Agrawal, Mathura Prasad Vaish
  and Umesh Mittal came in the eligibility zone which earlier
  included only three others who were at seniority position no.1
  belonging to Electrical/Mechanical cadre and seniority position
H nos.84 and 88 belonging to Civil cadre. The aforesaid decision
  RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                       95
            [SHIVA KIRTI SINGH, J.]
of relaxation was communicated to the State Government by             A
letter dated 24.8.2012 for taking immediate action for selection
to the post of Chief Engineer in accordance with the rules.

      7. The letter dated 24.8.2012 as well as decision of the
Parishad dated 23.8.2012 were challenged by Narsingh
                                                                      8
Prasad through Writ Petition (S/B)No.1264 of 2012. He
contended that the decision to make regular promotion was in
violation of the orders of this Court particularly order dated
27.3.2012, it also amounted to retrospective amendment of
eligibility criteria when the selection process was already under     C
way and that such decisions were only with a view to benefit
Rajendra Kumar Agrawal for political reasons. Another writ
petition filed by Anil Kumar Jain bearing W.P. No.1276 (S/B)
of 2012 was also directed against the same very decisions as
challenged by Narsingh Prasad. The 4th writ petition decided
by the common order was W.P.No.1207 (S/B) of2012 filed by             D
one Gyanendra Singh who had not been promoted then as a
Superintending Engineer but wanted his experience as an
officiating Superintending Engineer to be counted for promotion.
That was negated by the High Court and he has not chosen to
appeal against rejection of his claim. By the common impugned         E
order, the High Court dismissed the writ petition of Rajendra
Kumar Agrawal and allowed those filed by Narsingh Prasad
and Anil Kumar Jain. Since Anil Kumar Jain had not impleaded
Rajendra Kumar Agrawal in his writ petition, therefore, the latter
preferred only two Special Leave Petitions - one against              F
dismissal of his writ petition and the other against relief granted
to Narsingh Prasad. However, subsequently Anil Kr. Jain has
been impleaded in these appeals on his own request and
hence the entire common judgment is under question in
presence of all the parties and this Court is now called upon to      G
examine the following two main questions:

      (1)   Whether the Parishad should be allowed, as
            pleaded by it, to proceed with making regular
            promotion to the vacant post of Chief Engineer in
                                                                      H
    96         SUPREME COURT REPORTS               [2014) 12 S.C.R.


A                the light of subsequent judgment of this Court dated
                 27.4.2012 in the case of U.P. Power Corporation
                 v. Rajesh Kumar & Ors. (supra) or as held by the
                 High Court it be directed to fill up that vacancy only
                 on officiating basis in purported compliance of
B                order of this Court dated March 27, 2012?

         (2)     Whether the decision of the Parishad in compliance
                 with request of the State Government, to relax the
                 minimum qualifying experience of five years in
                 exercise of power under Regulation 20 is bad in
c                law for the reasons assigned by the High Court that
                 it amounts to retrospective amendment of rules of
                 eligibility after the selection process has begun and
                 that it is for dubious reasons only to accommodate
                 Rajendra Kumar Agrawal?
D
        8. With regard to the first question, we have no hesitation
  in holding that after the judgment of this Court dated April 27,
  2012 in the case of U.P. Power Corporation Ltd. v. Rajesh
  Kumar & Ors, (supra) there was no impediment in the way of
E the Parishad in proceeding with regular selection for filling up
  the vacant post of Chief Engineer in a regular manner. This
  Court had directed for making officiating arrangement by
  selecting a suitable Superintending Engineer to hold additional
  charge of the post of Chief Engineer only on account of order
F of status quo qua the process of regular promotion in pending
  civil appeals that were finally disposed of on April 27, 2012.
  Thereafter, the Parishad would have only wasted time and
  resources in making officiating arrangement after going through
  elaborate procedure of selection. There can be no doubt that
G the Parishad committed an act of impropriety in not bringing
  the subsequent vacation of status quo order on account of
  disposal of pending civil appeals on 27.4.2012 and in not
  seeking formal permission of this Court to fill up the post of
  Chief Engineer on regular basis. However, now when the full
  facts are before this Court, it would not be proper to direct the
H
  RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                       97
            [SHIVA KIRTI SINGH, J.]
Parishad to fill up the vacancy only on officiating basis. Question   A
no.1 is answered accordingly.

     9. So far as Question no.2 is concerned, in the light of
answer to Question no.1, only two grounds which weighed with
the High Court require our attention. The High Court accepted 8
the contentions advanced on behalf of Narsingh Prasad that the·
impugned actions of the Parishad amounted to retrospective
amendment of eligibility criteria after the selection process had
commenced and that such decisions were taken only to benefit
Rajendra Kumar Agrawal for political or dubious reasons.
                                                                      c
    10. Before adverting to the rival submissions, it will be
useful to extract relevant Regulations 5 and 20 of the
Regulations which are as follows :

     "5. Source of appointment - Appointment to the post of           o
     Chief Engineer and other equivalent posts as may be
     specified in the cadre of the Service shall be made by
     promotion in the manner laid down in these Regulations
     from amongst the Superintending Engineers who have
     completed not less than five years of service as                 E
     Superintending Engineer as on January 1st of the year in
     which the selection is made;



                                                                      F
     20. Relaxation - (1) If the Board is satisfied that the
     operation of any regulation regarding the conditions of
     service of persons appointed to the service causes undue
     hardship in any particular case, they may, notwithstanding       G
     anything contained in the regulations, applicable to his
     case, by order, dispense with ............................. or
     relax the requirement of that regulation to such extent and
     subject to such conditions as they may consider necessary
     for dealing with the case in a just and equitable manner.
                                                                      H
    98        SUPREME COURT REPORTS                   [2014] 12 S.C.R.


A        (2) When, in the opinion of the Board, or under the general
         or specific orders of the State Government it appears
         necessary to do so, the Board may make any appointment
         or appointments to the service otherwise than in
         accordance with these regulations, or in partial relaxation
B        of any or some of the regulations and in case of any
         appointment which is not in strict accord with these
         regulations, the Board shall be deemed to have made the
         appointment(s) in relaxation of these regulations."

          11. Learned counsel for the appellant - Rajendra Kumar
C   Agrawal - Mr. Nikhil Majithia has relied upon large number of
    judgments of this Court in support of his contention that neither
    of the grounds have any merit. According to him, the power to
    relax the eligibility criteria .was already available under
    Regulation 20 of the Regulations and, therefore, it was a
D   mistake on the part of the High Court in relying upon various
    judgments which lay down a principle that retrospective
    amendment of the rules relating to selection is impermissible
    once the selection process has been initiated. In other words,
    the submission is that in the present case it is a misconception
E   that there has been any amendment much less a retrospective
    amendment of the policy decision or the rules governing the
    selection process. According to him, the power of relaxation
    as available in Regulation 20 is to be found in many other rules
    governing different services. With a view to mitigate undue
F   hardship or to meet a particular situation, it may be validly
    exercised in a situation where requisite qualified persons may
    not be available for selection and appointment. In such
    situations, the Government, in exercise of its powers to relax
    requirement of rules, may issue an order relaxing any particular
G   rule or rules with a view to avail the services of requisite officers.
    In support of these submissions reliance has been placed upon
    judgments of this Court in the case of (1) J.C. Yadav & Ors.
    v. State of Haryana & Ors. (1990) 2 SCC 189; (2) Sandeep
    Kumar Sharma v. State of Punjab & Ors. (1997) 10 SCC
H   298;, (3) Ashok Kumar Uppal & Ors. v. State of J&K & Ors.
  RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                   99
            [SHIVA KIRTI SINGH, J.]
(1998) 4 SCC 179; and (4) State of Gujarat & Ors. v.             A
Arvindkumar T. Tiwari & Anr. (2012) 9 SCC 545.

      12. For the purpose at hand, it is useful to refer to
paragraph 6 of the judgment in the case of J.C. Yadav (supra).
It runs as follows :                                             B
    "6. The rule confers power on the government to dispense
    with or to relax the requirement of any of the rules to the
    extent and with such conditions as it may consider
    necessary for dealing with the case in a just and equitable
    manner. The object and purpose of conferring this power C
    on the government is to mitigate undue hardship in any
    particular case, and to deal with a case in a just and
    equitable manner. If the rules cause undue hardship or
    rules operate in an inequitable manner in that event the
    State Government has power to dispense with or to relax D
    the requirement of rules. The rule does not restrict the
    exercise of power to individual cases. The government
    may in certain circumstances relax the requirement of rules
    to meet a particular situation. The expression 'in any
    particular case' does not mean that the relaxation should E
    be confined only to an individual case. One of the
     meanings of the expression 'particular' means 'peculiar or
     pertaining to a specified person - thing - time or place -
     not common or general'. The meaning of the word
     particular in relation to law means separate or special, F
     limited or specific. The word 'case' in ordinary usage
     means 'event', 'happening', 'situation', 'circumstances'.
     The expression 'case' in legal sense means 'a case', 'suit'
     or 'proceeding in court or Tribunal'. Having regard to these
     meanings the expression 'in any particular case' would G
     mean: in a particular or p~rtaining to an event. situation or
     circumstances. Rule 22 postulates relaxation of rules to
     meet a particular event or situation, if the operation of the
     rules causes hardship. The relaxation of the rules may be
     to the extent the State Government may consider
                                                                   H
    100       SUPREME COURT REPORTS                 [2014] 12 S.C.R.

A         necessary for dealing with a particular situation in a just
          and equitable manner. The scope of rule is wide enough
          to confer power on the State Government to relax the
          requirement of rules in respect of an individual or class of
          individuals to the extent it may consider necessary for
B         dealing with the case in a just and equitable manner. The
          power of relaxation is generally contained in the Rules with
          a view to mitigate undue hardship or to meet a particular
          situation. Many a time strict application of service rules
          create a situation where a particular individual or a set of
c         individuals may suffer undue hardship and further there
          may be a situation where requisite qualified persons may
          not be available for appointment to the service. In such a
          situation the government has power to relax requirement
          of rules. The State Government may in exercise of its
          powers issue a general order relaxing any particular rule
D
          with a view to avail the services of requisite officers. The
          relaxation even if granted in a general manner would
          ensure to the benefit of individual officers."

          13. In a more recent case of Arvindkumar T. Tiwari
E   (supra) this Court considered several judgments on the issue
    including that in the case of J.C. Yadav (supra) and Ashok
    Kumar Up pal (supra) and in paragraph 10 of the judgment held
    as follows :

F         "10. Th& appointing authority is com pr. 1nt to fix a higher
          score for selection, than the one required to be attained
          for mere eligibility, _but by way of its natural corollary, it
          cannot be taken to mean that eligibility/norms fixed by the
          statute or rules can be relaxed for this purpose to the extent
          that the same may be lower than the ones fixed by the
G         statute. In a particular case, where it is so required,
          relaxation of even educational qualification(s) may be
          permissible, provided that the rules empower the authority
          to relax such eligibility in general, or with regard to an
          individual case or class of cases of undue hardship.
H
 RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                  101
           [SHIVA KIRTI SINGH, J.]
    However, the said power should be exercised for justifiable A
    reasons and it must not be exercised arbitrarily, only to
    favour an individual. The power to relax the recruitment
    rules or any other rule made by the State GovernmenV
    authority is conferred upon the GovernmenVauthority to
    meet any emergent situation where injustice might have B
    been caused or, is likely to be caused to any person or
    class of persons or, where the working of the said rules
    might have become impossible. (Vide State of Haryana
    v. Subash Chander Marwaha (1974) 3 SCC 220, J.C.
    Yadav & Ors. v. State of Haryana & Ors. (1990) 2 SCC C
    189 and Ashok Kumar Uppal & Ors. v. State of J&K &
    ors. (1998) 4 sec 179."
     14. In reply, learned senior advocate Mr. S.S. Upadhyay
appearing for Narsingh Prasad supported the view taken by
the High Court and submitted that the decision to relax the D
eligibility criteria under Regulation 20 has to be viewed as
changing the rules of selection after the process had started
and, therefore, it has rightly been disapproved by the High
Court. He placed reliance upon following judgments of this
Court:                                                        E

      (1)   Y.V. Rangaiah & Ors. etc. v. J. Sreenivasa Rao
            & Ors. etc. (1983) 3 SCC 284;

      (2)   B.L. Gupta & Anr. v. M.C.D. (1998) 9 SCC 223;
                                                                  F
      (3)   Mohd. Raisul Islam & Ors. v. Gokul Mohan
            Hazarika & Ors. (2010) 7 SCC 560; and

      (4)   State of Orissa & Anr. v. Mamata Mohanty
            (2011) 3 sec 436.
                                                                  G
     15. In the case ofY.V. Rangaiah (supra) as well as in the
case of 8.L. Gupta (supra), the question of granting relaxation
under the existing rules did not fall for consideration of this
Court. The only issue was whether the subsequent amendment
in the service rules which were held to be prospective could      H
    102       SUPREME COURT REPORTS                  (2014] 12 S.C.R.


A   be applied to the selection process in respect of vacancies
    which had arisen prior to amendment of the rules. In that
    situation, following several earlier judgments, it was held that
    the vacancies which had occurred prior to the amendment of
    the rules would be governed by the old rules and not by the
B   amended rules. After holding so in paragraph 9 in the case of
    B.L. Gupta (supra), the Court explained the position further in
    paragraph 10 in following terms :

          "10 ........... If no statutory rules had existed, it may have
          been possible, though we express no opinion on it, that
c         the existing incumbents may have been regularised.
          Where, however, statutory rules exist, the appointments
          and promotions have to be made in accordance with the
          statutory rules specially where it has not been shown to us
          that the Rules gave the power to the appointing authority
D         of relaxing the said Rules. In the absence of any such
          power of relaxation, the appointment as Assistant
          Accountant could only be made by requiring the
          candidates to take the examination which was the method
          which was prescribed by the 1978 Rules."
E
         16. In paragraph 39 of the judgment in the case of Mohd.
    Raisul Islam (supra) it was reiterated that "once a process of
    selection is started on the basis of the existing Rules of
    recruitment, the said Rules will continue to govern the selection
F   process, notwithstanding any amendment which may have been
    effected to the said Rules in the meantime." In the case of
    Mamata Mohanty (supra) the facts were quite different.
    Although learned senior counsel placed reliance upon only a
    particular sub-para, i.e., sub-para no.(viii) of para 68, in support
G   of contention that granting relaxation "at this stage" amounts to
    change of criteria after issuance of advertisement, which is
    impermissible in law, a reading of the entire paragraph 68 and
    other paragraphs clearly shows that the fact situation in that
    case was entirely different. Initially appointments had been
    made under the 1974 Rules under which there was no power
H
  RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                    103
            [SHIVA KIRTI SINGH, J.]
to grant relaxation in eligibility in any authority, either the     A
University or the State. Hence, it was held in sub-para (xi) of
para 68 that in absence of such power the same could not have
been exercised. The facts further show that contrary to the rules
and the advertisement persons having less than the prescribed
minimum marks had been appointed and such appointments              B
had been approved after long time, in some cases, after 10 to
12 years. One university issued a routine order applicable to a
large number of colleges after a lapse of about a decade for
granting relaxation in the academic qualification. This Court
disapproved the so-called relaxation by the university in the       c
facts and circumstances indicated above.

      17. The judgments relied upon by Mr. Upadhyay, learned
senior advocate, in our considered view, are inapplicable to the
facts of the present case especially in view of the provisions in
Regulation 20 which has always existed in the Regulations. On       D
the other hand, the submissions advanced by Mr. Majithia,
learned counsel for Rajendra Kumar Agrawal deserve to be
accepted particularly in view of the judgments relied upon by
him. The Parishad had the necessary power to relax the
eligibility criteria. In fact under Regulation 20(2) the power is   E
available even with the State Government to issue general or
specific orders enabling the Board to make any appointment
or appointments to the service otherwise than in accordance
with the Regulations or in partial relaxation of any or some of
the regulations. This Regulation goes on to provide further that    F
"in case of any appointment which is not in strict accord with
these Regulations, the Board shall be deemed to have made
the appointment(s) in relaxation of these Regulations."

     18. In the appeal filed by Narsingh Prasad, a challenge has    G
been made to the finding given by the High Court to the effect
that the authorities have power to relax the rules. Thereafter,
the High Court further held that such relaxation cannot be
retrospective. The former observation has been challenged by
Narsingh Prasad on the ground that power to relax the rules of      H
    104       SUPREME COURT REPORTS                  [2014] 12 S.C.R.


A eligibility can be exercised within the parameters of Rule 4 of
  the 2006 Rules which provides as follows :

          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
B
          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 upto fifty percent by the Government in the
          Administrative Department in consultation with the
c         Personnel Department of the Government, excluding the
          period of probation as laid down for the said lower post
          or posts, as the case may be."

                                                  (emphasis supplied)
D
        19. A perusal of Rule 4 shows that the power of relaxation
  available to the concerned authority under different service·
  rules for filling a post by promotion has been sought to be
  regulated with a condition that prescribed minimum length of
E service may be suitably relaxed up to the prescribed extent if
  the required number of eligible persons are not available in the
  field of eligibility. The contention appears to be that although
  the power to relax is available, the Parishad erred in exercising
  such power because already there were three eligible persons
  available in the field of eligibility. However, it has nowhere been
F pleaded nor it was argued as to what shall be the required
  number of eligible persons for exercise of such power. In this
  regard, the Regulations also do not throw any light. On this
  aspect, a perusal of letter dated 23. 11.2010 sent by the
  Parishad to the Principal Secretary, U.P. Administration,
G Housing & Planning Section-II, discloses that as per Rule 4 of
  the U.P. Eligibility List Rules 1986 (Promotion on the post of
  Outer Region of Public Service Commission) where sufficient
  persons are eligible for promotion, one list of the senior most
  candidates will be prepared by appointing authority, in which
H
  RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                      105
            [SHIVA KIRTI SINGH, J.]
names as possible thrice multiple of number of vacancies but           A
at least eight will be kept. Thereafter, the letter refers to Rule 4
of the Rules of 2006 governing relaxation which limits the extent
to which relaxation can be granted. Seen in the background of
aforesaid facts, the contention advanced in the appeal of
Narsingh Prasad, as noted above, is found to be without any            B
basis. The Parishad acted as per letter of the State
Government and granted relaxation to the extent permissible
although this exercise could also result in enlarging the zone
of consideration only to six candidates. In paragraph 10 of the
judgment in the case of Arvindkumar T. Tiwari (supra}                  c
extracted earlier, this Court has held that if the rules empower,
such relaxation is permissible but has cautioned that such power
should be exercised for justifiable reasons and it must not be
exercised arbitrarily, only to favour an individual.

      20. Since the case at hand is not where the rules have been      D
amended after the commencement of selection process but
only of exercise of power to relax the qualification as to
minimum length of service, it may not be necessary to go into
questions of fact as to when the selection process was initiated,
i.e., whether after or before the relaxation in qualification or       E/
whether the selection process had at all commenced or not.
However, since the rival parties have addressed us on this
issue, it will be useful to notice that in this case, the process
for selection of suitable candidate for regular promotion to the
post of Chief Engineer could not be initiated due to pendency          F
of some civil appeals in which order of status quo was
operating qua regular promotion in various services on account
of challenge to the provisions for reservation in the matter of
promotion. For that very reason even by order dated March 27,
2012 this Court directed to undertake elaborate process of             G
selection but only for making officiating arrangement by
conferring additional charge for the post in question on the
selected candidate. It was only after aforenoted impediment got
removed on account of judgment in the pending civil appeals
                                                                       H
    106      SUPREME COURT REPORTS               [2014] 12 S.C.R.


A on 27th April 2012 that the concerned authorities got liberty to
  initiate the selection process for regular promotion. The
  selection process initiated earlier, as noted was only for making
  officiating arrangement. In the order dated March 27, 2012 this
  Court had made it clear that selection for holding additional
B charge would not confer any benefit upon the selected
  incumbent in the matter of regular promotion. Seen in the
  background of such facts, we find merit in the submission
  advanced on behalf of the Parishad that the selection process
  could have commenced only after April 27, 2012. Mr. Kailash
c Vasdev, senior advocate appearing for the Parishad usefully
  pointed out in this regard to the explanatory note for the Board
  meeting for 23rd August 2012. In paragraph 5 of that note it is
  mentioned that the matter of regular promotion to the post of
  Chief Engineer is pending consideration before the
  Government which had suggested for relaxing the eligibility
0
  condition of five years and at the end of that paragraph it was .
  suggested that after getting the proposal for relaxation passed
  from the Board, approval of the Administration Department may
  be obtained and then a proposal for making necessary
  promotion may be put up. Anticipating acceptance of such
E proposal, the details of nir:ie Superintending Engineers with their
  experience as on 1.1.2012 was also given in that explanatory
  note. In such facts and circumstances it is apparent that the High
  Court erred in holding that the selection process for regular
  promotion to the post of Chief Engineer had already
F commenced. The Government was yet to constitute a proper
  Committee for this purpose and the list of eligible candidates
  had also not been finalized till the issue of relaxation was taken
  up as per directions of the State Government. The High Court
  mistook the process for making officiating arrangement as the
G process for selection for filling up the post on regular basis.

        21. The only remaining ground which weighed with the
    High Court relates to the issue of malafide or improper exercise
    of power of relaxation allegedly only to benefit appellant -
H
  RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                   107
            [SHIVA KIRTI SINGH, J.]
Rajendra Kumar Agrawal. On this issue, Mr. Majithia has taken      A
us through the pleadings in the writ petition to show that no
factual malafide was alleged against any person in authority nor
such authority was impleaded by name to answer even vague
suggestions of malafide. In fact by relying upon judgments in
the case of State of Bihar & Anr. v. P.P. Sharma, IAS & Anr.       8
1992 Supp.(1) SCC 222; M.V. Thimmaiah & Ors. v. U.P.
Public Service Commission & Ors. (2008) 2 SCC 119; and
Jasbir Singh Chhabra & Ors. v. State of Punjab & Ors.
(2010) 4 sec 192, it was rightly submitted that in absence of
impleadment of any member of the Parishad or any of the            C
officers of the State Government by name and merely on vague
or bald assertions no case of malafide could be made out so
as to invalidate the decisions taken by the Parishad for
exercise of power of relaxation under Regulation 20.

      22. In reply learned senior advocate Mr. Upadhyay            D
submitted that before the High Court the contentions were only
to show malice in law by alleging and showing that power of
relaxation had been exercised to achieve an impermissible and
improper objective of conferring eligibility upon Rajendra Kumar
Agrawal on account of his influence. He placed reliance upon       E
paragraphs 11 ·and 25 of judgment of this Court in the case of
R.S. Garg v. State of U.P. & Ors .. (2006) 6 SCC 430. In
paragraph 11 of that judgment, the Court noticed the relevant
rule for relaxation of other conditions of service. That rule
permitted relaxation of such conditions of service which caused    F
undue hardship in any particular case, for dealing with the case
in a just and equitable manner. Thereafter the Court, on facts,
found that the eligibility criteria had been relaxed to
accommodate one person who was not facing any hardship
much less undue hardship. The Court found that in fact the         G
relaxation would have caused undue hardship to the persons
senior to the beneficiary. In paragraph 25 the Court explained
the difference in the concept of 'malice in law' and 'malice in
fact'. It was reiterated that any action resorted to for an
unauthorized purpose would construe malice in law.
                                                                   H
    108     SUPREME COURT REPORTS                (2014] 12 S.C.R.


A       23. So far as the present case is concerned we do not find
  any material to show that ihe 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
8 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
C 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
D 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.

E      24. Mr. D.K. Garg, learned counsel for the impleaded
  respondent - Anil Kumar Jain - advanced a submission that
  there is no specific challenge to the impugned judgment
  whereby writ petition of Anil Kumar Jain was also allowed. This
  submission needs to be noticed only to be rejected. The entire
F common judgment is under challenge before us and since the
  said applicant is already impleaded, there is no legal obstacle
  in entertaining such a challenge.

       25. In the light of our discussions and findings, we are left
  with no option but to set aside the judgment and order of the
G High Court under appeal by holding that the power of relaxation
  under the Regulations was always available and has been
  exercised in a manner which does not call for any interference.
  We direct the Parishad and the State Government to expedite
  the process of selection of the most suitable candidate out of
H
  RAJENDRA KUMAR AGRAWAL v. STATE OF U.P.                 109
            [SHIVA KIRTI SINGH, J.]
the eligible candidates and fill up the vacant post of Chief     A
Engineer in the Parishad as per law without any delay within
eight weeks. The appeals preferred by Rajendra Kumar
Agrawal stand allowed and the appeal preferred by Narsingh
Prasad is dismissed. There shall be no order as to costs.
                                                                 B
Nidhi Jain                                Appeals disposed of.