Holding

The Board's promotion process, based on merit and within the statutory framework, was lawful and the respondent's promotion could not be set aside.

Summary

The appellant, U.P. Jal Nigam, challenged the promotion of a Junior Engineer, N.K. Agarwal, who claimed entitlement to promotion under the 25% quota and a 5% graduate quota prescribed in the U.P. Jal Nigam Engineers (Public Health Branch) Service Regulations, 1978. Agarwal, a graduate with ten years of service, was not considered in the first selection and was not selected in the second, prompting a writ petition that the High Court directed to be considered and resulted in his promotion. The Supreme Court examined whether the Board's "zone of consideration" and the relaxation of qualifying criteria complied with the regulations and the principle that merit and ability must govern promotions. It held that the Board’s selection process, based on merit, did not violate any statutory provision and that the promotion already effected could not be set aside. Consequently, the Court dismissed the appeal, affirming the High Court’s order and the promotion.

Issues considered

Whether the Board's adoption of a "zone of consideration" and relaxation of criteria for promotion complied with the U.P. Jal Nigam Engineers Service Regulations.
Whether the High Court erred in directing that the respondent be considered under the 25% promotion quota.
Whether the selection of other candidates without the respondent violated the statutory requirement of merit and ability.

Subjects

service lawpromotionmeritseniorityquotaU.P. Jal Nigampublic service regulationsadministrative law

Judgment

A U.f'. JAL NIGAM AND ORS.
v.
NARINDER KUMAR AGARWAL

JANUARY 31, 1996

B (K. RAMASWAMY, S. SAGHIR AHMAD
AND G.B. PATTANAIK, JJ.]

Service Law :

C UP. Water Supply and Sewerage Act, 1975/U.P. Jal Nigam Engineers
(Public Health Branch) Se1vice Regulations, 1978:

S.97/Rules 5, 10, l!r-Promotion-Junior Engineer to Assistant En-
ginee1~Promotion in general 25% quota--5% graduates quota-Junior En-
gineer with degree qualification eligible to be considered-Not considered
D once-Next time considered but not selected-On a wlit petition, High Court
directing to consider his case in the 25% promotion quota-Consideretj and
promoted-On appeals, held: Jn view of resolution adopting cliteria of zone
of consideration and the enlployee concen1ed not conzing up in the zone of
consideration, it cannot be found fault with-In the next selection the Com-
E mittee proceeded on the premise of merit and ability and selected four
persons-No circumstance brought to Court's notice that the selected can-
didates did not possess supe1ior merit and ability than the employee not
selected-Hence their selection not beset with any illegality-Since that
employee has been considered and promoted subsequently on High Court's
order, no i11te1ference called for.
F '
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3344 of
1996.

From the Judgment and Order dated 17.1.92 of the Allahabad High
G Court in C. Misc. W.P. No. 14229 of 1984.
K.,.Madhava Reddy and Ms. Sandhya Goswami for the Appellants.

AK. Srivastava Adv. Genl., Rajesh K. Sharma for the Respondents.

H The following Order of the Court was delivered :
1120
'
'"
U.P.JAL NIGAM v. N.K. AGARWAL 1121

Delay Condoned. Leave granted. A

The appellant-U.P. Jal Nigam was formed under the U.P. Water
Supply and Sewerage Act, 1975. Consequentially, the persons working in
the Local Self-Government Engineering Department of U.P. were trans-
ferred to the appellant's administrative control. Jn exercise of power under
.' B
Section 97 of the Act, U.P. Jal Nigam Engineers (Public Health Branch)
Services Regulations, 1978 (for short, 'Regulations') were framed. Rule 5
of the Regulations envisaged that :

"5. Keeping into consideration rules 6, 17 and 18, recruitment from
(
the following sources : C

(1) Asstt. Engineer;

A. Direct recruitment on the basis of result of competitive ex-
amination or as prescribed in part 5 of the rules for recruitment.
D
But in case of emergency the Nigam can made recruitment on
the basis of intervie\V also.
\

Note : Initial recruitment to the post of Asstt. Engineer will be
made against only temporary vacancies.
E
(2) Junior Engineers and computers of the former Local Self-Govt.
Department and/or in the service of Jal Nigam by promotion of
those candidates who have rendered continuous service of ten
years in the former LSGD and/or U.P. Jal Nigam or any other
department. Temporary service will be counted for this purpose.
The candidates fulfilling these conditions and also fall within the F
ambit of Rule 16(3) will be considered.

Note : The details for recruitment to the post of Junior Engineer
and computer is given in condition 1. But recruitment will be done
in such a way that 25% of the vacancies are filed by promotion G
and the rest by direct recruitment. Any relaxation in this percent-
age will be permitted only when suitable candidates are not avail-
able.

Rule 10 prescribes that no person will be recruited direct in the civil
side unless he holds a degree in Civil Engineering or its equivalent from H
1122 SUPREME COURT REPORTS [1996] 1 S.C.R.

A recognised university or he has passed part A and B of AMIE. Clause B
thereof also provides that no person shall be recruited to the mechanical
side on similar conditions. The ratio for direct recruitment is 75% and for
promotces 25%; and while calculating the vacancies, the ratio of 25% for
promotees always be maintained. Rule 10(3) which is relevant for the
purpose envisages that Computers and Junior Engineers in the service of
B
former LSGD or Jal Nigam will not be promoted to the post of Asstt.
Engineering (Civil) or (Mechanical) under rules 5(1) (ka) (two) unless he
has passed the condition prescribed in Rule 10(1) and 10(2) of the Regula-
tions. The note appended thereto given liver for relaxation of conditions ~
of recruitment and can adopt any other criteria for the selection and
C promotion of Junior Engineers and Computers to the post of Assistant
Engineer. In other words, the note enabled them only to relax the rules
prescribed for passing the qualifying examination for selection to the posts
of Asstt. Engineers. At this juncture, we would observe that the rule runs +
contrary to the settled service jurisprudence and the law laid down by this
D Court and deleterious to augment efficacy of service and would dry out the
source to improve excellence and honest service. However, since note is
not the subject matter of attack, we need not observe any further. (

Rule 18 provides the right to promotion which emisages that "For
promotion to the post of executive engineer seniority will be the criteria
E and for promotion to the post of Asst!. Engineer, Superintending Engineer
and Chief Engineer, the merit will be the criteria". The Jal Nigam in
exercise of the power of relaxation under the note passed a resolution on
31.12.1983 that it is not appropriate to change the criteria every time and •
it is not necessary to change the basis on which selection has been made
previously. Therefore, the procedure was reiterated as under :
F
"The preceding five years annual confidential record of each can-
didate shall be perused. If there are more than half good entries
or entries higher than that then the candidate shall be considered
fit for selection."
G
According to the decision taken by the Jal Nigam in its 62nd
meeting, the condition of passing the qualifying examination for
candidates eligible upto 31.12.83 has been relaxed and instead the
condition of gradation on the basis of service records has been
H made the basis for promotion. In order to determine merit, the
\.

U.P.JALNJGAMv. N.KAGARWAL 1123

confidential entries of all the candidates falling within the zor.e of A
consideration be scrutinised even though their integrity has not
been certified. 11

18 vacancies of Assistant Engineers have arisen and the erst\vhile
officer from LSGD or those appointed under the Nigam have been con-
sidered for promotion for 25% quota reserved for insenice candidates. B
Under the resolution No. 502, dated 19.5.1983, it was resolved that 10
years continuous service either in the erstwhile department or under the
Nigam is a pre-condition of which 5 years in Nigam was necessary for
promotion. It was also resolve that 5% of 25% was reserved for graduate
Engineers who should complete 5 years of service in Jal Nigam. Following
the above criteria, the candidates were considered and selected. It would
c
appear that first selection on September 24, 1983 and the second selection
in August 1984 were made.

The respondent who was appointed as a Junior Engineer in LSGD
on April 12, 1973 had passed his BE degree qualifying examination on D
, November 3, 1982. He had put in 10 years of service as J.E. as on 13.4.1983.
Since he was a graduate and was eligible for promotion in general 25%
quota as well as the graduates quota of 5%, but does not appear to have
been considered on September 4, 1983 for selection. Against in the second
selection held in August, I 984 also he was considered but was not selected.
As a consequence, he filed the Writ Petition No. 14229/84. E
The Allahabad High Court by order dated 17.1.1982 allowed the Writ
Petition and directed to consider the case of the respondent in the 25%
quota reserved for promotecs for the relevant year. proceedings dated
' 20.2.1992 have been placed before us in which as per the directions of the
Court the appellant had considered his case, an additional post was created F
and he was promoted in 25% quota reserved for promotees as a special
case.

Shri K. Madhava Reddy, the learned senior counsel for the appellant,
contended that the note to the rule referred to hereinbefore gives power G
to the Board to relax the criteria; the Board having relaxed the criteria
) considered all the persons including 54 persons who are eligible according
to the norm laid down; the respondent was not considered since he did not
come up within the zone of consideration. It is also contended that out of
5% quota reserved for the graduates, 17 candidates including the respon-
dent on Serial No. 13 were considered. Since the criteria being merit and H
1124 SUPREME COURT REPORTS [1996] 1 S.C.R.

A ability, the more meritorious were promoted and the respondent, therefore,
could not be selected. The High Court had proceeded on a wrong premise,
namely, the respondent was not considered within 25% quota and he was
alone the graduate elib>ible but was not considered for promotion. It is
stated that in view of the fact that 17 candidates, who are graduates, were
considered and merit and ability being the criteria, the premise on which
B the High Court proceeded is, therefore, not valid in law.

Shri A.K. Srivastava, the learned Advocate General of Sikkim ap-
pearing for the respondent, contended that the respondent having duly
qualified for promotion in April 1983 by which date the criteria of relaxa-
C tion was not made, ought to have considered but was not considered
according to the rules. Even in August 84 selection also he was not
considered as he was fully qualified to be considered. Therefore, the High
Court was right in granting the direction and, therefore, th«re is no merit
in the case of the appellants.

D
It would appear that the appellant with a view to see that all eligible
persons would come within the zone of consideration for promotion
adopted a general rule of relaxation and considered the cases of all the
persons. But from the resolution, we are unhappy to note that even merit
or integrity have been sacrificed as mentioned that they are not relevant
E for consideration. It is settled law that merit and integrity are the sole
consideration for selecting posts and seniority would become relevant only
when merit of all candidates are approximately equal. The Board seems to
have taken a reverse gear, obviously to facilitate persons who are not having
that much of integrity and ability. However, since the promotion given to
F the persons has not been put in issue, we need not express any doubt on
their selection but we are unhappy to note the way in which the Jal Nigam
is functioning in con:"idering the promotion of the officers to improve
excellence or to inculcate efficiency, integrity and honesty in the officers to
reach higher echolons of service.

G It is seen that since the criteria of zone of consideration was adopted
as per the resolution and 54 persons were considered and the respondent (
did not come up in the zone of consideration, we cannot find fault with the
non-consideration of the respondent in that zone of consideration of 54
candidates. In the quota of 5% reserved for graduates, though the respon-
H dent has fulfilled the qualification and was eligible to be considered, he
U.P.JALNIGAMv. N.K.AGARWAL 1125

was included in the panel of the candidates, the selection was made by the A
committee constituted in that behalf. The committee appears to have
proceeded on the premise of merit and ability and evaluated the criteria
of all the 17 candidates and selected four candidates who were standing at
No. 1, 2, 6 and 8. In the absence of any compelling circumstances brought
to our notice to show that the selected candidates are not possessed of B
superior merit and ability than that of the respondent, we do not think that
the selection is beset with any illegality. However, in view of the circumstan-
ces that pursuant to the direction given by the High Court, the claim of the
• respondent had already been considered and he has been promoted, we
f
do not incline to interfere with the order of the High Court.

The appeal is accordingly dismissed with the above declaration of
c
law and observations. No costs.

G.N. Appeal dismissed.

\