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

- **Citation:** (2020) 8 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-24
- **Case number:** Special Appeal Defective No. 187 of 2020
- **Bench:** Pankaj Jaiswal, Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-vikash-kumar-singh-ors-45942
- **Pages:** 10

## Headnote

A. Service Law - U.P. Government Servant
Relaxation and Qualification Service for
Promotion Rules, 2006 - Rule 4 - U.P.
Service
&
Engineers
(Irrigation
Department) (Group- A) Services Rules
1990 - Rule 5(III), 8(II) - U.P. Promotion
by Selection (on the posts outside the
purview of Public Service Commission)
Eligibility Rules, 1986 - Rule 2, 4 - U.P.
Government
Servant
Relaxation
in
Qualifying Service for Promotion (First
Amendment) Rules, 2013 - Rule 4
According to Rule 5(III) of the 1990 Rules the
petitioners partially qualifies for the promotion on the
post of Chief Engineer (Civil) (Level-II) from the post
of Superintendent Engineer. The qualifying service as
provided can be relaxed. The Rule 2006 has an
overriding effect over Rule 1990 and Rule 1986 in
order to select the most meritorious candidate after
evaluating their comparative merit on the basis of
annual entries for the last 10 years. The whole
purpose of enacting the Rules 2006 is to provide
relaxation in qualifying in service in order to select the
most meritorious candidates amongst the larger
number of candidates. Thus the Court uphold the
Single judge's order directing for inclusion of the
names of the respondents in the eligibility list or else
the entire purpose of the Rules 2006 shall be
defeated. (Para 24)
Special Appeal Rejected. (E-10)

List of cases cited: -

## Text

8 All. State of U.P. & Ors. Vs. Vikash Kumar Singh & Ors.
1
(2020)08ILR A1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.07.2020

BEFORE
THE HON'BLE PANKAJ JAISWAL, J.
THE HON'BLE KARUNESH SINGH PAWAR, J.

Special Appeal Defective No. 187 of 2020

State of U.P. & Ors. ...Appellants
Versus
Vikash Kumar Singh & Ors. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Mukund Tewari

A. Service Law - U.P. Government Servant
Relaxation and Qualification Service for
Promotion Rules, 2006 - Rule 4 - U.P.
Service
&
Engineers
(Irrigation
Department) (Group- A) Services Rules
1990 - Rule 5(III), 8(II) - U.P. Promotion
by Selection (on the posts outside the
purview of Public Service Commission)
Eligibility Rules, 1986 - Rule 2, 4 - U.P.
Government
Servant
Relaxation
in
Qualifying Service for Promotion (First
Amendment) Rules, 2013 - Rule 4
According to Rule 5(III) of the 1990 Rules the
petitioners partially qualifies for the promotion on the
post of Chief Engineer (Civil) (Level-II) from the post
of Superintendent Engineer. The qualifying service as
provided can be relaxed. The Rule 2006 has an
overriding effect over Rule 1990 and Rule 1986 in
order to select the most meritorious candidate after
evaluating their comparative merit on the basis of
annual entries for the last 10 years. The whole
purpose of enacting the Rules 2006 is to provide
relaxation in qualifying in service in order to select the
most meritorious candidates amongst the larger
number of candidates. Thus the Court uphold the
Single judge's order directing for inclusion of the
names of the respondents in the eligibility list or else
the entire purpose of the Rules 2006 shall be
defeated. (Para 24)
Special Appeal Rejected. (E-10)

List of cases cited: -

1. Keshav Chandra Joshi & ors. Vs U.O.I. & ors.
(1992) Supll SCC 272

2. Suraj Prakash Gupta & ors. Vs St. of J. & K. &
ors. 2007 SCC page no. 561 (distinguished)

3. Rajendra Kumar Aggarwal Vs. St. of U.P. &
ors. (2015) 1 SCC 642

(Delivered by Hon'ble Karunesh Singh Pawar, J.)

C.M.A. No. 39966 of 2020

1. Heard Shri Manjive Shukla,
learned Additional Chief Standing Counsel
and Shri Mukund Tewari, learned counsel
for respondents on the delay condonation
application.

2. The present special appeal is
barred by 177 days.

3. Shri MukundTewari, learned
counsel for respondents has very fairly
submitted that he has no objection if the
delay in filing the appeal is condoned.

4. On due consideration, we find
that the delay has been sufficiently
explained and therefore, the application for
condonation of delay is allowed.

Re:- Special Appeal

1. Heard Shri Manjive Shukla,
learned Additional Chief Standing Counsel
and Shri MukundTewari, learned counsel
for respondents.

2. The present appeal has been filed
by the appellant against the judgment and
order dated 11.12.2019 passed in Writ
Petition No. 14962 (S/S) of 2019.
2 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The petitioner/respondent no. 1 to 6
were
directly
appointed
as Assistant
Engineer (Civil) Department of Irrigation
and Water Resources on 08.10.1999 in
consultation with the Uttar Pradesh Public
Service Commission, Allahabad and they
have placed at serial no. 2417,2420, 2421,
2424, 2432 and 2436 respectively in the
eligibility list.

4.Thereafter the petitioners/respondent
no. 1 to 6 on 24.05.2012 were regularly
promoted as Executive Engineer (Civil) in
the Department of Irrigation and Water
Resources and subsequently in the year
2017 they were regularly promoted as
Superintending
Engineer
(Civil)
by
granting relaxation in the qualifying service
under
the
U.P.
Government
Servant
Relaxation and Qualifying Service for
Promotion Rules, 2006 (hereinafter referred
to as Rules 2006).

5. Rule 5(III) of the Uttar Pradesh
Services
and
Engineers
(Irrigation
Department) (Group-A) Services Rules
1990 (hereinafter referred to as the Rules
1990) reads as under:-

"Rule 5 (iii) Chief Engineer, Civil
or Mechanical-Level II.-By promotion from
amongst
the
substantively
appointed
Superintending Engineers in the Civil or
Mechanical Branch, as the case may be,
who have completed twenty-five years'
service (including at least three years'
service as Superintending Engineer) on the
first day of the year of recruitment;

That the above rule provides that
promotion to the post of Chief Engineer
(Civil) (Level-II) is to be made by
promotion from amongst substantively
appointed Superintendent Engineers who
have completed 25 years of service
including
one
year
of
service
as
Superintending Engineer.

Rule 8(II) of the Rules 1990 reads
as under:-

(2) Recruitment to the post of
Cheif Engineer-Level-II, Chief EngineerLevel-1 and the Engineer-in-Chief shall be
made on the basis of merit through a
Selection Committee comprising:-

(i)
Chief
Secretary
to
the
Government........ Chairman.

(ii) Secretary to the Government
in Personnel

Department ................ Member.

(iii) Secretary to the Government
in Irrigation Department ..... Member."

That the above rule provides that
the promotion to the post of Chief Engineer
Level-II shall be made on the basis of merit
through a selection committee.

"Rule 8 (3) The appointing
authority shall prepare an eligibility list of
the candidates in accordance with the Uttar
Pradesh Promotion by Selection (on posts
outside the purview of the Public Service
Commission) Eligibility List Rules, 1986
and place the same before the Selection
Committee along with their character rolls
and such other record pertaining to them,
as may be considered proper."

According to the aforesaid rule,
the appointing authority shall prepare an
eligibility list in accordance with U.P.
Promotion by Selection (on the posts
outside the purview of Public Service
Commission)
Eligibility
Rules,
1986
(hereinafter referred to as the Rules 1986)
and place the same before the selection
committee along with their character rolls
and such other record pertaining to them as
may be considered properly.

Rule 2 of the Rules 1986 provides
that the rules shall have overriding effect
8 All. State of U.P. & Ors. Vs. Vikash Kumar Singh & Ors.
3
notwithstanding
anything
contrary
contained in any other rules or orders. The
said rule 2 of the Rules 1986 reads as
under:-

2.Overriding effect:- These rules
shall have effect notwithstanding anything
to the contrary contained in any other rules
or orders.

Rule 4 of the Rules 1986 provides
that where the criteria for promotion is
merit,
the
appointing
authority
shall
prepare a list of senior most candidates
containing as far as possible, three times
the number of vacancies subject to a
minimum of eight. Rule 4 of the Rules
1986 reads as under:-

"Rule 4. Preparation of eligibility
list where the criteria is merit.- Where the
criteria for promotion is merit, the
appointing authority shall prepare a list of
the senior most candidates containing
names as far as possible, three times the
number of vacancies subject to the
minimum of eight"

6. In the year 2006, the Rules 2006
have come into effect and rule 4 of the
Rules 2006 provides for relaxation in the
qualifying service. The said rule 4 of the
Rules 2006 reads as under:-

"Rule 4. Relaxation in qualifying
service.- In case a post is filled by
promotion and for such promotion a certain
minimum length of service is prescribed on
the lower post or posts, as the case may be,
and the re3quired number of eligible
persons are not available in the field of
eligibility, such prescribed minimum length
of service may be suitably related up to fifty
percent
by
the
government
in
the
Administrative Department in consultation
with
Personnel
Department
of
the
Government, excluding the period of
probation as lid down for the said lower
post or posts, as the case may be."

According to the aforesaid rule 4
of the Rules 2006 in case a post is to be
filled by promotion and for such promotion
a certain 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 up to fifty percent by the
government
excluding
the
period
of
probation.

7. In the year 2013, U.P. Government
Servant Relaxation in Qualifying Service
for Promotion (First Amendment) Rules,
2013 have come into force which provides
in rule-4 that in the special circumstances
relaxation can be granted beyond fifty
percent in case a justification is made out.
The aforesaid rule 4 reads as under:-

"(1) 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
constituted as follows:

8. The government order dated
20.11.2017 (page no. 112-113) which has
been issued in pursuant to the various
judgments of the Supreme Court provides
that in case where the criteria of promotion
is merit, the appointing authority shall
consider the cases of all candidates and
select the most meritorious candidates after
4 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the comparative merit on the
basis of their annual entries of last 10 years.

9. The number of vacancies has been
determined as 26 for the post of Chief
Engineer (Civil) and hence, as per the
Rules 1996, a total of 78 Superintending
Engineers (Civil) should have been eligible
for being considered for promotion to the
post of Chief Engineer for which the
criteria of promotion is merit.

10. For recruitment year 2018-19 on
23.07.2018
an
eligibility
list
of
74
Superintending
Engineers
(Civil)
was
prepared and in the list the names of the
petitioners/respondent no. 1 to 6 was at
serial no. 60, 63, 64, 67, 72 and 74 with a
note appended at the bottom stating that the
petitioners do not complete 25 years of
service on the post of Assistant Engineer
(Civil) and it would be necessary to grant
relaxation in minimum qualifying service.

11. A revised eligibility list was again
prepared on 07.03.2019 for the recruitment
year
2018-19
of
59
Superintending
Engineers (Civil) by the opposite parties
excluding the names of the petitioners as
they were not completing 25 years of
service on the post of Assistant Engineer
(Civil). Thereafter again on 18.03.2019 a
revised eligibility list for recruitment year
2018-19 of 44 Superintending Engineers
(Civil) was prepared by the opposite parties
excluding the names of the petitioners and
lastly on 10.05.2019 another revised
eligibility
list
of
41
Superintending
Engineers (Civil) was prepared excluding
the names of the petitioners/respondent no.
1 to 6.

12. Aggrieved by the exclusion of
their names from the eligibility list, the
petitioners/respondent no. 1 to 6 have
assailed
the
eligibility
lists
dated
18.03.2019
and
10.05.2019
of
the
Superintending
Engineers
(Civil)
for
promotion to the post of Chief Engineer
(Civil) Level-II in the Department of
Irrigation and Water Resources by filing the
writ petition.

13. The learned single judge after
hearing the parties found that eligibility
lists dated 08.03.2019 and 10.05.2019 of
Superintending
Engineers
(Civil)
for
promotion to the post of Chief Engineer
(Civil) Level-II of the department are
arbitrary and cannot be sustained and hence
quashed both the eligibility lists and a
further writ of mandamus was issued
commanding the competent authority to
prepare the eligibility list of Superintending
Engineers (Civil) including the names of
the petitioners/respondent no. 1 to 6 for
promotion to the post of Chief Engineer
(Civil)(Level-II) granting them relaxation
in
minimum
length
of
service
in
accordance with the Rules 2006 as
amended in the year 2013.

14. A further writ of mandamus was
issued commanding the opposite parties to
consider
the
case
of
the
petitioners/respondent no. 1 to 6 for
promotion to the post of Chief Engineer
(Civil) Level-II in accordance with the
Rules 1990 and office circular dated
22.03.1984 as amended by Government
Order dated 20.11.2017.

15. Learned counsel for the appellants
submits that granting relaxation in the
required minimum length of service is an
executive function of the State and the said
relaxation
is
given
by
the
State
Government after considering each and
every aspect as per the provisions of the
Rules 2006.
8 All. State of U.P. & Ors. Vs. Vikash Kumar Singh & Ors.
5

16. It is next contended that learned
Writ Court ought to have directed the State
Government to consider the case of the
petitioners/respondent no. 1 to 6 for grant
of aforesaid relaxation which is an
executive function rather issuing a writ of
mandamus
commanding
the
State
Government to include the names of the
petitioners/respondent no. 1 to 6 by
granting them relaxation under the Rules
2006.

17. Learned counsel for the appellants
further submits that it is a settled
preposition of law that the writ court cannot
take any decision which otherwise is to be
taken by the executive authority under the
provisions of statutory service rules.

18. It is next contended that where the
criteria for promotion is merit, the
eligibility list shall be prepared in the ratio
of 1:3 as far as possible, subject to
minimum of eight. The language of the rule
is very clear that it is not necessary for all
the time to prepare the eligibility list in the
ratio of 1:3 as legislature has used words
"as far as possible".

19. Learned writ court has taken a
view that under rule 4 eligibility list has to
be prepared in the ratio of 1:3 and no
deviation is possible. He has further
submitted that after perusing rule 4 of the
Rules 1986 it is evident that intention of the
legislature is very clear and discretion lies
in the hands of appointing authority. He
also submits that the language used in rule
4 of the Rules 2006 enabling provision for
the State Government and a government
servant cannot claim relaxation in the
minimum length of service as a matter of
right. It is the discretion of the State
Government to use it or not. Therefore, the
view taken by the learned single judge that
in every case of promotion the State
Government has a mandate under the Rules
1986 to prepare the eligibility list in the
ratio of 1:3 whereas the legislature has used
words "as far as possible" and hence, the
view taken by the learned Single Judge is
not sustainable in the eyes of law.

20. Lastly it has been submitted that
the State Government is not bound to take
recourse of rule 4 of the Rules 2006 in
every case of promotion.

21. Learned counsel for the appellants
has relied on the judgment in support of his
arguments reported in "(1992) Supl1 SCC
272 Keshav Chandra Joshi and others Vs.
Union of India and others". He further has
relied on the judgment reported in "2007
SCC page no. 561 Suraj Prakash Gupta and
others Vs. State of Jammu and Kashmir and
others".

22. Per contra learned counsel for the
petitioners/respondent no. 1 to 6 has made
following submissions:-

That the criteria for promotion for
the post of Chief Engineer (Civil) Level-II
is merit on the basis of evaluation of annual
entries for the post of last 10 years, hence,
eligibility list should contain the candidates
thrice the number of vacancies as provided
in the Rules 1986.

That
the
qualifying
service
provided in rule-5(III) of the Rules 1990 is
not essential requirement for promotion to
the post of Chief Engineer (Civil) Level-II
and it ought to be released under the Rules
2006 as it has overriding effect over the
Rules 1990 and only the annual entries of
past ten years are to be looked into for the
purposes of promotion.

That the Rules 1986 is mandatory
in nature and has overriding effect over the
6 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules 1990 and therefore, the eligibility list
should contain the names three times the
number of vacancies as the criteria for
promotion is merit because the most
meritorious candidates is to be selected after
evaluating their comparative merit list.

That the expression used in the
Rules 1986 "as far as possible" means to
the largest possible extent or to the
maximum limit which can put into effect
by granting relaxation in qualifying rules
under the Rules 2006 while considering for
promotion as the criteria is merit.

That the Rules 1986 provides that
the
eligibility
list
should
contain
a
minimum of eight candidates which means
that where the criteria for selection is merit,
the eligibility list cannot have less than
eight candidates even if the selection is for
a single post and it cannot mean that for 26
posts of Chief Engineers an eligibility list
for eight candidates can be prepared.

That the Rules 2006 has been
framed with a view to provide relaxation in
qualifying service so as to select the most
meritorious candidates from a large number
of candidates.

That the purpose of enacting the
Rules 2006 would be defeated in case
suitable candidates are not included in the
eligibility list by providing relaxation in
qualifying service as provided under the
Rules 1986 for being considered for
promotion where the criteria for promotion
is merit.

That
the
State
Government
cannot have any grievance in case the
selection
of
the
most
meritorious
candidates is made from the large number
of candidates, especially in view of the fact
that the Rules 2006 has been enacted to
grant relaxation in qualifying service in
case the adequate number of candidates are
not available for being considered for
promotion.

It is submitted that it is not the
discretion of the State Government to
invoke the Rules 2006 as and when it
pleases because the rule is mandatory and
has overriding effect over the Rules 1990.

That
the
State
Government
cannot act arbitrarily by denying to invoke
the Rules 2006 because the respondents
have been given the benefit of relaxation in
qualifying in service on the post of
executive engineer when they were granted
promotion on the post of Superintending
Engineer in the Department of Irrigation.

Lastly it is submitted that names
of the respondents were initially included
in the eligibility list dated 23.02.2018 but
were excluded in the subsequent eligibility
lists dated 07.03.2014, 18.03.2019 and
10.05.2019 in violation of the Rules 1990,
the Rules 1986, and the G.O. dated
20.11.2017, therefore, the eligibility lists
have been rightly set aside by the learned
Single Judge and direction to prepare the
fresh eligibility list containing the names of
the petitioner/respondent no. 1 to 6 is just,
valid and proper.

He has relied on the judgment
passed by the Apex Court reported in
"2015 (1) SCC 642 Rajendra Kumar
Aggarwal Vs. State of U.P. and others"

23. Having heard learned counsel for
the parties and after perusal of the record,
we have noticed that the learned writ court
while passing the judgment has given
elaborate findings after going through each
and every aspect of the relevant rules. The
relevant paragraph of the order dated
11.12.2019 reads as under:-

"The question for consideration
before this Court is that as to whether while
preparing the eligibility list as per Rule 8
(3) of the Rules, 1990 for making
promotion as per Rule 5 (iii) of Rule 1990
8 All. State of U.P. & Ors. Vs. Vikash Kumar Singh & Ors.
7
the modality so prescribed under Rule 4 of
the Rules, 1986 may be ignored on the
pretext of length of service when Rule 4 of
Rules,
2006
as
amended
in
2013
categorically mandates that length of
service may be relaxed up to 50% and even
beyond 50% by the State Government if the
required number of candidates are not
available.

Admittedly,
there
are
two
conditions for making promotion on the
post of Chief Engineer from the post of
Superintending Engineer under Rule 5(iii)
of 1990 Rules. First, the candidate must be
substantively
appointed
Superintending
Engineer and have completed one year
service as Superintending Engineer and
second, those have completed 25 years
service as Assistant Engineer.

The petitioners have fulfilled first
condition but are not qualifying second
condition i.e. length of service of 25 years
as Assistant Engineer.

Rule 8 (3) of the Rules, 1990
categorically provides that eligibility list
shall be prepared as per Rules 1986. Rule 4
of 1986 Rules provides that the eligibility
list shall be prepared three times the
number of vacancies as far as possible,
meaning thereby the department must have
option to select the best Superintending
Engineer as the criteria for said promotion
is merit, therefore, unless the department
gets ample option applying criteria of 1:3
in preparing the eligibility list, the best
meritorious
candidates
may
not
be
selected. Therefore, in the present case
earlier the select list of 74 was prepared
which was near to 78 for the total number
of vacancy is 26 and applying the ratio of
1:3 at least 78 candidates should be there
in the select list. Thereafter various revised
select lists have been prepared decreasing
the number of candidates in the select list
from 59 to 44 to 41. Now as per the final
revised gradation list 26 Chief Engineers,
Level II are to be promoted amongst the
select list of 41 persons and if in the
meantime some Superintendent Engineers
retire or relinquishes the job for any
reason, the select list would be narrowed
and in that case the proper selection on the
basis of merit strictly as per the wish of the
legislators
may
not
be
achieved.
Admittedly, to meet out such situation
Rules, 2006 have come into being providing
relaxation in qualifying service which has
been amended in the year 2013 and the
admitted legal position is that the minimum
length of service may be relaxed beyond
50% as per amended Rules, 2013.

Undisputedly,
the
State
Government invokes such provision of
relaxation to meet out these peculiar
circumstances. Even in the case of the
petitioners when they were promoted on the
post of Superintending Engineer they were
given relaxation in length of service
rendered as Assistant Engineer.

As discussed above the State
Government issued a Government Order
dated 20.11.2017 amending its earlier
office order / circular dated 22.3.1984
laying down that where the criteria for
promotion is merit the most meritorious
officers have to be selected after evaluating
the comparative merit of all the legible
candidates on the basis of their Annual
Confidential
Report.
This
government
order further provides that the select list
shall be prepared on the basis of
benchmark so fixed by the Departmental
Promotion Committee.

Therefore, the combined reading
of Rule 8(3) of the Rules, 1990, Rule 4 of
the Rules, 1986 and Rule 4 of Relaxation
Rules, 2006 along with the Government
Order dated 20.11.2017 clearly reveal that
for making promotion on the post wherein
the criteria is merit the select list shall be
8 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared applying 1:3 ratio as far as
possible and if the suitable candidates are
not available in appropriate numbers, the
minimum
length
of
service
of
the
candidates in the feeding cadre may be
relaxed up to 50% or beyond 50%. In any
case the very object to promote the most
meritorious
persons
in
terms
of
Government
Order
dated
20.11.2017
should be fulfilled and for the technical
reasons the condition of Rule 5(iii) may not
be imposed in strict sense. There is no
doubt that while making promotion on a
post wherein the criteria is merit, the
meritorious persons should be promoted in
the interest of the department and of the
State
Government.
The
technicalities
should not defeat the purpose of law.

In view of the above, since Rule 4
of Rules 1986 provides that the number of
candidates in the eligibility list shall be
three times the number of vacancies as far
as possible and the term 'as far as possible'
means that the efforts should go to the
greatest extent, degree or amount that is
attainable.
Therefore,
when
there
is
statutory prescription under Rule 4 of the
Rules, 2006 regarding granting relaxation
that should be resorted to so as to promote
the best candidates on the post where the
criteria is merit. As per my opinion the
technicalities may not frustrate the purpose
of law, the law must be applied as per wish
of the legislatures. It may not be the wish of
law that less meritorious candidates be
promoted on the posts where the criteria is
merit for the reason that eligibility list has
been prepared consisting less number of
candidates
without
taking
resort
of
Relaxation Rules, 2006 ( as amended in
2013).

Accordingly,
I
am
of
the
considered opinion that the eligibility list
dated
8.3.2019
and
10.5.2019
of
Superintending
Engineer
(Civil)
for
promotion to the post of Chief Engineer
(Civil) Level II of the department are not
sustainable in the eyes of law being illegal
and arbitrary, therefore, both the eligibility
lists are hereby quashed.

A writ in the nature of mandamus
is issued commanding the competent
authority to prepare the eligibility list of
Superintending Engineer (Civil) including
the names of the petitioners for promotion
to the post of Chief Engineer (Civil) (Level
II) granting them relaxation in minimum
length of service in accordance with Rules,
2006 as amended in the year 2013.

A writ in the nature of mandamus
is also issued commanding the opposite
parties to consider the case of the
petitioner for promotion to the post of Chief
Engineer (Civil) Level II in accordance
with 1990 Rules, office circular dated
22.3.1984 as amended by Government
Order dated 20.11.2017.

In the result the writ petition
succeeds and is accordingly allowed.

No order as to costs."

24. After going through the judgment
of the learned Single Judge and the
arguments of the parties, we find no
illegality in the judgment impugned. There
are two conditions for making promotion
on the post of Chief Engineer (Civil)
(Level-II) from the post of Superintendent
Engineer under Rule 5 (III) of the 1990
Rules. Firstly he should be substantively
appointed Superintending Engineer and
have completed one year of service as
Superintending Engineer and secondly he
should have completed 25 years of service
as
Assistant
Engineer.
The
petitioners/respondent no. 1 to 6 though
fulfils the first condition, however they lack
25 years of service as Assistant Engineers.
Rule 8(II) of 1990 Rules and government
order dated 20.11.2017 provides that the
8 All. State of U.P. & Ors. Vs. Vikash Kumar Singh & Ors.
9
criteria for promotion to the post of Chief
Engineer (Civil) Level-II is merit after
evaluating the annual entries for the last 10
years and the eligibility list has to contain
thrice the number of candidates than the
number of vacancies as provided under the
Rules 1986. The qualifying service provided
under Rule 5(III) of the Rules 1990 can be
relaxed for promotion to the post of Chief
Engineer (Civil) Level-II. The Rules 2006 has
an overriding effect over the Rules 1990 and
has an overriding effect over the Rules 1986,
in order to select the most meritorious
candidate after evaluating their comparative
merit on the basis of annual entries for the last
10 years for the purpose of promotion to the
post of Chief Engineer (Civil). The whole
purpose of enacting the Rules 2006 is to
provide relaxation in qualifying in service in
order to select the most meritorious candidates
amongst the larger number of candidates. The
entire purpose of the Rules 2006 shall be
defeated in case the suitable candidates are not
included in the eligibility list by relaxing the
qualifying service.

25. The judgment relied on by the State
appellants are distinguishable on facts. In
"Suraj Pratap Gupta and others Vs. State of
Jammu Kashmir and others" the Government
was carried away by sympathy for the
promotees by not making direct recruitment
after 1984 by restricting direct recruiters to 10
percent rather than permitting 20 percent and
by deliberately promoting Chief Engineers to
other 10 percent quota reserved for the direct
recruiters and thus, the Government has acted
in a biased manner and the consequent
regularisation of the promotees held to be
rightly quashed by the high court as they have
illegally occupied the direct recruitment quota.

26. In the case of Keshav Chandra
Joshi and others Vs. Union of India and
others (supra) the apex court held that the
appointments were found to have been
made dehors the rules and by not appointed
by the Governor according to rules and
they do not become the members of service
in substantive capacity and continuous
length adhoc services and thus it was held
that continuous length of adhoc service
from the date of initial appointment cannot
be counted towards seniority.

27. We are in agreement of the
argument
of
learned
counsel
for
petitioners/respondents 1 to 6 that the State
Government cannot have any grievance in
case selection of the most meritorious
candidates is made from the large number
of candidates especially in view of the fact
that the Rules 2006 has been enacted to
grant of relaxation in qualifying service in
case the adequate number of candidates are
not available for being considered for
promotion. The state Government cannot
act arbitrarily by denying to invoke the
Rules 2006 and it is not the discretion of
the State Government to invoke the Rules
2006 as and when it pleases, the rule is
mandatory and has an overriding effect
over the Rules 1990.

28. The Apex Court in the case of
Rajendra Kumar Aggarwal Vs. State of
U.P. and others (supra) has held as under:-

"23. So far as the present case is
concerned we do not find any material to
show that the State Government or the
Parishad resorted to exercise of power
under Regulation 20 for some unauthorized
or oblique purpose. The allegation that it
was only to benefit Rajendra Kumar
Agrawal is ex facie incorrect because
relaxation was beneficial for three officers
who all were senior to Narsingh Prasad.
There is no material to support the
allegation that Rajendra Kumar Agrawal
10 INDIAN LAW REPORTS ALLAHABAD SERIES
was responsible for the decision by the State
Government or the Parishad on account of
any political or other influence over any
person. To us, the exercise of power of
relaxation appears to be in the interest of
Parishad because the post of Chief Engineer,
as held by this Court in earlier proceeding, is
a single post of considerable importance. The
enlargement of zone of consideration with
addition of relatively senior persons would
only benefit the public cause by enabling
selection of most meritorious person from a
larger group of eligible persons. Hence in the
facts of the case, we are of the considered
view that the High Court erred in inferring
that the relaxation was for some dubious
reasons or to benefit Rajendra Kumar
Agrawal."

29. In the above case the Apex Court
has held that enlargement of zone of
consideration with addition of relatively
senior persons would only benefit the
public cause by enabling selection of most
meritorious person from a larger group of
eligible persons. In this case also the zone
of consideration has been enlarged by
adding six more persons so as to enable the
State to select the most meritorious persons
for the promotional post of Chief Engineer
and thus, we are of the view that the State
Government
cannot
be
aggrieved
as
addition of some more meritorious persons
in the select list would only benefit the
public interest as held by the Apex Court in
the aforesaid matter.

30. In view of the aforesaid
discussions, we find that there is no
illegality in the judgment impugned and
also find that special appeal lacks merit and
is accordingly dismissed.

No order as to cost.
----------
(2020)08ILR A10
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2020

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal Defective No. 206 of 2020

Md. Arshad Khan ...Applicant
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Sri Awadh Narain Rai

Counsel for the Respondents:
C.S.C.

A. Scope - Intra-Court Special Appeal -
Matters relating to the medical evaluation
of candidates in a recruitment process
involve expert determination and the
Court
should
exercise
caution
in
supplanting the process adopted by the
recruiting agency and substituting it by a
Court
mandated
further
medical
evaluation. Any exercise of reassessment
on the basis of procedures other than
those envisaged by the recruiting agency
under the relevant rules would hamper
the recruitment process. (Para 8)
In the instant case the Court did not find decision of
the Medical Board to be arbitrary, capricious or not in
accordance with the relevant statutory recruitment
rules therefore interference with the impugned order
is not required. (Para 15)
Special Appeal rejected. (E-10)

List of cases cited:-

1. Vivek Kumar Vs St. of U.P. & ors. Special
Appeal Defective no. 117 of 2020

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)