# Ashutosh Pandey & Ors v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-31
- **Case number:** Writ-A No. 9913 of 2023
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashutosh-pandey-ors-v-state-of-u-p-ors-52875
- **Pages:** 14

## Headnote

(A) Service Law - Promotion and Seniority
Dispute
- Uttar Pradesh Government
Servant Rules, 2013, Tehsildar Service
Rules, 1966 - Rule 6 & 4 - The Uttar
Pradesh Subordinate Revenue (Tehsildar)
Service Rules, 1966 - Rule 6 , The U.P
Government
Servant
Relaxation
in
Qualifying Service for Promotion Rules,
2006 (amended in 2013) - Rule 2 & 4, The
Uttar
Pradesh
Government
Servant
Criteria for Recruitment by Promotion
Rules, 1998 - Arbitrary Appointment -
Breach of Seniority Principle - Promotion -
Seniority List - Relaxation in Eligibility -
Seniority must be maintained as per the
select list issued by the Public Service
Commission - Grant of relaxation in
qualifying service is discretionary and
cannot be claimed as a matter of right -
Promotions should be considered based on
final,
not
tentative
seniority
lists
-
Employee only has the right to be
considered for promotion but there is no
right to be promoted, if conditions are
satisfied. (Para -23,24,27,35,36,39 )
Petitioners were selected as Naib-Tehsildars in
2016 batch - were issued appointment letters at
different times, leading to delays in joining -
Board of Revenue prepared a seniority list in
2020 - did not initially include petitioners due to
their delayed joining - subsequent relaxation in
qualifying service was granted only to those
who had joined before 31/12/2019, excluding
the petitioners - petitioners challenged the
promotion of junior candidates before their own
consideration.(Para - 2 to 27)

HELD: - State must ensure that relaxation in
eligibility does not violate the seniority principle;
promotions should be made based on finalized
seniority lists. State Government was directed to
consider
and
decide
the
proposal
dated
17/10/2024 expeditiously, with further direction
to consider and make the promotions to the
post of Tehsildar also expeditiously. Interim
order restraining promotions vacated. (Para -
29,38,41)
Writ A No.9913 of 2023 disposed of.
writ A No.4808 of 2024 dismissed. (E-7)
List of Cases cited:

## Text

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452 INDIAN LAW REPORTS ALLAHABAD SERIES
Department
of
Irrigation
and
Water
Resources, Government of U.P., Lucknow
by the Registrar (Compliance).
----------
(2025) 1 ILRA 452
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.01.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 9913 of 2023
With
Writ-A No. 4808 of 2024

Ashutosh Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:

Counsel for the Respondents:
(A) Service Law - Promotion and Seniority
Dispute
- Uttar Pradesh Government
Servant Rules, 2013, Tehsildar Service
Rules, 1966 - Rule 6 & 4 - The Uttar
Pradesh Subordinate Revenue (Tehsildar)
Service Rules, 1966 - Rule 6 , The U.P
Government
Servant
Relaxation
in
Qualifying Service for Promotion Rules,
2006 (amended in 2013) - Rule 2 & 4, The
Uttar
Pradesh
Government
Servant
Criteria for Recruitment by Promotion
Rules, 1998 - Arbitrary Appointment -
Breach of Seniority Principle - Promotion -
Seniority List - Relaxation in Eligibility -
Seniority must be maintained as per the
select list issued by the Public Service
Commission - Grant of relaxation in
qualifying service is discretionary and
cannot be claimed as a matter of right -
Promotions should be considered based on
final,
not
tentative
seniority
lists
-
Employee only has the right to be
considered for promotion but there is no
right to be promoted, if conditions are
satisfied. (Para -23,24,27,35,36,39 )
Petitioners were selected as Naib-Tehsildars in
2016 batch - were issued appointment letters at
different times, leading to delays in joining -
Board of Revenue prepared a seniority list in
2020 - did not initially include petitioners due to
their delayed joining - subsequent relaxation in
qualifying service was granted only to those
who had joined before 31/12/2019, excluding
the petitioners - petitioners challenged the
promotion of junior candidates before their own
consideration.(Para - 2 to 27)

HELD: - State must ensure that relaxation in
eligibility does not violate the seniority principle;
promotions should be made based on finalized
seniority lists. State Government was directed to
consider
and
decide
the
proposal
dated
17/10/2024 expeditiously, with further direction
to consider and make the promotions to the
post of Tehsildar also expeditiously. Interim
order restraining promotions vacated. (Para -
29,38,41)
Writ A No.9913 of 2023 disposed of.
writ A No.4808 of 2024 dismissed. (E-7)
List of Cases cited:
1. St. of U.P. Vs Vikash Kumar Singh, (2022) 1
SCC 347
2. U.O.I. Vs Manpreet Singh, (2022) 6 SCC 105

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Dr. Lalta Prasad Mishra, and
Sri
Jaideep
Narain
Mathur,
Senior
Advocate assisted by Sri Avinash Singh
Vishen on behalf of the petitioners, Sri
Kuldeep Pati Tripathi, learned Additional
Advocate General for the State of U.P..

2. It has been submitted on behalf of
petitioners
that
in
pursuance
of
advertisement dated 11/01/2016 issued by
the U.P Public Services Commission for
appointment to various posts including the
post of Naib-Tehsildar the petitioners had
1 All. Ashutosh Pandey & Ors. Vs. State of U.P. & Ors.
453
applied and appeared in the recruitment
exam and were declared selected. In the
select list prepared by the Public Service
Commission the names of the petitioners
find mention at serial No. 33, 35, 108, 115,
152 and 186 respectively. It has been
submitted that the appointment letters to
the petitioners were issued on the various
dates between 03/09/2019 and 04/03/2021.
It was submitted that the anomaly was
committed by the State as appointment
letters were issued randomly to the
candidates
whose
documents
stood
verified. This resulted in issuance of
appointment letters randomly permitting
persons much lower in the select list
prepared by the U.P Public Service
Commission to join much prior to other
candidates
whose
verification
was
completed subsequently. The petitioners
duly joined on the post of Naib Tehsildar
with much delay and after completion of
the period of probation petitioner No.s 1, 3,
4, 5 and 6 were confirmed by order dated
20/04/2022
which
was
corrected
on
05/09/2023 while petitioner No. 2 was
confirmed by order dated 19/06/2023.

3. The respondents proceeded to
prepare a gradation list of all the selected
candidates on 18/09/2020 which did not
include petitioners as they had joined the
service
between
03/07/2020
and
07/04/2021.
It
is
submitted
that
subsequently on representation having been
made by the petitioners the names were
included.

4. In the meanwhile, before the
petitioners had joined the services, the
Board of Revenue, on the basis of the
Seniority list prepared on 18/09/2020, sent
a proposal to the State Government for
relaxation of 6 months in qualifying service
of the incumbents who had joined the
service on or before 31/12/2019 as per the
provisions of Rule 6 of Tehsildar Service
Rules, 1966 (Second Amendment) 1999
and Rule 4 of Relaxation in Qualifying
Service for Promotion Of Uttar Pradesh
Government
Servant
Rules
(1st
Amendment) rules, 2013 and the State
Government duly granted the relaxation by
its order dated 14/08/2023. It is relevant to
note that the State Government while
granting relaxation had imposed certain
conditions and the most relevant for the
present case being condition No. 4 which
provided that the Board of Revenue will
ensure that under no circumstance person
who is junior be granted the relaxation in
eligibility condition ignoring the claim of
any person who is senior in any manner
whereby the senior may be deprived of his
being excluded due to eligibility condition.
The Board of Revenue proceeded to
promote 141 Naib Tehsildar to the post of
Tehsildar by order dated 16/08/2023.

5. It has further been submitted that
the new provisional Seniority list has been
issued by the Board of Revenue on
28/12/2023 where the name of the
petitioners finds mention in accordance
with the select list prepared by the U.P
Public
Service
Commission.
Another
proposal dated 10/11/2023 has been sent by
Board of Revenue to the State Government
for promotion to the post of Tehsildar after
granting relaxation to the persons who had
joined the service till 01/07/2020. The
petitioners have not been included said
proposal
as
they
have
joined
after
01/07/2020. The Board of Revenue have
proceeded to include even the members of
2017 batch for promotion, who were junior
to the petitioners having been recruited in
the subsequent recruitment year, without
considering the claim of the petitioners, and
when this fact came to the knowledge of
454 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioners they have preferred the
instant writ petition with the following
prayers:-

"(a) to issue a writ, order or
direction
in
nature
of
mandamus
commanding the opposite parties to 1st
consider and promote the petitioners as
Tehsildar from the date from which persons
placed below the petitioners in the select
list/merit list of 2016 batch have been
promoted as
such
with
effect
from
16/08/2023
before
considering
and
promoting any other person belonging to
Naib tehsildar selection 2016 having taken
place below the petitioners in the select
list/merit list of that selection below the
petitioners and before considering and
promoting any selective subsequent batch
of batches after 2016 batch.

(b) To issue a writ, order or
direction
in
nature
of
mandamus
commanding
the
opposite
parties
to
promote the petitioners and to treat them as
Tehsildars with effect from 16/08/2023 with
all consequential benefits.

(c) To issue a writ or direction in
nature of mandamus commanding the
opposite parties to grant relaxation in the 4
years of eligibility of service as Naib
tehsildar for promotion to the post of
tehsildar either of 250% or more than 50%
as on one 723 if required at all."

6. The apprehension of the petitioners
is that the respondents will proceed to
consider and promote persons of 2017 batch
only because of the fortuitous circumstance
that they had joined the service before the
petitioners. It has further been vehemently
submitted that the cut-off date for joining
having been fixed by the Board of revenue is
illegal and arbitrary in as much as it adversely
discriminates the petitioners and is based on
the decision for which the respondents
themselves were responsible. It was the
action of the respondents in issuing delayed
appointment letters in a staggered manner
without adhering to the principle of seniority,
and such appointment letters were issued
with the gap of more than one half years for
which the respondents themselves were
responsible, and the such actions of the
respondents the petitioners cannot be held be
responsible and denied promotion on the
basis of seniority.

7. In Writ A No.9913 of 2023 an interim
order was passed on 23/01/2024 restraining
the respondents from promoting anyone of
2016 batch who are below the petitioners in
the select list as well anyone from subsequent
selection on the post of Tehsildar. Against the
interim order Special Appeal was preferred
by petitioners of writ A No.4808 of 2024 (of
2017 batch) being Special Appeal Defective
No. 388 of 2024. The special appeal was
disposed of with the request of the writ Court
to take up the matter, if possible, on the next
day, if not then at the earliest say within one
week to dispose of the application for
impleadment and other applications which
may have been filed by the appellants.

8. Against both the aforesaid orders a
Special Leave Petition was preferred before
the Hon'ble Supreme Court being Special
Leave
Petition
(Civil)
diary
No.
44243/2024 which was disposed of on
14/10/2024 with a direction to this Court to
consider the application for impleadment
and
other
pending
applications
for
variations/vacation/ modification of the
interim order dated 23/01/2024 and take
appropriate
decision
thereon
for
the
continuance of the interim orders on the
same terms.

9. Apart from the above a writ petition
has also been filed by the 7 applicants' of
1 All. Ashutosh Pandey & Ors. Vs. State of U.P. & Ors.
455
2017 batch being Writ A No.4808 of 2023
seeking the following prayer:-

"(a) mandamus directing the
opposite party No. 1 to 4 to grant
relaxation in qualifying service as per
proposal dated 10/11/2023.

(b)
Mandamus
directing
the
opposite party No. 1 to 4 to promote the
petitioners and trade them as Tehsildars
with effect from 01/01/2024 on the post of
tehsildar."

10. The petitioners of writ A No.4808
of 2024 also moved an application for
impleadment in writ A No.9913 of 2023
and pressed the applications for vacation of
the interim order. This Court on 02/08/2024
has recorded that the counsel for the
applicant has submitted that they have
themselves filed writ "A" No. 4808 of 2024
which is already connected with the present
petition, and it is further stated that all the
possible pleadings have already been made
by the applicants not only in the application
but also in the connected matter. Therefore,
they have been heard extensively as
petitioners of writ A No.4808 of 2024 and
as intervenors in writ A No. 9913 of 2023
and both the writs are being decided finally
by means of the present order.

11. Sri Jaideep Narain Mathur, Senior
Advocate assisted by Sri Avinash Singh
Vishen have been heard in support of the
affidavits filed in writ A No. 9913 of 2023
as well as in writ A No.4808 of 2024. The
main thrust of the arguments was that the
respondents should be directed to proceed
with the exercise for promotions to the post
of Tehsildar by firstly granting relaxation I
eligibility conditions as per the proposal of
the respondents dated 10/11/2023 where
the names of the petitioners were also
included and further proceeded to consider
their name for promotion to the post of
Tehsildar considering the fact that the
petitioners are eligible in as much as they
have completed the eligibility criteria laid
down under the rules. It was vehemently
prayed that the interim order restraining the
respondents from proceeding with the
promotion be vacated.

12. It was further contended that as per
Rule 6 of the Uttar Pradesh Subordinate
Revenue (Tehsildar) Service Rules, 1966
the eligibility for promotion to the post of
Tehsildar would include such employees
who have completed at least 5 years of
service on the substantive post on 1st of
July of the year in which the recruitment is
taking place, but in case sufficient number
of candidates are not available then such
candidates who have been confirmed and
they have completed 4 years of service can
be considered.

13. The respondents have contended
that there is acute shortage of Tehsildars in
the State of U.P. in as much as against total
sanctioned strength of 766 posts only 386
Tehsildars are working, and 380 posts are
vacant due to the fact that candidates
having minimum qualifying service of 4
years in the feeding cadre are not available.

14.
To
overcome
the
aforesaid
difficulty, the respondents resorted to relax
the period of qualifying service utilising the
provisions of the U.P Government Servant
Relaxation in Qualifying Service for
Promotion Rules, 2006 as amended in 2013
(hereinafter referred to as the relaxation
rules). According to Rule 2 of the said rules
have
effect
notwithstanding
anything
contained in any other service rule made by
the Governor, while rule 4 provided for
relaxation in the minimum length of service
up to 50% which can be done by the
456 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned administrative department in
consultation with the Personnel Department
excluding the period of probation as laid
down for the said lower post or posts.

15. Rule 4 was amended in 2013 and a
proviso was added which provided that if in
special circumstances the administrative
department find that there is justification
for granting more than 50% relaxation in
the minimum length of service prescribed
on the lower post or posts as the case may
be for promotion, then in such situations a
proper proposal shall be submitted by the
administrative department through the
personal department for approval before the
committee consisting of Chief Secretary,
Principal Secretary, Personnel department
and Principal Secretary to the Government
in
the
considered
administrative
department.

16. It has been contended on behalf of
the petitioners that they have completed
more than 3 years of service and now they
would be eligible to be promoted to the
post of Tehsildar in case suitable relaxation
is granted in their favour. It was submitted
that even the State Government while
granting relaxation on the proposal sent by
the Board of revenue by order dated
14/08/2023 had provided in paragraph 4
that the Board of revenue should ensure
that no junior person is given relaxation
ignoring the claim of a senior and ensure
that no senior person in the seniority list is
deprived of promotion only on this account.

17. Learned Additional Advocate
General has submitted that the State
Government is ready and willing to
consider all the eligible candidates for
promotion to the post of Tehsildar
considering the fact that there are large
number of vacancies in existence and there
is a urgent need to fill the post of Tehsildar
considering the fact that there has to be at
least one Tehsildar in each Tehsil and the
work
of
the
revenue
would
suffer
immensely in case the promotions are not
made expeditiously and therefore submitted
that the interim order be vacated and the
respondent be permitted to make the
promotions. In the counter affidavit which
was filed on 24/02/2024 it was stated that
only because the petitioners have not
completed 3 years of qualifying service
their case could not be considered for
promotion.

18. Learned Additional Advocate
General has further informed this Court and
placed before us and also supplied a copies
to the other counsels, another proposal
dated 17.10.2024 which has been sent by
the Board of Revenue to the State
Government with regard to the promotion
to the post of Tehsildar from the cadre of
Naib Tehsildar. It has been stated that
according to Rule 6 either a person should
have five years' experience on the post of
Naib Tehsildar or should have worked on
the said post for four years and in case such
persons are not available for promotion
then the requirement of eligibility condition
can be relaxed so that adequate number of
persons can be promoted to the post of
Tehsildar. They have further noticed the
provisions of relaxation rules as amended
in 2013 wherein it is provided that 50 per
cent eligibility can be relaxed by the
Administrative Department and in case
more than 50 per cent eligibility condition
of service is required to be relaxed then the
matter has to be considered by a committee
headed by Chief Secretary. It is in aforesaid
circumstances that they have proposed to
relax the eligibility condition of minimum
required length of service so as to include
the persons who have joined on the post of
1 All. Ashutosh Pandey & Ors. Vs. State of U.P. & Ors.
457
Naib
Tehsildar
till
31.12.2020
and
accordingly 23 persons working on the post
of Naib Tehsildar on the first date of the
selection year 2024-25 and have completed
three years and six months would be
granted maximum of 50 per cent relaxation
and persons who have joined between
31.12.2020 till 1.7.2021 who are 13 in
number and have completed three years on
the first date of the selection year 2024-25,
would also be granted 50 per cent
relaxation
and
accordingly
the
said
proposal includes the names of 36 persons.
It has been stated that in case the proposal
is accepted by the Government then all the
petitioners now would be duly considered
for promotion to the post of Tehsildar. It
was submitted that the grievance of the
petitioners of writ A No. 9193 of 2023
would stands redressed and prayed for
vacation of the interim order of dismissal of
the writ petition.

19.
We
have
heard
the
rival
contentions and also perused the record.

20. The controversy in the present case
has his roots in the manner in which the
State
Government
had
issued
the
appointment letters to the 2016 batch
selected candidates after submission of the
select list by the U.P Public Service
Commission.
Undoubtedly,
the
State
Government has to verify the criminal
antecedents of the candidates, but such
verification has to be conducted and
concluded in time bound manner, and in
any case on completion of the said exercise
appointment letters have to be issued as far
as possible either together or as per the
merit list. The respondents on the other
hand have issued the appointment letters in
a haphazard and staggered manner and
according to them as and when the
verification of the particular candidate was
complete, appointment letters were issued.
This
exercise
was
conducted
totally
ignoring the place of the candidate in the
merit list. Not only this but this exercise
took more than 1 1⁄2 years. Apart from this,
the problem was compounded by the fact
that some persons who were employed in
various government or semi-Government,
departments or even in the private sector
had to tender their resignations and seek
their relieving before they could have
joined, for which further time was
consumed and hence the joining was also
delayed.

21. It is in the meanwhile that the
recruitment of 2017 batch was completed,
and the selected candidates had joined
service prior to some of the persons
including the petitioners who belong to
2016 batch. Considering the number of
vacancies in the cadre of Tehsildar, and
also considering that the said post was to be
filled totally by promotion from the cadre
of Naib Tehsildar and Revenue Inspectors,
and also that there were various directions
of the High Court directing the State to fill
- up the vacancies at the earliest and
considering that Tehsildar is an important
post in the Tehsil to decide various issues
under the provisions of the U.P Revenue
Code, the respondents initiated the process
for preparation of the seniority list even
before all the appointment letters been
issued and the procedure for appointment
completed.

22. The major hindrance which was
faced in making the said promotions
(selection year 23-24) was that adequate
number of persons were not available who
had requisite eligibility as provided under
Rule 6 of the Uttar Pradesh Subordinate
Revenue (Tehsildar) Service Rules, 1966.
They proceeded to finalise the seniority list
458 INDIAN LAW REPORTS ALLAHABAD SERIES
even
before
the
entire
exercise
for
appointment of 2016 batch was complete,
and considered 141 persons working on the
post of Naib Tehsildar who had joined the
service till 31/12/2019 and due relaxation
was granted vide Government Order dated
14/08/2023 subsequent to which the order
of promotion was passed on 16/08/2023.
As the petitioners had not joined service till
31/12/2019 they were not considered for
the said promotions, while more than 50
persons who were junior to the petitioners
in the Select List prepared by the U.P
Public
Services
Commission
were
considered and promoted to the post of
Tehsildar.

23. The promotion to the post of
Tehsildar has to be made in accordance with
the Uttar Pradesh Government Servant
Criteria for Recruitment by Promotion Rules,
1998 which provide for the promotion to be
made on the basis of seniority subject to
rejection of the unfit. The manner in which
the respondents have proceeded to make the
promotions is clearly questionable. When the
State had received a select list of candidates
from the U.P Public Services Commission,
we see no reason as to why appointment
letters were issued between September, 2019
and March 2021 in a staggered manner not
adhering to the merit list, leaving it open to
the whims and fancies of the respondents to
issue appointment letter to certain persons
earlier than the remaining candidates who
may be higher in the merit list. It is due to this
arbitrary action that persons lower in the
merit list were able to join the service much
earlier and claim promotion to the next higher
post on the basis of the length of service. This
has resulted in the breach of the principle of
seniority.

24. At this stage, it is necessary to
keep in mind that Rule 6 of the Uttar
Pradesh Subordinate Revenue (Tehsildar)
Service Rules, 1966 provides the eligibility
conditions for promotion to the post of
Tehsildar, which would be relevant to
prepare the list for the prospective
candidates which would be considered by
the Departmental Promotion Committee.
The criteria Rules of 1994 provide for the
manner for consideration for promotion by
the departmental promotion committee,
which is seniority subject to rejection of
unfit. Therefore, the fitness of each
candidate
before
the
departmental
promotion committee must be considered
on the basis of seniority subject to rejection
of unfit, meaning thereby the person who is
senior in the seniority list would have a
right to be considered prior to the person
who is lower in the seniority list.

25. According to Rule 9 of the
Seniority Rules, the seniority list has to be
prepared "as soon as may be after
appointments are made to a service", while
in the present case before issuance of the
appointment letter to all the selected
candidates of 2016 batch, and before the
recruitment process could be completed by
issue of appointment letters to all the
selected
candidates,
the
respondents
initiated the task of preparation of the
seniority list. The said action resulted in
exclusion of number of candidates who by
that time had not been issued appointment
letters and had not joined the service, even
though they were much senior to the
persons who had been issued appointment
letters and had joined the service. Even
though this aspect of the matter pertaining
to the issuance of the appointment letters is
not controlled or provided for in any rules,
but as a matter of prudence and propriety
the respondent should have issued the
appointment letters serially in order of
merit.
1 All. Ashutosh Pandey & Ors. Vs. State of U.P. & Ors.
459

26. The State in matter of public
employment cannot resort to the pick and
choose policy but has to act in accordance
with rules and well-established principles
of equality. Our Constitutional scheme
envisages employment by the Government
and its instrumentalities on the basis of a
procedure established in that behalf.
Equality of opportunity is the hallmark, and
the Constitution has provided also for
affirmative action to ensure that unequal's
are not treated as equals. Thus, any public
employment must be in terms of the
Constitutional scheme. The process of fair
selection is undertaken to secure the best
and
meritorious
candidates
in
their
respective
category,
which
is
communicated to the State Government by
the recruiting agency or the Public Service
Commission by means of a select list. The
State Government, if it chooses to act upon
the select list, has to adhere to the said list
in the manner it has been forwarded and
does not have any right to change or alter
the said list.

27. Issuing appointment letters and
permitting juniors to join before the
persons who are senior in the select list, has
resulted in junior persons having joined
earlier and were in service for period of
more than one year when the appointment
letters were issued to the persons senior to
them. The action of the respondents has
resulted in a situation where persons who are
junior have a longer length of service from
the date of actual joining than the persons
who are senior in the select list. This action
has resulted in violation of the rule of
seniority which is clearly arbitrary. The
action in issuing the appointment letters
arbitrarily has been further compounded
when seniority list was prepared when the
process of issuance of appointment letters to
the selected candidates of 2016 batch was
underway, and of candidates had not been
issued
appointment
letters.
Further
promotions were made to the post of
Tehsildar from the seniority list which was
prepared where the petitioners who are much
senior to the persons who were permitted to
join prior to them and were excluded from
such consideration. In effect, the seniority
which was to be maintained as per the select
list came to be sacrificed at the altar of
expediency and that to by statutory authority
like the Board of Revenue.

28. There is no dispute with regard to
the fact that subsequently a seniority list are
being prepared where Naib-Tehsildars of
2016 batch has been placed higher in the
seniority list than the Naib-Tehsildars of 2017
batch, and accordingly persons of 2016 batch
have a right to be considered for promotion
before the persons of 2017 batch.

29. Responding to the request Board of
Revenue by means of order dated 14/08/2023
the State Government had issued directions to
the effect that it has to be ensured that the
concept of seniority has to be adhered
inasmuch as the relaxation in service be not
granted in such a way so as to exclude the
seniors from the zone of consideration on the
grounds of eligibility. The State Government
not only laid down the policy to be followed
by the Board of Revenue directing them to
follow the principles of seniority while
granting relaxation, but when it was brought
to their notice that the said rule was violated
and
complaints
were
received
from
petitioners and other persons of 2016 batch,
sought a response from the Board of Revenue
by means of a letter dated 01/09/2023, but no
such response is available on record.

30. Learned Additional Advocate
General has produced a copy of letter dated
17/10/2024 written by the Commissioner
460 INDIAN LAW REPORTS ALLAHABAD SERIES
and Secretary Board of Revenue to the
State Government containing a proposal to
promote the persons who have joined on
the post of Naib- Tehsildar by 31/12/2020
which according to them are 23 in number,
and further 13 persons who joined
subsequently by 01/07/2021 which is the
1st day of the selection year 24 - 25 years
and have completed 3 years and 31/2 years
respectively on the post of Naib- Tehsildar,
have been sought be granted relaxation of
minimum
of
service
required
for
promotion. It has further been submitted
that on the acceptance of said proposal the
petitioners would be duly considered for
being promoted to the post of Tehsildar and
consequently
their
grievance
stands
redressed. Dr Lalta Prasad Mishra learned
counsel for the petitioner after perusal of
the said order dated 17/10/2024 submitted
that he does not dispute the fact that in case
the said proposal is accepted the petitioner
also would be promoted to the post of
Tehsildar but further submitted that a
prayer has been made for promoting the
petitioners from the date their juniors have
been promoted needs to be considered.

31. The proposal dated 17/10/2024 has
been forwarded to the State Government
seeking relaxation in the service of the
petitioners of writ A No. 9913 of 2023 and
in case it is accepted, and the relaxation is
granted the petitioners therein would be
considered for promotion prior to the
consideration for promotion of 2017 batch
candidates, and to that extent their
grievance would stands redressed. On the
other hand, the claim of petitioners in writ A
No. 4808 of 2024 is only to the extent of
directing the respondents to proceed with the
promotions, and their grievance would also
stands redressed if the respondents are
directed to proceed to consider and decide the
issue pertaining to relaxation sought by the
Board of Revenue as per the proposal dated
17/10/2024 and to further consider the case of
the eligible candidates for promotion.

32. Both the contesting parties, the
petitioners of writ A No. 9913 of 2023 who
are of 2016 batch and the petitioners of writ
A No.4808 of 2024 who are of 2017 batch
are claiming promotion prior to the other.
Petitioners of writ A No.9913 of 2023 are
claiming themselves to be senior having been
appointed as Naib-Tehsildar in the previous
selection year than candidates' of 2017 batch,
as the criterion for promotion is the seniority
subject to rejection of unfit. On the other
hand, the petitioners of writ A No.4808 of
2024 claim that they have joined the service
prior to the petitioners of writ A No. 9913 of
2023 and, therefore, on the basis of length of
service they are eligible for promotion and
the respondents should be directed to conduct
the promotions immediately. They had
sought the aforesaid direction keeping in
mind the proposal of the Board of Revenue
dated 10/11/2023 where the petitioners of
writ A No.9913 of 2023 were excluded from
being
granted
relaxation
and
further
promotion while the petitioners of writ A
No.4808 of 2024 belonging to the 2017 batch
were included.

33. Sri Kuldeep Pati Tripathi, Learned
Additional Advocate General has fairly
submitted that the State Government would
be proceeding to consider the proposal of the
Board of Revenue dated 17/10/2024, and
further relaxation would be granted, and
further promotions would be done only in
accordance with the said proposal ignoring
the previous proposal dated 10 /11/2023.

34. Dr Lalta Prasad Mishra appearing
on behalf of the petitioners of writ A No.
9913 of 2023 expressed his satisfaction
after being informed that all the petitioners
1 All. Ashutosh Pandey & Ors. Vs. State of U.P. & Ors.
461
now would be considered for grant of
relaxation of the eligibility conditions and
would be considered for promotion prior to
the 2017 batch of the list attached with the
letter
dated
17/10/2024.
Accordingly
considering that the previous proposal
dated 10/11/2023 which was the basis of
the grievance of the petitioners of writ A
No. 9913 of 2023 has lost its relevance and
is no longer under active consideration of
the
State
Government
having
been
superseded
by
the
proposal
dated
17/10/2024,
therefore,
we
need
not
adjudicate on merits upon the validity of
the said proposal considering that the said
proposal does not exist and accordingly the
grievance of the petitioners of writ A No.
9913 of 2023 to that extent stands
redressed. Accordingly no direction can be
issued for the State to proceed to consider
the proposal of the Board of Revenue dated
10/11/2023.

35. We have also taken into account
the prayer made by petitioners of 2017
batch who had only moved an application
for vacation of the interim order dated
23/01/2024,
and
accordingly
in
the
aforesaid
substantially
changed
circumstances, cases made out to vacate the
interim order dated 23/01/2024 to enable
the respondents to grant relaxation and
further to proceed to consider the proposal
dated 17/10/2024 for grant of relaxation of
eligibility conditions and consider the
promotion to the post of Tehsildar with
expedition. In the counter affidavit filed by
the State Government it has been stated a
fresh and order list is under preparation
and then tentative seniority list was
circulated in objections had been received.
Till filing of the said affidavit, it seems
that the seniority list was not finalised. As
per
settled
proposition
of
law
the
respondent shall proceed for promotion
only the basis of the final seniority list and
not on basis of a tentative seniority list.

36. Hon'ble Supreme Court in the
case of State of U.P. Vs. Vikash Kumar
Singh (2022) 1 SCC 347 has upheld that
grant of relaxation in the minimum length
of service is at the discretion of competent
authority and cannot be claimed as a
matter of rights. Relevant paragraphs of
the same judgment is quotes as under:-

"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 2006
Relaxation Rules in qualifying service and
consequently has quashed and set aside
the eligibility lists dated 18-3-2019 and
10-5-2019. At the outset, it is required to
be noted that as such as per Rule 5(iii) of
the 1990 Rules, 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
petitioners did not fulfil 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 Rules 5(iii) and 8(iii) of the 1990
Rules. 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 they did not
fulfil the eligibility criteria as per Rule
5(iii) of the 1990 Rules. 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 1990 Rules.
462 INDIAN LAW REPORTS ALLAHABAD SERIES

7.1. The learned Single Judge
thereafter while quashing and setting aside
the eligibility lists dated 18-3-2019 and 105-2019 has issued the 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 2006 Relaxation Rules.
The word used in Rule 4 of the 2006
Relaxation Rules 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
the
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 High
Court has also erred in quashing and
setting aside the eligibility lists dated 18-32019 and 10-5-2019, which as such were
prepared absolutely in consonance with the
1990 and 2006 Rules. 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.

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 State of U.P. v. Vikash Kumar
Singh [State of U.P. v. Vikash Kumar
Singh, 2020 SCC OnLine All 1600] and the
judgment and order passed by the learned
Single Judge dated 11-12-2019 passed in
Vikash Kumar Singh v. State of U.P.
[Vikash Kumar Singh v. State of U.P., 2019
SCC OnLine All 6930] are hereby quashed
and set aside. Consequently, the writ
petition
filed
by
the
original
writ
petitioners being Writ Petition No. 14962
(S/S) of 2019 stands dismissed. The present
appeal is allowed accordingly, however,
there shall be no order as to costs. Pending
applications, if any, also stand disposed
of."

37. Considering that the prayer made
by the petitioners of Writ A No.4808 of
2024 is for granting relaxation in qualifying
service as per proposal dated 10/11/2023
and the said proposal has since been
superseded by the fresh proposal dated
17/10/2024, no such directions as sought by
the petitioners can be passed as the said
proposal has been given up by the
respondents themselves. The 2nd prayer is
for a direction to promote the petitioners
and treat them as Tehsildars with effect
from 01/01/2024 on the post of Tehsildar
also cannot be granted as it could not be
demonstrated that any junior to the
petitioners has been promoted with effect
from that date, any other right is vested in
the petitioners for being promoted with
effect from 01/01/2024. Accordingly the
said prayer is rejected.

38. Considering that in case the fresh
proposal dated 17/10/2023 is accepted then
all the petitioners of both the writ petitions
would be duly considered for promotion to
the post of Tehsildar and hence this Court
is of the considered view that looking into
the number of vacancies in the cadre of
Tehsildar, and considering that persons
who were duly qualified and eligible are
not available and hence a decision has been
taken by the respondents to relax the
eligibility criteria and the proposal has
already been forwarded to the State
Government in this regard, and accordingly
we direct the State Government to consider
and decide the proposal dated 17/10/2024
1 All. Ashutosh Pandey & Ors. Vs. State of U.P. & Ors.
463
expeditiously, with further direction to
consider and make the promotions to the
post of Tehsildar also expeditiously.

39. At this point it would be relevant
to quote the rendition of Hon'ble Supreme
Court in the case of Union of India Vs.
Manpreet Singh, (2022) 6 SCC 105 where
it has been held that employee only has the
right to be considered for promotion but
there is no right to be promoted, if
conditions are satisfied. The relevant
portion of the said judgement is quoted as
under:-

"18. A mere existence of vacancy
per se will not create a right in favour of an
employee for retrospective promotion when
the vacancies in the promotional post are
specifically prescribed under the rules,
which also mandate the clearance through
a selection process. It is also to be borne in
mind that when we deal with a case of
promotion, there can never be a parity
between two separate sets of rules. In other
words, a right to promotion and subsequent
benefits and seniority would arise only with
respect to the rules governing the said
promotion, and not a different set of rules
which might apply to a promoted post
facilitating further promotion which is
governed by a different set of rules.

19.