Case: State of U.P. &amp; Ors Vs. Vikash Kumar Singh &amp; Ors

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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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.