# Alok Kumar Singh v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-20
- **Case number:** Writ-A No. 3785 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-kumar-singh-v-state-of-u-p-ors-50848
- **Pages:** 16

## Headnote

A. Service Law - Engineering Services
Rules, 1990 - UP Service of (Irrigation
Department) (Group-A) Rules, 1990 -
Rule 5(1) - Relaxation Rules, 2006 - Rule
4 - Promotion - Promotional benefit -
Entitlement - Not including the probation
period in requisite period of 7 years as
experience - Permissibility - Held, period
of probation is liable to be included within
7 years service period required under the
Rule for a candidate to possess requisite
period
of
service
for
promotion
-
1 All. Alok Kumar Singh Vs. State of U.P. & Ors.
1181
Petitioner
is
entitled
to
promotional
benefits. (Para 34 and 36)

B. Interpretation of statute - Golden
Rule - Meaning - Something cannot be
added to give extended meaning to the
Rules which otherwise Rules do not
mean by taking to the plane language
and simple words, they are couched in.
(Para 25)

Writ petition allowed. (E-1)

List of cases cited:

## Text

_Characters 0–39,542 of 53,549. This is a partial read: ask again with offset=39542 for what follows._

1180 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrariness and the capricious exercise of
authority, mandating that decisions be
reached
only
subsequent
to
a
comprehensive and equitable deliberation
of all relevant contentions. It is, in essence,
the sine qua non of due process, standing as
an unwavering sentinel against the potential
tyranny of unchecked power. The judicious
application of audi alteram partem not only
upholds the sanctity of individual freedom
but also fortifies the integrity of legal
proceedings, fostering a milieu where
justice is not merely meted out, but is
perceived
to
be
done
through
a
conscientious consideration of diverse and
adversarial perspectives.

12. In the present case, when the
petitioner had cancelled its registration in
the year 2019, a proper notice was required
to be issued to it under Section 74 of the
Act at its address. However, the authorities
simply uploaded the Section 74 show cause
notice on the web portal inspite of knowing
that the petitioner had already cancelled its
registration prior to the date of issuance of
the show cause notice. This action clearly
prevented the petitioner from appearing in
the hearing in the original proceeding under
Section 74 of the Act that was accordingly
passed
ex
parte.
Moreover,
it
was
incumbent upon the authorities to provide
the copies of materials being relied upon
by them (SIB report, in this case) to the
petitioner/assessee so as to enable him to
deal with the same. In my view, any action
that proceeds without proper intimation and
service of the show cause notice to the
petitioner is vitiated and bad in law, and is,
accordingly required to be quashed and set
aside.

13. In light of the above, the
impugned orders dated September 14, 2021
and October 5, 2023 are quashed and set
aside with a direction upon respondent
No.3 to grant an opportunity of hearing to
the petitioner on January 30, 2024 at 11.00
AM, and after hearing the petitioner, pass a
reasoned order within two weeks from the
date of hearing. It is expected that no
unnecessary adjournments shall be granted
by the authority concerned. The authority is
also directed to provide a copy of the SIB
report to the petitioner within a week from
date.

14. With the above directions, the writ
petition is allowed.
----------
(2024) 1 ILRA 1180
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 3785 of 2023

Alok Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vipul Raj Gautam, Sri Kunal Shah, Sri
Suvansit Kumar Jaiswal

Counsel for the Respondents:
C.S.C.

A. Service Law - Engineering Services
Rules, 1990 - UP Service of (Irrigation
Department) (Group-A) Rules, 1990 -
Rule 5(1) - Relaxation Rules, 2006 - Rule
4 - Promotion - Promotional benefit -
Entitlement - Not including the probation
period in requisite period of 7 years as
experience - Permissibility - Held, period
of probation is liable to be included within
7 years service period required under the
Rule for a candidate to possess requisite
period
of
service
for
promotion
-
1 All. Alok Kumar Singh Vs. State of U.P. & Ors.
1181
Petitioner
is
entitled
to
promotional
benefits. (Para 34 and 36)

B. Interpretation of statute - Golden
Rule - Meaning - Something cannot be
added to give extended meaning to the
Rules which otherwise Rules do not
mean by taking to the plane language
and simple words, they are couched in.
(Para 25)

Writ petition allowed. (E-1)

List of cases cited:

1. Sanjeev Kumar & ors. Vs St. of U.P. & ors.;
2018 (4) ADJ 366

2. Lal Pratap Singh Vs St. of U.P. & ors.; 2009
(3) AWC 2321

3. U.O.I.& ors. Vs K.B. Rajoria; 2000 (85) FLR
714

4. Hanumantha Reddy Vs U.O.I. & ors.; 1985
SCC Online AP 198

5. NCT of Delhi & ors. Vs Shri Rakesh Beniwal &
ors.; 2014 SCC Online Del 3944

6. Civil Appeal No. 6868 of 2021; St. of U.P. Vs
Vikas Kumar Singh decided on 22.11.2021

7. U.O.I.& ors. Vs K.B. Rajoria; 2000 (85) FLR
714

8. G. Hanumantha Reddy Vs U.O.I.& ors.; 1985
SCC Online AP, 198

9. NCT of Delhi & ors. Vs Rakesh Beniwal &
ors.; (2014) 213 DLT 748

10. Pitta Sitaram Patrudu Vs U.O.I.; (1996) 8
SCC 637

11. Sanjeev Kumar Vs St. of U.P. & ors.; 2018
(4) ADJ 366

12. Commissioner, Karnataka Housing Board Vs
C. Muddaiah; (2007) 7SCC 689

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Kunal Shah, learned
counsel for the petitioner and learned
Additional Chief Standing Counsel.

2. Petitioner, who is currently holding
the post of Assistant Engineer (Civil) in the
Department
of
Irrigation
and
Water
Resources Uttar Pradesh, Lucknow is
aggrieved by the order dated 12.09.2022,
impugned herein this petition for denying
his claim for promotion as Executive
Engineer on the ground that he did not
fulfill the eligibility criteria of having
minimum period of service to his credit as
Assistant Engineer as required under the
Uttar Pradesh Government Servants (Group
A), Rules, 1990 (hereinafter referred to as
"Rules 1990").

3. According to the petitioners, the
feeding cadre for the post of Executive
Engineer (Civil) in the department is the
cadre of Assistant Engineer (Civil) and as
per the rules criterion for promotion is
seniority subject to rejection of unfit.
Petitioner's case is that he otherwise stands
above the 5th respondent, Mr. Utkarsh
Bharadwaj in the seniority list of Assistant
Engineer (Civil) by virtue of the order
passed in his case determining the seniority
on 8th of January, 2018 placing him in
between Shri Sudhir Kumar Pal at serial
No. 415 and Utakarsh Bharadwaj at Serial
No. 416 by listing his name at serial no.
415 (A). This order has never been assailed
against.

4. In order to appreciate the
controversy involved in the present case
vis-a-vis the claim of the petitioner, which
according to him should have been
accorded
preference
over
and
above
impleaded respondents in the writ petition,
it is necessary to draw facts in a narrow
compass.
1182 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Petitioner was applicant for the
post of Assistant Engineer (Civil) pursuant
to the advertisement issued by the Public
Service
Commission,
Uttar
Pradesh.
Advertisement was issued wayback in the
year 2004 but selection process became a
long drawn process and result was
ultimately declared on 10th of March,
2011. The petitioner successfully made it to
the merit list, however, he could not be
offered
appointment
because
of
not
furnishing of No Objection Certificate
(NOC) of his earlier employer, namely, the
U.P. Public Works Department, where he
was working. Petitioner's earlier NOC ran
out of his life because of the delayed
selection process in the Public Service
Commission. Accordingly, he applied for
fresh NOC and this fact he intimated to the
Public Service Commission. Since, the
petitioner had been reverted in the
meantime while working in U.P. Public
Works Department, some more technicality
arose in issuance of the NOC by particular
section and ultimately that was issued only
on 27th January, 2012, which the petitioner
submitted
before
the
Public
Service
Commission on 30th January, 2012. The
petitioner was not issued any appointment
order and accordingly when he enquired
under the Right to Information Act, 2005,
he was replied that his candidature has been
cancelled. Consequently petitioner filed
writ petition before this Court being C.W.P.
No. 51969 of 2012, which was allowed by
the Division Bench under its judgment and
order dated 12.08.2014. The Commission
ultimately forwarded the name of the
petitioner for appointment on the post of
Assistant Engineer (Civil) on 09.10.2014
and the State Government appointed
petitioner by issuing an appointment order
on 18.09.2015. However, on account of
critical illness of his father, who was
diagnosed of cancer and who had to
undergo surgery at TATA Memorial
Hospital, Mumbai, petitioner could not
submit his joining and requested the State
Government to extend the period and
government extended vide notification
dated 05.01.2016. Petitioner ultimately
joined on the post of Assistant Engineer
(Civil) on 04.02.2016.

6. In the background of above facts
there arose question of seniority of the
petitioner, which according to him was to
be determined as per the U.P. Services of
Engineer, Irrigation Department (Group B)
Service Rules 2007 ( Rule 21 of Rules
2007) read with Rule 5 of UP Government
Service Seniority Rules 1991. Petitioner's
seniority was to be determined as per the
select/ merit list prepared by the Public
Service
Commission.
Accordingly,
petitioner pleaded for his placement in the
seniority at appropriate stage in the light of
the relevant service rules as well as various
authorities, which was relied upon by him.
A tentative seniority list was prepared and
circulated by the State Government on
27.12.2016 placing the petitioner at Serial
No. 415 (A) just above the 5th respondent.
The objections were invited to the tentative
seniority list so published but no objection
was filed and the State Government
finalized it under its order dated 8th
January, 2018 placing the petitioner at
Serial No. 415 (A) just above the 5th
respondent.

7. In the meanwhile, Departmental
Promotion Committee was convened on
29.12.2017 for considering promotion of
Assistant Engineer (Civil) to the post of
Executive Engineer (Civil). While, the
criterion for promotion was seniority
subject to rejection of unfit by taking aid to
Uttar Pradesh in Government Servants
qualifying service promotion of Rules 2006
1 All. Alok Kumar Singh Vs. State of U.P. & Ors.
1183
which came to be further amended on 24th
of April, 2013. As per the amended
relaxation Rules, in the eligibility criterion
of seven years of experience 50 percent
relaxation would be granted by the
Government through its Administrative
Department
in
consultation
with
the
personnel Department excluding the period
of probation as may be laid down for the
said post. However, a proviso was also
added to the Rule 4, which by Clause 8 (1)
provided
for
discretion
with
the
administrative department for providing
further relaxation beyond 50 percent in the
minimum length of service prescribed for
lower post if it finds any justification for
the same. Accordingly, all those who were
being considered for promotion in the year
2017, including respondent Nos. 5 to 15
were granted relaxation as they did not
complete requisite service period of 7 years
for promotion from the post of Assistant
Engineer (Civil) to Executive Engineer
(Civil). Since, the petitioners claim was
pending consideration for seniority, he
could not be given any benefit by the
Departmental Promotion Committee. Soon
after his seniority was determined placing
him above the 5th respondent, who was
promoted on 29th December, 2017 placing
him at Serial No. 4 out of total list of eighty
eight
number
of
promoted
Assistant
Engineers, petitioner raised his grievance
before the Department. The basic plea
taken was that he having been placed in the
seniority list above the 5th respondent, he
would be taken to have been there in the
cadre ever since, the 5th respondent was
there and so he would be taken to have a
total length of service from that date only,
and thus was eligible for relaxation like 5th
respondent.

8. The other plea taken was that the
petitioner was made to join on account of
not for his fault but for the fault of
Government and the Public Services
Commission and that he had to undergo a
litigation before Court of Law which
ultimately resulted in granting his writ
petition and the respondents made him to
join only on 04.02.2016. He submits that
his claim immediately after his placement
in seniority list under State Government
order
dated
8th
January,
2019,
he
completed his probation period in service
by 3rd February, 2018, and therefore,
giving advantage of the proviso to Rule 4
in the special facts and circumstances of
case, he should have been given promotion.
However,
the
State-Government
has
rejected the claim of the petitioner under
the order impugned on the ground that
since at the time of consideration of
promotion of junior to the petitioner,
petitioner was not meeting the eligibility
criterion, he could not be offered promotion
from the date his junior, the 5th respondent
and
other
juniors
who
were
given
promotion on 29th December, 2017. The
authorities took the view that even if 50
percent of the relaxation was accorded to
the petitioner insofar as the total requisite
period of working of 7 years as Assistant
Engineer as required under the rules, it
would have come to only 3 years and 6
months and since the petitioner had been on
probation for 2 years, he could not be taken
to have completed his probation period
which was of 2 years, as a candidate
aspiring for promotion is required to have
requisite experience of 7 years on the first
day of July of the recruitment year. So if
the recruitment year is taken to be 2017-18
as on Ist July, 2017, 50 percent relaxation
would be as on that date provided the
probation period is excluded. Petitioner
having completed probation period only in
February, 2018, it was out of question to
consider his candidature for promotion in
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
the year 2017-18. In a nutshell, the reason
assigned is that even if relaxation is
accorded as per the Rule 4, i.e. 3 years and
6 months on Ist July, 2017, petitioners
probation period being still on, he would
not have fulfilled the criterion.

9. Sri Kunal Shah, learned Advocate
appearing for the petitioner has raised two
fold arguments for assailing the order
impugned in this writ petition: Firstly;
once the petitioner was placed in the
seniority list, he would be taken to be there
in service as Assistant Engineer with all
consequential benefits and the requisite
period of 7 years would count from the date
his junior was placed in the seniority.
Service period is to be reckoned with his
junior placed in the seniority list below
him, namely, the 5th respondent and taking
that so, as on Ist July, 2017, petitioner
would have already 3 and half years to his
credit in service. Shri Shah submits that
relevant Rule 1990 having been subject
matter of interpretation by a Division
Bench at Lucknow Bench of this Court in
the case of Sanjeev Kumar and others
Vs. State of U.P. and others 2018 (4) ADJ
366, wherein it was held that the period
should
be
taken
into
consideration
notionally as required towards 7 years of
service without any experience. Shri Kunal
Shah has also relied upon a decision of a
coordinate Bench of this Court in the case
of Lal Pratap Singh Vs. State of U.P. and
others 2009 (3) AWC 2321 wherein the
Court held that qualifying service would
not mean actual physical service. The Court
had relied upon the Supreme Court
judgment in the case of Union of India
and others Vs. K.B. Rajoria 2000 (85)
FLR 714. Shri Shah has also relied upon
Division Bench judgment of of Andhra
Pradesh High Court Hanumantha Reddy v.
U.O.I. and Others High Court in 1985 SCC
Online AP 198 where the difference had
been made between actual service and
continuous service and where the rules
provide for continuous service then the
notional service could be taken into
account for the purposes of requisite period
of service. Shri Shah has also relied upon a
Division Bench judgment of the Delhi High
Court in Government of NCT of Delhi and
Others v. Shri Rakesh Beniwal and
Others, 2014 SCC Online Del 3944
wherein, the Court permitted 7 years
service to be counted for the purposes of
qualifying period, if the candidates were
restrained by any act of the State
Government from giving them joining;
Secondly, argument of Mr. Kunal Shah,
learned counsel for the petitioner is that the
petitioner ought to have been granted
benefit of the proviso to Rule 4 in the
special facts and circumstances of the case
as the petitioner was made to join
subsequently after litigating the matter and
then he had to fight for placement in the
seniority list. Shri Kunal Shah has relied
upon judgment of the Supreme Court in the
case of State of U.P. v. Vikas Kumar,
Civil Appeal No. 6868 of 2021, Singh
decided on 22nd November, 2021 where
Relaxation Rules 2006 were taken into
consideration.

10.

Additional
Chief
Standing
Counsel has sought to defnd the order for
the
reasoned
assigned
therein
and
submitted that any relaxation would be
counted only if an employee has already
completed the probation period as an
employee still under probation cannot be
posted and petitioner being on probation in
the relevant year 2016-17, his candidature
was rightly not considered.

11. Having heard learned counsel for
the respective parties and having perused
1 All. Alok Kumar Singh Vs. State of U.P. & Ors.
1185
the records and looking to the bare
undisputed facts relating to appointment,
joining and seniority accorded to the
petitioner by the respondents themselves, it
is absolutely clear that petitioner's notional
seniority and as such service has been
counted from the date one Mr. Utkarsh
Bhardwaj, next junior to the petitioner has
been given appointment and jointing. The
order passed by the competent authority in
the matter, namely, Principal Secretary,
Irrigation
Department
and
Water
Resources, Government of U.P. dated 08th
January, 2018 has remained unchallenged,
and therefore, remained undisputed. The
then Principal Secretary, Mr. Suresh
Chandra vide paragraph 5 of the order in a
quite
unequivocal
terms
placed
the
petitioner above Mr. Utkarsh Bhardwaj and
below Mr. Sudhir Kumar Pal assigning
serial no. 415-A. The relevant paragraph 5
is reproduced hereunder:

"अतः उपयुाि के दृनष्ट्गत एतद्द्वािा
श्र आलोक कुमाि नसींह, सहायक अनभयन्ता क
ज्येष्ठता कायाालय-ज्ञाप सीं०- 599/सिाईस-12014-91/10 ि स , नदिाींक 04 माचा, 2014 द्वािा
प्रख्यानपत अक्तन्तम ज्येष्ठता सूच में क्रमाींक-415
पि प्रनतथथानपत श्र सुर् ि कुमाि पाल एवीं
क्रमाींक-416 पि प्रनतथथानपत श्र उत्कर्ा भािद्वाज
के मध्य क्रमाींक-415(ए) पि अक्तन्तम रूप से
प्रख्यानपत क जात है।"

12. The State respondents proceeded
to consider promotion of petitioner's batch,
Assistant Engineer to the post of Executive
Engineer in the recruitment year 20172018.

13. The Engineering Services Rules,
1990 of the Irrigation department provide
for two years period as probation and the
rule 5(1) after fifth amendment to the Rules
of 1990 provide that post of Executive
Engineer, Civil or Mechanical be filled up
by promotion from amongst substantively
appointed Assistant Engineers, who have
completed 7 years of service on the first
day of the year of recruitment. Rule 5(1) of
the U.P. Service of (Irrigation Department)
(Group-A) Rules, 1990 are reproduced
hereunder:

" Executive Engineer, Civil or
Mechanical- By promotion from amongst
substantively appointed Assistant Engineers
in the Civil or Mechanical Branch, as the
case may be, who have completed seven
years service on the first day of the year
recruitment. "

14. From a bare reading of the
aforesaid Rules , it is very much clear that a
candidate who seeks promotion from the
post of Assistant Engineer to Executive
Engineer, Civil, is required to possess "7
years service" in substantive capacity,
which obviously would be including two
years period of probation.

15. Yet another provision relevant
here to be examined is of U.P. Government
Servants Relaxation in qualifying Service
for promotion (1st amendment) Rules,
2013, which permit the Government/
authority to provide relaxation in service
period of 7 years. This amendment is
relating to in U.P. Government Servant
Relaxation
in
qualifying
service
for
promotion Rules, 2006.

16. By virtue of amendment brought
in the year 2013 the existing Rule 4 has
been substituted by new Rule 4 and new
Rule 4 runs as under:

"Column-2-

(4). In case of post is filled by
promotion and for such promotion a certain
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
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 upto fifty percent by
the Government in the Administrative
Department
in
consultation
with
the
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 : Provided that

(I) 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
constitute as followed:

(I) Chief Secretary..... Chairman

(ii) Principal Secretary/Secretary

Personnel
Department.........
Member

(iii)
Principal
Secretary/Secretary to the Government in
the concerned Administrative Department.

(II) and, the recommendation
made
by
the
Committee
after
due
consideration, shall be communicated to
the concerned Administrative Department
through the Personnel Department and,
thereafter, the minimum length of service
prescribed on the lower post or posts, as
the case may be, for promotion may be
relaxed in accordance with the aforesaid
recommendation
by
the
concerned
Administrative Department:

Provided further that provisions
regarding relaxation in qualifying service
for
promotion
incorporated
by
an
amendment in the relevant service rules on
or after May 01,2012 shall, from the date
of commencement of such amendment, be
deemed
to
have
been
omitted
but,
notwithstanding
such
omission,
the
promotions made in accordance with such
amended service rules on or after May
01,2012
and prior
to
the date
of
commencement of the Uttar Pradesh
Government
Servants
Relaxation
in
Qualifying Service for Promotion (First
Amendment) Rules, 2013 shall remain
unaffected."

17. Upon reading of the aforesaid
Rules, it is very much clear that relaxation
is to be granted in the first instance of 50
percent and in the special circumstance,
further beyond 50 percent by administrative
department.

18. It appears that respondents
proceeded to consider the promotion of the
Assistant Engineers of the petitioner's batch
to the post of Executive Engineer in the
relevant
Recruitment
year
2017-18.
Obviously, since these appointees were of
the year 2011-12, they had not completed
requisite period of 7 years service and so
taking aid of Relaxation Rules, 2006
(amended in the year 2013) 50 percent
relaxation in 7 years came to be 3 and half
years of the Assistant Engineers was
accorded to all those who belonged to the
batch of the petitioners and thus they came
to be promoted having requisite service
period of 3 and half years to their credit
excluding period of probation undergone
by them. Petitioner's candidature be not
1 All. Alok Kumar Singh Vs. State of U.P. & Ors.
1187
accorded any consideration for the reason
that petitioner had joined the service only
on 4.2.2016 and he was still on probation
despite there being post available to
accommodate the petitioner.

19. Aggrieved by the decision of the
respondents
in
not
considering
his
candidature for promotion, the petitioner
represented matter on 11.4.2022 and then
he filed writ petition before this Court
being Writ A No. 11320 of 2022, which
was disposed of on 23rd August, 2022 with
direction to the respondent no. 2 to
consider and decide the representation of
the petitioner in accordance with law
within three weeks from the date of
submission of certified copy of the order.
The petitioner approached the authority
accordingly to consider his claim and
decide the same within time period as
prescribed by the High Court by writing a
letter on 29th August, 2022 and respondent
Principal Secretary while deciding the
representation of the petitioner rejected his
claim for promotion basically on twin
grounds: (a) as per Rule, 1990, the
candidate must have completed 7 years of
service of the first day of the year of
recruitment, which the petitioner did not
fulfil; and (b). petitioner having joined in
the year 2016 did not have requisite period
of service even after 50 percent of the
relaxation was accorded and besides above,
the ground is that petitioner was still on
probation.

20. What has been argued before this
Court and discussed above on facts, the
first
point
that
emerges
out
for
consideration of this Court is, as to whether
the period of 7 years of service in a
substantive capacity would mean actual
service alone or would be including
notional service period and so also
probation period so as to make petitioner
entitled or dis-entitled to promotion even
after 50 percent of relaxation; and the
second point that arises for consideration
is, as to whether in the given and
circumstance of this case, were special
enough to make petitioner entitle to further
relaxation as per first proviso to Rule 4 of
the Relaxation Rules, 2006.

21. As quoted hereinabove, Rule
while provide for service period as 7 years
service, the words and expression "7 years
of service" has not been conditioned by any
word like actual or experience, so meaning
thereby one has to have total number of 7
years of service notional or actual to his
credit on the first day of year of
recruitment. Whenever Rules provide for
particularly years of service or say number
of years of service in other words and do
not clarify it by any word or expression
actual or experience, in my considered
view, such expression would include
notional service period as well.

22. A Coordinate bench of this Court
in Lal Pratap Singh (supra) quoted a very
celebrated judgment on the point, namely,
Union of India and Others v. K.B.
Rajoria, 2000 (85) FLR 714, wherein the
Court interpreted the word regular service
would not mean actual service. Qualifying
the service period by any expression of
actual or physical service has been held to
be highly misplaced interpretation. Vide
paragraph 19, learned Judge has held thus:

"19. Though in slightly different
context, but in Union of India & others Vs.
K.B. Rajoria 2000 (85) FLR 714 the
question came up for consideration as to
what "regular service" in the grade would
mean and whether it would cover notional
promotion or not and in that context, the
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court held that by giving notional
promotion with retrospective effect to the
concerned incumbent in that case it would
mean that he was regularly appointed to
the post on that date. It also held that the
word "regular" does not mean actual and
for the said purpose, it referred to the
definition of "regular" in Concise Oxford
Dictionary, Ninth Edition, which reads as
under :

"(1) conforming to a rule or
principle, systematic; (2) harmonious,
symmetrical; habitual, constant, orderly;
(4) conforming to a standard of etiquette or
procedure,
correct,
according
to
convention; (5) properly constituted or
qualified,
not
defective
or
amateur,
pursuing an occupation as one's main
pursuit."

Here also for the purpose of
pension, it is only the qualifying service,
which is contemplated under Regulation
468 of CSR and not the actual physical
service. The interpretation given to office
memorandum referred to in para-15 in
K.B. Rajoria (supra) by the Apex Court, in
my view, would apply with full vigour in the
present case also though that was a case of
Central Government. Here also reading the
words "qualifying service" as "actual
physical service" is wholly misplaced
having no basis and it also overlooks the
effect and concept of "notional promotion"
and the benefit ensued therefrom to the
concerned employee. Any other view
amounts to taking a benefit given by one
hand to the employee by another hand,
which is neither just nor in accordance
with well known principle of service
jurisprudence that no person, who is
otherwise entitled to a relief, should be
denied the same though the denial is not
substantiated by any condition of service or
statutory provision applicable to such
employee. "

23. A bench presided over by Hon'ble
the then Chief Justice of Andhra Pradesh
High Court had the occasion to interpret the
words
and
expression,
"continuous
service of 8 years" and that Court in that
case of G. Hanumantha Reddy v. Union
of India and Others, 1985 SCC Online
AP, 198 held that when the Rules provide
for actual or continuous service, it may
though be taken as an actual service but
in particular facts and circumstances, it
can be taken to include notional service
also.
The
Court
disapproved
the
reasoning of learned Single Judge who
held that eight years of continuous
service would mean only completion of
actual service. Learned Single Judge in
the said case had held concept of notional
period of service absolutely irrelevant for
counting
period
of
service.
Vide
paragraph 6 the learned Single Judge had
held thus:

" The words "completed not less
than 8 years of proviso to Regulation 5(2)
(SIC)" means completion of actual
service. Continuity of service which is
contemplated in this Rule sic actual
service. A deemed promotion or a
notional date of seniority in the State
Forest Service from a date earlier than
that from which he actually officiated in
the post cannot be considered to have
officiated in the post during the period
from the notional date to the date of
commencement of officiating the service
in that post. The seniority given by virtue
of such a notional date is not relevant for
purpose of determining the eligibility for
inclusion in the list of I.A.S. officers to be
prepare under the second proviso to subregulation (2) of Regulation 5(SIC)"
1 All. Alok Kumar Singh Vs. State of U.P. & Ors.
1189

24. Overriding the above, the
Division Bench vide paragraphs 7 and 8
held thus:

7. With due respect we are unable
to agree with the reasoning adopted by the
learned Judge. It is admitted on all hands
that the petitioner was entitled to have his
seniority in the post of Deputy Collector
reckoned from 16-9-1949. If the orders
were passed in time, as the Government
ought to have normally done, the petitioner
who had been confirmed in the rank of
Deputy Collector with effect from 1-111956 by G.O.Ms. No. 1125 dated 10-91979 would have been in terms of clause
(1) of Rule 4, eligible for being considered
for inclusion in the panel for the year 1958,
on his completing 8 years as on 15-9-1957.
The belated recognition of and giving effect
to the legitimate rights of the petitioner,
that too as a result of the relentless fight he
had to carry on, should not operate to his
prejudice in the matter of consideration for
promotion, as the petitioner was in no way
responsible for the delay. Justice has been
delayed to him; but let it not be denied to
him completely. Rules and Regulations, in
our view, are intended to advance, not to
frustrate the cause of justice. Merely on the
ground that there is no positive direction in
the rule to the selection committee to
reckon notional seniority, in the absence of
any prohibition in the rules against
notional seniority being taken into account
for the purpose of eligibility for being
considered for inclusion in the panel, if the
committee refuses to include the period
covered
by
the
notional
seniority,
restricting it to actual service in the post of
Deputy Collector or its equivalent post, it
would amount to perpetuation of injustice.
It is to be also noticed that the rule also
does not speak about the 'actual service'. It
speaks only about 'continuous service',
which could normally mean actual service,
but in peculiar circumstances it could
include notional service also. We must
remember that the conferment of notional
seniority on the writ petitioner was not a
gratuitous act, but something due in
recognition of his legal right. Undisputedly
the petitioner would have been considered
for inclusion in the 1958 list had this
recognition come in time. Because of the
delay in according this recognition, to
which petitioner made no contribution, the
writ
petitioner
had
suffered
enough
throughout the time he was in service; and
it would be only a token of what he
deserved if now he is treated to have been
eligible for being considered for inclusion
in the 1958 list on the basis of his notional
seniority, which might result in his
entitlement for some arrears of salary and
pensionary benefit on notional promotions
and refixation of scales of pay. Why should
the Court lend its support to deny even that
to the writ petitioner?

8. In this connection, it has to be
borne in mind that no special provision for
reckoning
notional
seniority
for
the
purpose of eligibility for inclusion in the
list for appointment to the I.A.S. cadre
could have been made in the rules. The
rule-makers could not have possibly
anticipated a situation like this, where it
took decades to confer on the person
concerned his due seniority for no fault of
his. Such situation might be few and far
between.
An
interpretation
to
meet
ordinary situation would not meet the
extraordinary situation. Ends of justice
require that the petitioner who had been all
through his career subjected to injustice
should not be denied at least the monetary
benefits, if any, to which he would be
entitled, if his claims are considered
properly. Once his seniority is legally re-
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
fixed, he would naturally be entitled to
receive all the benefits flowing from the
seniority so fixed from that date. The
denial of that right would be adding
premium to lethargy and callousness on
the part of the authorities who had been
instrumental in denying justice to the writ
petitioner all these years.

25. No doubt the golden rule of
interpretation is that something cannot be
added to give extended meaning to the
Rules which otherwise Rules do not mean
by taking to the plane language and
simple words , they are couched in.

26. In the case of Government of
NCT of Delhi and Others v. Rakesh
Beniwal and Others, (2014) 213 DLT
748, the Delhi High Court considered this
aspect of the matter by framing two
important questions thus:

"10. The dispute herein requires
resolution of two important questions:

(a) Whether applicants who are
deprived of joining service are entitled to
be considered for promotion on the date
which their immediate juniors were
promoted and;

(b) Whether as a consequence,
the respondent/applicants are entitled for
all consequential benefits and arrears of
pay for the period that they were
deprived of being in service at the requisite
position in the organisational hierarchy.
Point No (a)"

27. In order to answer the question,
the Court found it to be apt to refer to the
authority of Supreme Court in the case of
Pitta Sitaram Patrudu v. Union of India
(1996) 8 SCC 637 and finally answered
the points vide paragraphs 24,25 and 26
thus:

24. Whilst the law dictates that
salary is to be paid for work done, a
parallel cannot be drawn from the
principle of "no work, no pay"to apply to
the circumstances of the present dispute.
The
Tribunal
appreciated
that
the
applicants should not suffer at the cost of
bureaucratic delays of the GNCTD and its
litigative
proclivities.The
respondents
herein were appointed many years after
their
other
batch
mates
had
been
appointed. The maxim commodum ex
injuriasuanemohaberedebeti.e. no person
ought to take advantage from his own
wrong applies squarely to the petitioners
here. The Supreme Court in Kusheshwar
Prasad Singh v. State of Bihar & Ors.
(2007) 11 SCC 447 held, "13. it is settled
principle of law that a man cannot be
permitted to take undue and unfair
advantage of his own wrong to gain
favourable interpretation of law. It is sound
principle that he who prevents a thing from
being done shall not avail himself of the
non-performance he has occasioned. To
put it differently, 'a wrong doer ought not
to be permitted to make a profit out of his
own wrong'."

25.
The
maxim
has
been
interpreted by the Apex Court in Mrutunjay
Pani & Anr. v. Narmada Bala Sasmal &
Anr. [1962] 1 SCR 290 wherein it was held
that where an obligation is cast on a party
and he commits a breach of such
obligation, he cannot be permitted to take
advantage of such situation. Further in
Union of W.P.(C) 7423/2013 Page 16 India
& Ors. v. Major General Madan Lal Yadav
(Retd.) [1996] 3 SCR 785 it was observed,
"In Broom's Legal Maxims (10th Edn.) p.
191 wherein it was stated;
1 All. Alok Kumar Singh Vs. State of U.P. & Ors.
1191

...it is a maxim of law, recognised
and established, that no man shall take
advantage of his own wrong; and this
maxim, which is based on elementary
principles, is fully recognised in Courts of
law and of equity, and, indeed, admits of
illustration from every branch of legal
procedure."

26. The delay in appointment
and the consequential denial of benefits is
the direct corollary of the inaction of the
petitioners; consequently, they cannot take
advantage of their own delays in declaring
results and issuing appointment letters to
deny promotion to the respondents. The
Supreme Court has observed in this
regard in the matter of Baij Nath Sharma
v. Hon'ble Rajasthan High Court at
Jodhpur,1988 SCC (L&S) 1754, "But here
the appellant has been deprived of his
promotion without any fault of his. High
Court said that it might be sad state of
affairs that the name of the appellant was
not considered for promotion till he
retired. High Court may feel anguish but it
gives no comfort to the appellant. At least
for future such an unfortunate thing
should not happen to any other officer
similarly situated. This malaise which
abysmally afflicts any service when there
is recruitment from different sources when
there is recruitment from different sources
crops up in the one form or the other with
great disadvantage of one or the other.
But then service is not constituted merely
for the benefit of the officers in the service
but with a certain purpose in view and in
the present case for dispensing justice to
the public at large."

[emphasis added]"

28. The division bench upheld the
order of the Tribunal that had allowed the
OA holding appointees who were made to
join later, to be entitled to be offered
promotion at par with juniors.

29. Here, I am reminded also of a recent
judgment of Lucknow Bench of this Court in
the case of Sanjeev Kumar v. State of U.P.
and Others, 2018 (4) ADJ 366, wherein the
Court was dealing with same rules but in
respect of post of Executive Engineer,
'Mechanical'. The Court cited the Rule vide
paragraph 21 and framed core question for
consideration vide paragraph 23 thus:

"23. Therefore, the core question
for consideration in the present writ petition
is, whether the petitioners were entitled to be
considered for relaxation for qualifying
service for promotion under Relaxation Rules
2006 or not. Relevant Rule 4 was amended by
U.P. Government Servants Relaxation in
qualifying Service for Promotion (First
Amendment)
Rules,
2013,
which
is
reproduced as under:

"4.