STATE OF U.P. & ORS.versusVIKASH KUMAR SINGH & ORS.

                          [2021] 7 S.C.R. 359                               359


                       STATE OF U.P. & ORS.                                 A
                                   v.
                 VIKASH KUMAR SINGH & ORS.
                   (Civil Appeal No. 6868 of 2021)
                        NOVEMBER 22, 2021                                   B
         [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Service Law: Promotion of Superintending Engineer to the
post of Chief Engineer (Civil) Level-II – Promotion to the post of
Chief Engineer (Civil) Level-II is governed by U.P. Service of
                                                                            C
Engineers (Irrigation Department) (Group A) Service Rules, 1990
– As per r.5(iii) of Rules, 1990, promotion to the post of Chief
Engineer shall be from amongst the substantively appointed
Superintending Engineers who have completed 25 years of service
– Original writ petitioners-Superintending Engineers were not
considered for promotion as they had not completed 25 years of              D
service as required by Rules of 1990 – High Court quashed the
eligibility lists and issued writ of mandamus commanding the
competent authority to grant relaxation in qualifying service, which
as such was permissible under r.4 of the Relaxation Rules, 2006 –
Hence instant appeal – Held: It is an admitted position that the
                                                                            E
original writ petitioners did not fulfill the eligibility criteria having
not completed 25 years of service – The eligibility lists were prepared
by the department absolutely as per r.5(iii) and r.8(iii) of the Rules,
1990 – Therefore, as such, the High Court ought not to have set
aside the said eligibility lists, which as such were prepared absolutely
in accordance with the Rules, 1990 – The word used in r.8 of                F
Relaxation Rules, 2006 is “May” – Therefore, the relaxation may
be at the discretion of the competent authority and cannot be prayed
as a matter of right – If a conscious decision is taken not to grant
the relaxation, merely because Rule permits relaxation, no writ of
mandamus can be issued directing the competent authority to grant
                                                                            G
relaxation in qualifying service – High Court committed a grave
error in issuing the writ of mandamus – U.P. Government Servants
Relaxation in Qualifying Service for Promotion Rules, 2006 – r.4 –
U.P. Service of Engineers (Irrigation Department) (Group A) Service
Rules, 1990 – r.5(iii).
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                                  359
360             SUPREME COURT REPORTS                        [2021] 7 S.C.R.


A             Allowing the appeal, the Court
            HELD: 1. The eligibility lists were prepared by the
      department absolutely as per Rule 5(iii) and Rule 8(iii) of the
      Rules, 1990. The names of the original writ petitioners were
      excluded from the eligibility list of Superintending Engineer for
B     promotion to the post of Chief Engineer on the ground that they
      did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules,
      1990. Therefore, as such, the High Court ought not to have set
      aside the said eligibility lists, which as such were prepared
      absolutely in accordance with the Rules, 1990. [Para 7][364-G-
      H; 365-A]
C
            2. The word used in the Rule 8 of Relaxation Rules, 2006
      is “MAY”. Therefore, the relaxation may be at the discretion of
      the competent authority. The relaxation cannot be prayed as a
      matter of right. If a conscious decision is taken not to grant the
      relaxation, merely because Rule permits relaxation, no writ of
D     mandamus can be issued directing the competent authority to
      grant relaxation in qualifying service. Therefore, the High Court
      has committed a grave error in issuing the writ of mandamus
      commanding the competent authority to grant relaxation in the
      qualifying service. Consequently, the High Court has also erred
E     in quashing and setting aside the eligibility lists dated 18.03.2019
      and 10.05.2019, which as such were prepared absolutely in
      consonance with the Rules, 1990 and Rules, 2006. [Para 7.1][365-
      B-E]
              CIVIL APPELLATE JURISDICTION: Civil Appeal No.6868 of
F     2021.
            From the Judgment and Order dated 24.07.2020 of the High Court
      of Judicature at Allahabad, Lucknow Bench in Special Appeal
      (Defective) No.187 of 2020.
           Sakha Ram Singh, Sr. Adv., Rajeev Kumar Pandey, Ashiwan
G     Mishra, Kamlendra Mishra, Advs. for the Appellants.
           Rana Mukherjee, Sr. Adv., Abhijit Banerjee, Advs. for the
      Respondents.


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  STATE OF U.P. & ORS. v. VIKASH KUMAR SINGH & ORS.                              361


       The Judgment of the Court was delivered by                                A
       M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 24.07.2020 passed by the Division Bench of the High
Court of Judicature at Allahabad (Lucknow Bench) by which the Division
Bench of the High Court has dismissed the Special Appeal (Defective              B
Complaint No.187 of 2020) filed by the appellants herein- State of U.P.
and Others confirming the judgment and order passed by the learned
Single Judge quashing and setting aside the eligibility lists dated 18.03.2019
and 10.05.2019 of the Superintending Engineers (Civil) for promotion to
the post of Chief Engineer (Civil) Level-II from the department and              C
further issuing a writ of mandamus, commanding the appellants –
competent authority to prepare the eligibility list of the Superintending
Engineer (Civil) including the names of the respondents – original writ
petitioners for promotion to the post of Chief Engineer (Civil) Level – II
by granting them relaxation in minimum length of service in accordance
with the U.P. Government Servants Relaxation in Qualifying Service for           D
Promotion Rules, 2006, the State of U.P. and others have preferred the
present appeal.
       2. The facts leading to the present appeal in nutshell are as under:-
       2.1 The respondents – original writ petitioners (hereinafter referred     E
to as the “original writ petitioners”) are discharging their duties as
Superintending Engineers in different places. They claim promotion to
the post of Chief Engineer (Civil) Level-II. The recruitment to the post
of Chief Engineer (Civil) Level – II is governed by the U.P. Service of
Engineers (Irrigation Department) (Group A) Service Rules, 1990
(hereinafter referred to as “Rules, 1990”). As per Rule 5(iii) of the said       F
Rules, promotion to the post of Chief Engineer shall be from amongst
the substantively appointed Superintending Engineers in the Civil or
Mechanical Branch, as the case may be, who have completed twenty
five (25) years of service (including at-least three years’ service as
Superintending Engineer) on the first day of the year of recruitment. As         G
per the Office Circular dated 22.03.1984 issued by the State Government
laying out the guidelines for selection/promotion to the posts within the
purview of the Public Service Commission, the criteria for promotion
shall be merit. The State Government have also framed the U.P.
Government Servant Relaxation in Qualifying Service for Promotion
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362             SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A     Rules, 2006 (hereinafter referred to as “the Relaxation Rules, 2006”),
      which prescribe that in case the required number of eligible persons are
      not available in the field of eligibility, the prescribed minimum length of
      service may be relaxed upto 50% by the Government in the
      Administrative Department in consultation with the Personnel Department
      excluding the period of probation.
B
             2.2 The appointing authority determined 26 vacancies of Chief
      Engineer (Civil) Level-II for the Recruitment Year 2018-2019. The
      eligibility list was to be prepared in terms of Rule 4 of Uttar Pradesh
      Promotion by Selection (on posts outside the purview of Public Service
      Commission) Eligibility List Rules, 1986 (hereinafter referred to as “Rules,
C     1986”) containing the names of the senior most candidates, as far as
      possible, three times the number of vacancies. Since there were 26
      vacancies of Chief Engineer determined as per Rules, 1986, totaling 78
      Superintending Engineers (Civil) were eligible to be considered for
      promotion to the post of Chief Engineer.
D            2.3 On 23.07.2018, an eligibility list of Recruitment Year 2018-
      2019 of 74 Superintending Engineer (Civil) was prepared. The names of
      the original writ petitioners found place at Sl. Nos. 60, 63, 64, 67, 72 and
      74. However, as they had not completed 25 years of service, which was
      the requirement as per the Rules, 1990, their cases were not considered
E     for promotion. Again on 07.03.2019, a revised eligibility list for the
      Recruitment Year 2018-2019 of 59 Superintending Engineers (Civil) was
      prepared and the names of the original writ petitioners were excluded
      on the ground that they had not completed 25 years of service. Again on
      18.03.2019, another revised eligibility list for the Recruitment Year 2018-
      2019 of 44 Superintending Engineer (Civil) was prepared in which also
F     the names of the original writ petitioners were excluded. Lastly on
      10.05.2019, one other revised list of 41 Superintending Engineers (Civil)
      was prepared excluding the names of the original writ petitioners.
      Therefore, the original writ petitioners preferred Writ Petition No.14962
      (S/S) of 2019 assailing before the High Court the eligibility lists dated
G     18.03.2019 and 10.05.2019 of the Superintending Engineer (Civil) for
      promotion to the post of Chief Engineer (Civil) Level–II in the Department
      of Irrigation and Water Resources mainly on the ground that they were
      entitled to the relaxation in minimum qualifying service as per Relaxation
      Rules, 2006. By judgment and order dated 11.12.2019, the learned Single
      Judge issued the writ of mandamus commanding the competent authority
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  STATE OF U.P. & ORS. v. VIKASH KUMAR SINGH & ORS.                             363
                    [M. R. SHAH, J.]

to prepare the eligibility list of Superintending Engineer (Civil) including    A
the names of the original writ petitioners for promotion to the post of
Chief Engineer (Civil) granting them relaxation in minimum length of
service in accordance with Relaxation Rules, 2006 as amended in the
year 2013. Consequently, the learned Single Judge quashed and set aside
the eligibility lists dated 18.03.2019 and 10.05.2019 of Superintending
                                                                                B
Engineer for promotion to the post of Chief Engineer.
       2.4 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge, the State of U.P. filed the Special
Appeal before the Division Bench and by the impugned judgment and
order, the Division Bench of the High Court has dismissed the special
appeal and has confirmed the judgment and order passed by the learned           C
Single Judge.
       3. Shri Sakha Ram Singh, learned Senior Advocate has appeared
on behalf of the appellants and Shri Rana Mukherjee, learned Senior
Advocate has appeared on behalf of the respondents – original writ
petitioners.                                                                    D

        4. Shri Sakha Ram Singh, learned Senior Advocate appearing on
behalf of the State has vehemently submitted that admittedly the original
writ petitioners did not fulfil the eligibility criteria as contained in Rule
5(iii) of the Rules, 1990. It is submitted that therefore the names of the
original writ petitioners were rightly excluded from the eligibility list of    E
Superintending Engineer (Civil) for the promotion to the post of Chief
Engineer (Civil). It is submitted that as such the eligibility list prepared
by the competent authority were in conformity with the provisions as
contained in Rule 5(iii) of the Rules, 1990.
       4.1 It is submitted that grant of relaxation under the Relaxation        F
Rules, 2006 is discretionary and no writ of mandamus can be issued
directing the competent authority to grant the relaxation. It is submitted
that word used in Rule 4 of Relaxation Rules, 2006 is ‘MAY’ and only in
a case where the required number of eligible persons are not available in
the field of eligibility. It is submitted that no employee can claim the        G
relaxation as a matter of right.
       4.2 It is therefore submitted that as admittedly the original writ
petitioners did not fulfil the eligibility criteria of having completed 25
years of service, their names were not required to be included in the
eligibility list for promotion to the post of Chief Engineer. It is submitted
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364             SUPREME COURT REPORTS                              [2021] 7 S.C.R.


A     that the High Court has erred in quashing and setting aside the eligibility
      lists dated 18.03.2019 and 10.05.2019, which as such were in absolute
      consonance with the statutory provisions of Rule 5(iii) and 8(iii) of the
      Rules, 1990.
            4.3 Making above submissions, it is prayed to allow the present
B     appeal.
             5. Present appeal is opposed by Shri Rana Mukherjee, learned
      Senior Advocate appearing on behalf of the respondents – original writ
      petitioners. It is submitted that in the facts and circumstances of the
      case and on giving cogent reasons the learned Single Judge rightly issued
C     the writ of mandamus commanding the appellants – competent authority
      to grant relaxation to the original writ petitioners. It is submitted that the
      learned Single Judge rightly considered that the eligibility list has to be
      prepared applying the ratio of 1:3 so as to have more meritorious
      candidates. It is therefore submitted that as solely on technical ground
      of not completing 25 years of service, the names of the original writ
D     petitioners were excluded and there are specific Relaxation Rules, 2006,
      which provide for relaxation in qualifying service, the High Court has
      not committed any error in issuing the writ of mandamus to grant the
      relaxation as per Rule 4 of the Relaxation Rules, 2006.
            6. We have heard the learned Senior Advocates appearing for the
E     respective parties at length.
              7. At the outset, it is required to be noted that the learned Single
      Judge issued the writ of mandamus commanding the competent authority
      to grant the relaxation as per Rule 4 of the Relaxation Rules, 2006 in
      qualifying service and consequently has quashed and set aside the
F     eligibility lists dated 18.03.2019 and 10.05.2019. At the outset, it is required
      to be noted that as such as per Rule 5(iii) of the Rules, 1990, one of the
      conditions to be eligible is that the Superintending Engineer must have
      completed 25 years of service (including at-least three years’ service as
      Superintending Engineer). It is an admitted position that the original writ
G     petitioners did not fulfill the eligibility criteria as they did not have the
      qualifying service of having completed 25 years of service. Thus, the
      eligibility lists were prepared by the department absolutely as per Rule
      5(iii) and Rule 8(iii) of the Rules, 1990. The names of the original writ
      petitioners were excluded from the eligibility list of Superintending
      Engineer for promotion to the post of Chief Engineer on the ground that
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  STATE OF U.P. & ORS. v. VIKASH KUMAR SINGH & ORS.                              365
                    [M. R. SHAH, J.]

they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules,    A
1990. Therefore, as such, the High Court ought not to have set aside the
said eligibility lists, which as such were prepared absolutely in accordance
with the Rules, 1990.
       7.1 The learned Single Judge thereafter while quashing and setting
aside the eligibility lists dated 18.03.2019 and 10.05.2019 has issued the       B
writ of mandamus commanding or directing the competent authority to
grant relaxation in qualifying service, which as such was permissible
under Rule 4 of the Relaxation Rules, 2006. The word used in the Rule
4 of Relaxation Rules, 2006 is “MAY”. Therefore, the relaxation may
be at the discretion of the competent authority. The relaxation cannot be
prayed as a matter of right. If a conscious decision is taken not to grant       C
the relaxation, merely because Rule permits relaxation, no writ of
mandamus can be issued directing the competent authority to grant
relaxation in qualifying service. Therefore, the High Court has committed
a grave error in issuing the writ of mandamus commanding the competent
authority to grant relaxation in the qualifying service. Consequently, the       D
High Court has also erred in quashing and setting aside the eligibility lists
dated 18.03.2019 and 10.05.2019, which as such were prepared absolutely
in consonance with the Rules, 1990 and Rules, 2006. The impugned
judgments and orders passed by the learned Single Judge as well as the
Division Bench of the High Court are not sustainable in law.
                                                                                 E
       8. In view of the above and for the reasons stated above, the
present appeal succeeds. The impugned judgment and order passed by
the Division Bench passed in Special Appeal (Defective Complaint No.
187 of 2020) and the judgment and order passed by the learned Single
Judge dated 11.12.2019 passed in Writ Petition No. 14962(S/S) of 2019
are hereby quashed and set aside. Consequently, the writ petition filed          F
by the original writ petitioners being Writ Petition No.14962(S/S) of 2019
stands dismissed. Present appeal is allowed accordingly, however, there
shall be no order as to costs. Pending applications, if any, also stand
disposed of.
                                                                                 G
Devika Gujral                                                  Appeal allowed.




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