# STATE OF U.P. & ORS v. VIKASH KUMAR SINGH & ORS

- **Citation:** [2021] 7 S.C.R. 359
- **Court:** Supreme Court of India
- **Decided:** 2021-11-22
- **Case number:** Civil Appeal No. 6868 of 2021
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-ors-v-vikash-kumar-singh-ors-34914
- **Pages:** 7

## Headnote

Service Law: Promotion of Superintending Engineer to the
post of Chief Engineer (Civil) Level-II - Promotion to the post of
Chief Engineer (Civil) Level-II is governed by U.P. Service of
Engineers (Irrigation Department) (Group A) Service Rules, 1990
- As per r.5(iii) of Rules, 1990, promotion to the post of Chief
Engineer shall be from amongst the substantively appointed
Superintending Engineers who have completed 25 years of service
- Original writ petitioners-Superintending Engineers were not
considered for promotion as they had not completed 25 years of
service as required by Rules of 1990 - High Court quashed the
eligibility lists and issued writ of mandamus commanding the
competent authority to grant relaxation in qualifying service, which
as such was permissible under r.4 of the Relaxation Rules, 2006 -
Hence instant appeal - Held: It is an admitted position that the
original writ petitioners did not fulfill the eligibility criteria having
not completed 25 years of service - The eligibility lists were prepared
by the department absolutely as per r.5(iii) and r.8(iii) of the Rules,
1990 - 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 Rules, 1990 - The word used in r.8 of
Relaxation Rules, 2006 is "May" - Therefore, the relaxation may
be at the discretion of the competent authority and cannot be prayed
as a matter of right - If a conscious decision is taken not to grant
the relaxation, merely because Rule permits relaxation, no writ of
mandamus can be issued directing the competent authority to grant
relaxation in qualifying service - High Court committed a grave
error in issuing the writ of mandamus - U.P. Government Servants
Relaxation in Qualifying Service for Promotion Rules, 2006 - r.4 -
U.P. Service of Engineers (Irrigation Department) (Group A) Service
Rules, 1990 - r.5(iii).
[2021] 7 S.C.R. 359
359
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
Allowing the appeal, the Court
HELD: 1. The eligibility lists were prepared by the
department absolutely as per Rule 5(iii) and Rule 8(iii) of the
Rules, 1990. 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 Rules,
1990. 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 Rules, 1990. [Para 7][364-GH; 365-A]
2. The word used in the Rule 8 of Relaxation Rules, 2006
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 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 18.03.2019
and 10.05.2019, which as such were prepared absolutely in
consonance with the Rules, 1990 and Rules, 2006. [Para 7.1][365B-E]

## Text

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STATE OF U.P. & ORS.
v.
VIKASH KUMAR SINGH & ORS.
(Civil Appeal No. 6868 of 2021)
NOVEMBER 22, 2021
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Service Law: Promotion of Superintending Engineer to the
post of Chief Engineer (Civil) Level-II - Promotion to the post of
Chief Engineer (Civil) Level-II is governed by U.P. Service of
Engineers (Irrigation Department) (Group A) Service Rules, 1990
- As per r.5(iii) of Rules, 1990, promotion to the post of Chief
Engineer shall be from amongst the substantively appointed
Superintending Engineers who have completed 25 years of service
- Original writ petitioners-Superintending Engineers were not
considered for promotion as they had not completed 25 years of
service as required by Rules of 1990 - High Court quashed the
eligibility lists and issued writ of mandamus commanding the
competent authority to grant relaxation in qualifying service, which
as such was permissible under r.4 of the Relaxation Rules, 2006 -
Hence instant appeal - Held: It is an admitted position that the
original writ petitioners did not fulfill the eligibility criteria having
not completed 25 years of service - The eligibility lists were prepared
by the department absolutely as per r.5(iii) and r.8(iii) of the Rules,
1990 - 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 Rules, 1990 - The word used in r.8 of
Relaxation Rules, 2006 is "May" - Therefore, the relaxation may
be at the discretion of the competent authority and cannot be prayed
as a matter of right - If a conscious decision is taken not to grant
the relaxation, merely because Rule permits relaxation, no writ of
mandamus can be issued directing the competent authority to grant
relaxation in qualifying service - High Court committed a grave
error in issuing the writ of mandamus - U.P. Government Servants
Relaxation in Qualifying Service for Promotion Rules, 2006 - r.4 -
U.P. Service of Engineers (Irrigation Department) (Group A) Service
Rules, 1990 - r.5(iii).
[2021] 7 S.C.R. 359
359
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
Allowing the appeal, the Court
HELD: 1. The eligibility lists were prepared by the
department absolutely as per Rule 5(iii) and Rule 8(iii) of the
Rules, 1990. 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 Rules,
1990. 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 Rules, 1990. [Para 7][364-GH; 365-A]
2. The word used in the Rule 8 of Relaxation Rules, 2006
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 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 18.03.2019
and 10.05.2019, which as such were prepared absolutely in
consonance with the Rules, 1990 and Rules, 2006. [Para 7.1][365B-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6868 of
2021.
From the Judgment and Order dated 24.07.2020 of the High Court
of Judicature at Allahabad, Lucknow Bench in Special Appeal
(Defective) No.187 of 2020.
Sakha Ram Singh, Sr. Adv., Rajeev Kumar Pandey, Ashiwan
Mishra, Kamlendra Mishra, Advs. for the Appellants.
Rana Mukherjee, Sr. Adv., Abhijit Banerjee, Advs. for the
Respondents.
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The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 24.07.2020 passed by the Division Bench of the High
Court of Judicature at Allahabad (Lucknow Bench) by which the Division
Bench of the High Court has dismissed the Special Appeal (Defective
Complaint No.187 of 2020) filed by the appellants herein- State of U.P.
and Others confirming the judgment and order passed by the learned
Single Judge quashing and setting aside 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 from the department and
further issuing a writ of mandamus, commanding the appellants -
competent authority to prepare the eligibility list of the Superintending
Engineer (Civil) including the names of the respondents - original writ
petitioners for promotion to the post of Chief Engineer (Civil) Level - II
by granting them relaxation in minimum length of service in accordance
with the U.P. Government Servants Relaxation in Qualifying Service for
Promotion Rules, 2006, the State of U.P. and others have preferred the
present appeal.
2. The facts leading to the present appeal in nutshell are as under:-
2.1 The respondents - original writ petitioners (hereinafter referred
to as the "original writ petitioners") are discharging their duties as
Superintending Engineers in different places. They claim promotion to
the post of Chief Engineer (Civil) Level-II. The recruitment to the post
of Chief Engineer (Civil) Level - II is governed by the U.P. Service of
Engineers (Irrigation Department) (Group A) Service Rules, 1990
(hereinafter referred to as "Rules, 1990"). As per Rule 5(iii) of the said
Rules, promotion to the post of Chief Engineer shall be from amongst
the substantively appointed Superintending Engineers in the Civil or
Mechanical Branch, as the case may be, who have completed twenty
five (25) years of service (including at-least three years' service as
Superintending Engineer) on the first day of the year of recruitment. As
per the Office Circular dated 22.03.1984 issued by the State Government
laying out the guidelines for selection/promotion to the posts within the
purview of the Public Service Commission, the criteria for promotion
shall be merit. The State Government have also framed the U.P.
Government Servant Relaxation in Qualifying Service for Promotion
STATE OF U.P. & ORS. v. VIKASH KUMAR SINGH & ORS.
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
Rules, 2006 (hereinafter referred to as "the Relaxation Rules, 2006"),
which prescribe that in case the required number of eligible persons are
not available in the field of eligibility, the prescribed minimum length of
service may be relaxed upto 50% by the Government in the
Administrative Department in consultation with the Personnel Department
excluding the period of probation.
2.2 The appointing authority determined 26 vacancies of Chief
Engineer (Civil) Level-II for the Recruitment Year 2018-2019. The
eligibility list was to be prepared in terms of Rule 4 of Uttar Pradesh
Promotion by Selection (on posts outside the purview of Public Service
Commission) Eligibility List Rules, 1986 (hereinafter referred to as "Rules,
1986") containing the names of the senior most candidates, as far as
possible, three times the number of vacancies. Since there were 26
vacancies of Chief Engineer determined as per Rules, 1986, totaling 78
Superintending Engineers (Civil) were eligible to be considered for
promotion to the post of Chief Engineer.
2.3 On 23.07.2018, an eligibility list of Recruitment Year 20182019 of 74 Superintending Engineer (Civil) was prepared. The names of
the original writ petitioners found place at Sl. Nos. 60, 63, 64, 67, 72 and
74. However, as they had not completed 25 years of service, which was
the requirement as per the Rules, 1990, their cases were not considered
for promotion. Again on 07.03.2019, a revised eligibility list for the
Recruitment Year 2018-2019 of 59 Superintending Engineers (Civil) was
prepared and the names of the original writ petitioners were excluded
on the ground that they had not completed 25 years of service. Again on
18.03.2019, another revised eligibility list for the Recruitment Year 20182019 of 44 Superintending Engineer (Civil) was prepared in which also
the names of the original writ petitioners were excluded. Lastly on
10.05.2019, one other revised list of 41 Superintending Engineers (Civil)
was prepared excluding the names of the original writ petitioners.
Therefore, the original writ petitioners preferred Writ Petition No.14962
(S/S) of 2019 assailing before the High Court the eligibility lists dated
18.03.2019 and 10.05.2019 of the Superintending Engineer (Civil) for
promotion to the post of Chief Engineer (Civil) Level-II in the Department
of Irrigation and Water Resources mainly on the ground that they were
entitled to the relaxation in minimum qualifying service as per Relaxation
Rules, 2006. By judgment and order dated 11.12.2019, the learned Single
Judge issued the writ of mandamus commanding the competent authority
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to prepare the eligibility list of Superintending Engineer (Civil) including
the names of the original writ petitioners for promotion to the post of
Chief Engineer (Civil) granting them relaxation in minimum length of
service in accordance with Relaxation Rules, 2006 as amended in the
year 2013. Consequently, the learned Single Judge quashed and set aside
the eligibility lists dated 18.03.2019 and 10.05.2019 of Superintending
Engineer for promotion to the post of Chief Engineer.
2.4 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge, the State of U.P. filed the Special
Appeal before the Division Bench and by the impugned judgment and
order, the Division Bench of the High Court has dismissed the special
appeal and has confirmed the judgment and order passed by the learned
Single Judge.
3. Shri Sakha Ram Singh, learned Senior Advocate has appeared
on behalf of the appellants and Shri Rana Mukherjee, learned Senior
Advocate has appeared on behalf of the respondents - original writ
petitioners.
4. Shri Sakha Ram Singh, learned Senior Advocate appearing on
behalf of the State has vehemently submitted that admittedly the original
writ petitioners did not fulfil the eligibility criteria as contained in Rule
5(iii) of the Rules, 1990. It is submitted that therefore the names of the
original writ petitioners were rightly excluded from the eligibility list of
Superintending Engineer (Civil) for the promotion to the post of Chief
Engineer (Civil). It is submitted that as such the eligibility list prepared
by the competent authority were in conformity with the provisions as
contained in Rule 5(iii) of the Rules, 1990.
4.1 It is submitted that grant of relaxation under the Relaxation
Rules, 2006 is discretionary and no writ of mandamus can be issued
directing the competent authority to grant the relaxation. It is submitted
that word used in Rule 4 of Relaxation Rules, 2006 is 'MAY' and only in
a case where the required number of eligible persons are not available in
the field of eligibility. It is submitted that no employee can claim the
relaxation as a matter of right.
4.2 It is therefore submitted that as admittedly the original writ
petitioners did not fulfil the eligibility criteria of having completed 25
years of service, their names were not required to be included in the
eligibility list for promotion to the post of Chief Engineer. It is submitted
STATE OF U.P. & ORS. v. VIKASH KUMAR SINGH & ORS.
[M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
that the High Court has erred in quashing and setting aside the eligibility
lists dated 18.03.2019 and 10.05.2019, which as such were in absolute
consonance with the statutory provisions of Rule 5(iii) and 8(iii) of the
Rules, 1990.
4.3 Making above submissions, it is prayed to allow the present
appeal.
5. Present appeal is opposed by Shri Rana Mukherjee, learned
Senior Advocate appearing on behalf of the respondents - original writ
petitioners. It is submitted that in the facts and circumstances of the
case and on giving cogent reasons the learned Single Judge rightly issued
the writ of mandamus commanding the appellants - competent authority
to grant relaxation to the original writ petitioners. It is submitted that the
learned Single Judge rightly considered that the eligibility list has to be
prepared applying the ratio of 1:3 so as to have more meritorious
candidates. It is therefore submitted that as solely on technical ground
of not completing 25 years of service, the names of the original writ
petitioners were excluded and there are specific Relaxation Rules, 2006,
which provide for relaxation in qualifying service, the High Court has
not committed any error in issuing the writ of mandamus to grant the
relaxation as per Rule 4 of the Relaxation Rules, 2006.
6. We have heard the learned Senior Advocates appearing for the
respective parties at length.
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 Relaxation Rules, 2006 in
qualifying service and consequently has quashed and set aside the
eligibility lists dated 18.03.2019 and 10.05.2019. At the outset, it is required
to be noted that as such as per Rule 5(iii) of the Rules, 1990, 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 fulfill 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 Rule
5(iii) and Rule 8(iii) of the Rules, 1990. 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
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they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules,
1990. 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 Rules, 1990.
7.1 The learned Single Judge thereafter while quashing and setting
aside the eligibility lists dated 18.03.2019 and 10.05.2019 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 Relaxation Rules, 2006. The word used in the Rule
4 of Relaxation Rules, 2006 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 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 18.03.2019 and 10.05.2019, which as such were prepared absolutely
in consonance with the Rules, 1990 and Rules, 2006. 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 Special Appeal (Defective Complaint No.
187 of 2020) and the judgment and order passed by the learned Single
Judge dated 11.12.2019 passed in Writ Petition No. 14962(S/S) of 2019
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. Present appeal is allowed accordingly, however, there
shall be no order as to costs. Pending applications, if any, also stand
disposed of.
Devika Gujral
Appeal allowed.
STATE OF U.P. & ORS. v. VIKASH KUMAR SINGH & ORS.
[M. R. SHAH, J.]