# Ashok Kumar Srivastava v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Writ A No. 63167 of 2012
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-srivastava-v-state-of-u-p-anr-45565
- **Pages:** 6

## Headnote

A. Service Law - Promotion - Uttar
Pradesh
Subordinate
Excise
Service
Rules, 1992: Rules 5, 16, 27 - In the order
impugned, the State Government on the
recommendations
of
Excise
Commissioner
extended the benefit of Rule 5 to Senior Clerks,
who had not completed the stipulated 10 years
of service. As a result of which, the claim of
petitioner for promotion which was duly
considered and recommended could not be
given effect to. The Court while quashing the
impugned orders held as follows.

B. The power of relaxation as conferred
by S. 27 is liable to be construed bearing
in mind the language employed therein.
It is evidently liable to be invoked where
the particular rule or provision causes
2 All. Ashok Kumar Srivastava Vs. State of U.P. & Anr.
1747
"..undue hardship in any particular case".
(Para 12)

The second key or means of guidance
placed on the exercise of power is use of
the phrase "in a just and equitable
manner". The expression as used in the
particular rule clearly bids the respondents to
balance and bear in mind the competing rights
and expectations of constituents of two
separate cadres, namely, Senior and Junior
Clerks. The power could not have been
exercised
in
a
manner
that
completely
annihilated the right of Junior Clerks to be
considered for promotion. (Para 14)

C. A power of relaxation cannot be
employed
as
a
tool
or
means
to
completely amend the intrinsic character
or content of a statutory provision. The
power to amend a statutory rule is clearly and
must in law be held to be distinct from a power
to relax. (Para 13)

Writ petition allowed. (E-4)

Petition
challenges
orders
dated
20.09.2012 and 26.09.2012, passed by
State
Government
and
the
Excise
Commissioner respectively, and order
dated 28.12.2012, passed by Excise
Commissioner.

## Text

1746 INDIAN LAW REPORTS ALLAHABAD SERIES
Buttons Ltd. etc. Vs. State of Haryana and
others, AIR 2005 SC 565; and Kastha
Niwarak G. S. S. Maryadit, Indore Vs.
President, Indore Development Authority,
AIR 2006 SC 1142).

28. A Division Bench of this Court (in
which one of us Hon'ble Sudhir Agarwal,J.
was a member) in Special Appeal No.375 of
2005 Shiv Raj Singh Yadav Vs. State Of
U.P. And Others, decided on 27.05.2011,
has considered this aspect in detail and in
paragraph no.22, has held:

"22. Once it is established that the
petitioner had no legal right of regularisation,
merely
because
some
irregularities
and
illegalities
have
been
observed
by
the
respondents in some other cases with respect to
regularisation, that would not confer any right
upon the petitioner to claim parity. The right of
equality under Article 14 and 16 of the
Constitution is a positive concept and not a
negative one. (See Post Master General, Kolkata
and others Vs. Tutu Das, 2007(5) SCC 317;
Punjab National Bank by Chairman and Anr. Vs.
Astamija Dash, AIR 2008 SC 3182; Punjab State
Electricity Board and others Vs. Gurmail Singh,
2008(7) SCC 245; M/s. Laxmi Rattan Cotton
Mills Ltd. Vs. State of U.P. and others, 2009(1)
SCC 565; Panchi Devi Vs. State of Rajasthan
and others, 2009(2) SCC 589; State of Bihar Vs.
Upendra Narayan Singh, 2009(5) SCC 65; State
of Uttaranchal Vs. Alok Sharma and others, JT
2009(6) SC 463; State of Punjab and another Vs.
Surjit Singh and others, 2009(11) SCALE 149;
State of Madhya Pradesh and others Vs. Ramesh
Chandra Bajpai, 2009(11) SCALE 619; Shanti
Sports Club and another Vs. Union of India and
others, 2009(11) SCALE 731; Ghulam Rasool
Lone Vs. State of J & K and others, JT 2009(13)
SC 422."(Emphasis Added).

29. In the light of aforesaid, we find that
impugned judgementand and order dated
29.05.2009 passed by Tribunal cannot be
sustained. Writ petition is accordingly allowed.
Judgment and order dated 29.05.2009 passed
by Tribunal in O.A. No. 734 of 2006 (Indrajeet
and another Vs. The General Manager, North
Eastern Railway and others) is hereby set
aside.

30. No costs.
----------
(2020)02ILR A1746

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 63167 of 2012

Ashok Kumar Srivastava ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Udayan Nandan, Sri Shashi Nandan

Counsel for the Respondents:
C.S.C.

A. Service Law - Promotion - Uttar
Pradesh
Subordinate
Excise
Service
Rules, 1992: Rules 5, 16, 27 - In the order
impugned, the State Government on the
recommendations
of
Excise
Commissioner
extended the benefit of Rule 5 to Senior Clerks,
who had not completed the stipulated 10 years
of service. As a result of which, the claim of
petitioner for promotion which was duly
considered and recommended could not be
given effect to. The Court while quashing the
impugned orders held as follows.

B. The power of relaxation as conferred
by S. 27 is liable to be construed bearing
in mind the language employed therein.
It is evidently liable to be invoked where
the particular rule or provision causes
2 All. Ashok Kumar Srivastava Vs. State of U.P. & Anr.
1747
"..undue hardship in any particular case".
(Para 12)

The second key or means of guidance
placed on the exercise of power is use of
the phrase "in a just and equitable
manner". The expression as used in the
particular rule clearly bids the respondents to
balance and bear in mind the competing rights
and expectations of constituents of two
separate cadres, namely, Senior and Junior
Clerks. The power could not have been
exercised
in
a
manner
that
completely
annihilated the right of Junior Clerks to be
considered for promotion. (Para 14)

C. A power of relaxation cannot be
employed
as
a
tool
or
means
to
completely amend the intrinsic character
or content of a statutory provision. The
power to amend a statutory rule is clearly and
must in law be held to be distinct from a power
to relax. (Para 13)

Writ petition allowed. (E-4)

Petition
challenges
orders
dated
20.09.2012 and 26.09.2012, passed by
State
Government
and
the
Excise
Commissioner respectively, and order
dated 28.12.2012, passed by Excise
Commissioner.

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Sri Udayan Nandan, learned
counsel for the petitioner and the learned
Standing Counsel for the State respondents.

2. This writ petition challenges the orders
dated 20 and 26 September 2012 passed by the
State
Government
and
the
Excise
Commissioner respectively. These orders
essentially expanded the field of eligibility for
Senior Clerks vying for promotion to the post
of Excise Inspector and a consequential
annulment of the recommendations framed by
the Departmental Promotion Committee. A
further relief is sought for quashing of
proceedings of the fresh recommendations
framed by the Departmental Promotion
Committee
pursuant
to
the
orders
aforementioned in its meeting held on 7
November 2012 as also for quashing of an
order dated 28 December 2012 passed by the
Excise
Commissioner
rejecting
the
representation of the petitioner.

3. Sri Nandan, learned counsel, however
submits that he chooses to give up prayer
(aaaa) subject to rights being reserved to assail
the order of the State Government dated 20
September 2012 which contained the principal
stipulation which is assailed and led to the
denial of the claim of the petitioner for
promotion. Sri Nandan further pressed the
prayer with respect to grant of notional
promotion to the petitioner on the post of
Excise Inspector. The issue itself arises in the
following backdrop.

4. The petitioner was appointed as a
Junior Clerk in the Department of Excise. The
relevant statutory rules which governed
provide for accelerated promotion to the post
of Excise Inspector. These Rules are titled the
Uttar Pradesh Subordinate Excise Service
Rules, 1992. Rule 5 thereof makes the
following provisions:

"5. Source of Recruitment:-
Recruitment to the various categories of posts
in the service shall be made from the following
sources:

1. Excise Inspector

(i).
Eighty
percent
by
direct
recruitment.

(ii) Ten percent by promotion from
amongst the permanent sub-excise Inspectors
and

(iii) Ten percent by promotion from
amongst such persons who are substantively
appointed Senior Assistants and Stenographers
1748 INDIAN LAW REPORTS ALLAHABAD SERIES
Grade- II of the Excise Department on the first
day of the year of recruitment.

Provided that if in any year of
recruitment sufficient number of suitable
eligible persons are not available for
promotion, the field of eligibility may be
extended to include the following persons,
in the order given below.

(a.) Substantively appointed
Senior
Clerks
and
Stenographers
Grade-III, who have completed ten
years service as such on the first day of
the year of recruitment and

(b) Substantively appointed
Junior Clerks, who have completed
fifteen years service as such on the first
day of the year of recruitment."

5. Pursuant to the provisions made in
those Rules, the respondents initiated a process
for effecting promotions to the post of Excise
Inspector.
The
Departmental
Promotion
Committee is stated to have met on 14 August
2012 in which the claim of the petitioner for
promotion
was
duly
considered
and
recommended. The Excise Commissioner in
terms of a communication of the same date is
stated to have apprised the State Government
that only 5 Senior Clerks were found eligible
for promotion to the post of Excise Inspector.
He accordingly recommended the State
Government extending the benefit of Rule 5 by
relaxing the minimum period of 10 years
service as stipulated in respect of Senior
Clerks. The recommendation itself appears to
have been framed in the backdrop of the
Proviso to Rule 5 that took care of a situation
where adequate number of eligible persons
were not found available for promotion. In that
situation
the
Proviso
envisaged
that
substantively appointed Senior Clerks who had
completed 10 years of service would also be
considered for promotion and thereafter
substantively appointed Junior Clerks who had
completed 15 years of service would also be
entitled to be considered for promotion. The
inter se consideration of Senior and Junior
Clerks in terms of the Proviso is evidently
controlled by the use of the phrase "...in the
order given below". The provision manifests a
clear intent to firstly consider all Senior Clerks
who have completed 10 years of service and
only thereafter to move further below and
consider Junior Engineers with 15 years of
service.

6. Pursuant to the recommendation made
by the Excise Commissioner, the State
Government passed an order on 20 September
2012. The directions as framed and insofar as
they are relevant for the purposes of disposal of
the instant writ petition read thus:

"इस सम्बि में मुझे यह कहने का
कनिेि हुआ है कक पूवम क भााँत ऐसे वररष्ठ
कलकपक कजतने 10 विम क सेवा पूणम कर ल हो,
वह आबकार कनर क्षक के पि पर चयन हेतु
पहले पात्र होगा । तत्पश्चात वह वररष्ठतम
कलकपक पात्र होगा कजसक वररष्ठ कलकपक के पि
पर 10 विम क कवकहत सेवावकध पूणम नह ों है
ककन्तु वह ककनष्ठ कलकपक के पि पर 15 विम क
सेवा पूणम कर चूका हो, अिवा वह वररष्ठ
कलकपक कजसक सेवा वररष्ठ एवों ककनष्ठ कलकपक
िोनोों पिोों पर कुल 15 विम से अकधक हो ।
तत्पश्चात वे ककनष्ठ कलकपक पात्र होोंगे, जो 15 विम
क सेवा पूणम कर चुके होों ।"

7. The State Government bearing in
mind the provisions made in Rule 5 and
the
recommendation
of
the
Excise
Commissioner provided that while initially
all Senior Clerks having completed 10
years of service would be considered,
thereafter it would be open for the
respondents to also consider the case of
those Senior Clerks who had while
working as a Senior Clerk and Junior
Clerk cumulatively completed 15 years of
2 All. Ashok Kumar Srivastava Vs. State of U.P. & Anr.
1749
service. It basically extended the benefit to
those
Senior
Clerks
who
had
not
completed 10 years of service as stipulated
in Rule 5. While this controversy ensued,
the petitioner retired on 31 October 2012
and it is in that backdrop that the prayer
for notional promotion is addressed.

8. According to Sri Nandan while it
was open for the State to relax a particular
condition of service if the exigencies of
the situation did so demand, that power
could not be read as empowering the State
Government
to
virtually
amend
the
substantive rule itself and that too by way
of an executive order. Referring to the
power of relaxation as conferred on the
State Government by virtue of Rule 27, Sri
Nandan submitted that even that Rule
could not have come to the aid of the State
Government and in any case could not be
read in support of the directions as framed
in the impugned order of 20 September
2012. Rule 27 is extracted herein below:-

"27.
Relaxation
from
the
Conditions of Service:- Where the State
Government is satisfied that the operation
of any rule regulating the conditions of
service of persons appointed to the service
causes undue hardship in any particular
case it may, notwithstanding anything
contained in the rules applicable to the
case, by order dispense with or relax the
requirements of that rule to such extent
and subject to such conditions as it may
consider necessary for dealing with the
case in a just and equitable manner."

9. According to Sri Nandan by way
of the directions as framed in the
impugned order of 20 September 2012, the
entire construct of Rule 5 has been
unsettled and various ineligible Senior
Clerks were ultimately included in the
field of eligibility as a consequence of
which
the
recommendation
of
the
Departmental Promotion Committee as
framed on 14 August 2012 could not be
given effect to.

10. Refuting those submission,
learned Standing Counsel submitted that
the
State
bearing
in
mind
the
recommendation
of
the
Excise
Commissioner
and
on
finding
that
requisite number of Senior Clerks were not
available was clearly justified in framing
the directions as contained in the order
dated 20 September 2012. According to
the learned Standing Counsel the power as
conferred
by Rule
27
was
validly
exercised.

11. Before proceeding to deal with
the rival submissions, it would also be
relevant to bear in mind the provisions
made in Rule 16, which envisages
promotion
being
effected
by
the
Committee on the relative assessment of
the suitability of candidates on the basis of
their service records. The Selection
Committee was also granted the discretion,
if
thought
necessary,
to
interview
candidates.

12. Having noticed the rival
submissions and the statutory regime
which prevailed and governed, the Court
finds
substance
in
the
submission
advanced by Sri Nandan. The power of
relaxation as conferred by Section 27 is
liable to be construed bearing in mind the
language employed therein. At the outset it
is evidently liable to be invoked where the
particular rule or provision causes "..
undue hardship in any particular case".
The second key or means of guidance
which is placed on the exercise of power
under the rule is evidenced from the use of
1750 INDIAN LAW REPORTS ALLAHABAD SERIES
the phrase "in a just and equitable
manner".

13.

The
impugned
action
fundamentally
rests
on
the
recommendation
of
the
Excise
Commissioner which in turn was based
upon the Department noting that only 5
Senior Clerks were falling within the zone
of consideration. While it may have been
open to the State Government on a
fundamental plane to relax the condition of
10 years of qualifying service, it clearly
could not have been exercised in a manner
which completely amended the rule of
eligibility itself. As is manifest, the rule
mandated the inclusion of only such
Senior Clerks who had completed 10 years
of service. It did not envisage the inclusion
of Senior Clerks who had cumulatively put
in 15 years of service in the cadre of
Senior and Junior Clerks. A power of
relaxation cannot be employed as a tool or
means to completely amend the intrinsic
character or content of a statutory
provision. If the power to relax were to be
construed in such a fashion, it would
assume the character of a power to amend.
The power to amend a statutory rule is
clearly and must in law be held to be
distinct from a power to relax.

14. The second reason why the Court
finds itself unable to sustain the impugned
action rests on the use of the phrase "in a
just
and
equitable
manner".
The
expression as used in the particular rule
clearly bids the respondents to balance and
bear in mind the competing rights and
expectations
of
constituents
of
two
separate cadres, namely, Senior and Junior
Clerks. The power to relax consequently
could not have been exercised in a manner
that completely annulled or annihilated the
right of Junior Clerks to be considered for
promotion. Viewed in that light it is
evident that the power to relax as
conferred by Rule 27 was employed in a
manner which completely effaced the right
of consideration of Junior Clerks. The
Court finds itself unable to recognise Rule
27 as extending to the framing of
directions as contained in the impugned
communication of the State Government.
The impugned communication and the
consequential decisions taken by the
respondents thus cannot be sustained.

15. The Court notes that the
petitioner does not seek quashing of the
ultimate promotions which were effected.
In that sense the promotion accorded to
individuals
shall
remain
unaffected.
However, that does not detract from the
right of the petitioner for being accorded
notional promotion in light of the
recommendations
as
framed
by
the
Departmental Promotion Committee.

16. Accordingly, the instant writ
petition
is
allowed.
The
impugned
stipulation as contained in the Government
Order of 20 September 2012 is quashed.
The Court also sets aside the order dated
26
September
2012
by
which
the
recommendations of the Departmental
Promotion
Committee
were
annulled
insofar as the present petitioner is
concerned. The Court also sets aside the
order dated 28 December 2012 by which
the claim of the petitioner was rejected by
the Excise Commissioner. The respondents
are consequently commanded to consider
the recommendations of the Departmental
Promotion Committee as formulated on 14
August 2012 and to consider the grant of
notional promotion to the petitioner on the
post of Excise Inspector with effect from
14 August 2012.
----------
2 All. Satya Prakash Rai Vs. State of U.P. & Anr.
1751
(2020)02ILR A1751

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 68437 of 2009

Satya Prakash Rai ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Nisheeth Yadav, Sri C.B. Yadav

Counsel for the Respondents:
C.S.C.

A. Service Law - termination - U.P.
Police
Officers
of
the
Subordinate
Ranks (Punishment and Appeal) Rules,
1991 - Rule 8(2)(b) - Constitution of
India - Article 311 (2)(b) - while
dispensing
with
the
inquiry,
it
is
necessary to record reasons in writing -
order cannot be passed on the basis of
previous service record as well as
without recording reasons - impugned
order dated 31.8.2009 - bad in law -
set aside.
(Para9, 25)

Petitioner was terminated from service by
exercising the power under Rule 8(2)(b) of
the U.P. Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules, 1991
- no reasons have been recorded - passed
only on the basis of previous service record -
which is contrary to the provisions of Rule
8(2)(b) of Rules, 1991 as well as Article
311(2)(b) of the Constitution of India .
(Para2,24)

Held:- Order of termination cannot be
passed on the basis of punishment or past
service record without providing opportunity
of hearing and further while passing any
order under Rule 8(2)(b) of Rules, 1991
reasons have to be recorded by authority in
writing as to why inquiry is not reasonably
practicable. (Para-23)

Writ Petition allowed. (E-7)

List of cases cited:-

1. Union of India and another Vs. Tulsiram
Patel, AIR 1985 SC 1416,

2. Chief Security Officer and others Vs.
Singasan Rabi Das, 1991 (1) SCC 729,

3. Jaswant Singh Vs. State of Punjab and
others, (1991) 1 SCC 362,

4. Bishambher Singh Bhadoria Vs. State of
U.P. and others, 2008 (4) ESC 2872 All,

5. Sudesh Kumar Vs. State of Haryana and
others, (2005) 11 SCC 525,

6. Raksh Pal Singh Vs. State of U.P. and
another,2009 (5) ADJ 735 and

7. Yadunath Singh Vs. State of U.P. and
others, 2009 (9) ADJ 86 (DB)

8. Indu Bhushan Dwivedi Vs. State of
Jharkhand and another , 2010 (126) FLR 994

9. Mohd Yunus Khan Vs. State of Uttar
Pradesh and others , (2010) 10 SCC 539

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Nisheeth Yadav,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
respondents.

2. Pleadings have been exchanged
between the parties. With the consent of
parties, writ petition is being decided at
the admission stage itself.

3. Learned counsel for the petitioner
is assailing the impugned order dated