JUDGMENT Hon. Barin Ghosh, C.J. (Oral) The Uttar Pradesh Water Supply and Sewerage Act, 1975 authorizes establishment of Jal Sansthans as Body Corporates having perpetual succession. The said Act authorizes Jal Sansthans, with the previous approval of the Government, to create posts and give appointments to such posts. The Act authorizes the Government to make Centralized Service of those employees, who are employees, amongst others, of Jal Sansthans. On 23rd November 1996, the Government of Uttar Pradesh made the Uttar Pradesh Palika and Jal Sansthans Water Works Engineering (Centralized) Service Rules, 1996. While making said Rules, only General Managers of Jal Sansthans, Executive Engineers of Jal Sansthans and Assistant Engineers of Jal Sansthans, belonging to Uttar Pradesh Palika and Jal Sansthans Water Works Engineering (Centralized) Service were brought within Centralized Service. As a result Superintending Engineers, even if working in Jal Sansthans, were not brought within the purview of Centralized Service. 2. Rule 21 of the said Rules provided that recruitment by promotion shall be made through a Selection Committee on the basis of seniority subject to rejection of unfit from amongst all eligible officers of the next lower grade of the same Centralized Service and for that purpose an eligibility list of officers shall be prepared in the manner as prescribed in sub-Rule (2) thereof. Sub-Rule (2) directed preparation of a list of twice the number of vacancies subject to a minimum of 5, when the vacancies are for 1 to 5 and, for over 5 vacancies one and half time the number of vacancies subject to a minimum of 10. 3. On 9th November 2000, the State of Uttar Pradesh was bifurcated to create the State of Uttarakhand by the Uttar Pradesh Re-organization Act, 2000, when the concept of Centralized Service in terms of the said Rules to a great extent came to an end as the people attached to Jal Sansthans, situate in both the said States, became permanently attached to those States. 4. It appears that 13 posts of Superintending Engineer in Jal Sansthans situate within the State of Uttarakhand were created. It also appears that the State of Uttarakhand adopted the said Centralized Service Rules in order to bring the employees working in the Jal Sansthans situate within the State of Uttarakhand within the purview of the said Rules. 4. It appears that 13 posts of Superintending Engineer in Jal Sansthans situate within the State of Uttarakhand were created. It also appears that the State of Uttarakhand adopted the said Centralized Service Rules in order to bring the employees working in the Jal Sansthans situate within the State of Uttarakhand within the purview of the said Rules. In that view of the matter, the officers of the State of Uttarakhand as well as the officers of the Jal Sansthans, situate in the State of Uttarakhand, proceeded on the basis that in the matter of supplying vacancies in those posts of Superintending Engineer recourse to promotion shall be taken and, existing Executive Engineers shall alone be entitled to be promoted to those posts on the basis of seniority subject to rejection of unfit. 5. Inasmuch as, the said Rules did not deal with Superintending Engineers, the said Rules did not deal with the eligibility of people to be appointed as Superintending Engineers. However, on 24th May 1979, an administrative order was issued, whereby and under, it was held out to all Local Bodies, including Jal Sansthans, that an Executive Engineer, who has served over 15 years as Assistant Engineer and Executive Engineer shall alone be entitled to be promoted to the post of Superintending Engineer. Therefore, in the matter of giving promotion to the posts of Superintending Engineer available in the Jal Sansthans situate within the State of Uttarakhand, the State and the Jal Sansthans proceeded on the basis that, while the criteria for promotion shall be seniority subject to rejection of unfit of all eligible Executive Engineers; an Executive Engineer would be eligible for being considered for promotion to the post of Superintending Engineer when he has served for 15 years as Assistant Engineer and Executive Engineer. Proceeding on that basis, on 18th September 2004, 10 Executive Engineers were promoted to available 13 posts of Superintending Engineers. The remaining 03 posts of Superintending Engineer could not be supplied, inasmuch as, those 03 posts were reserved in accordance with the reservation policy of the State Government for Scheduled Caste and Scheduled Tribe communities and as no member of such community was eligible on the yardstick of 15 years service as Assistant Engineer and Executive Engineer. Private respondents herein belong to Scheduled Caste community. Private respondents herein belong to Scheduled Caste community. They were the senior most amongst the Scheduled Caste Executive Engineers working in Jal Sansthans situate within the State of Uttarakhand. They felt that they could have been promoted to the reserved posts of Superintending Engineer. They, accordingly, made representation not only to the Jal Sansthans, but also to the Government. Those yielded no result. They, accordingly, made representation before the Scheduled Caste and Scheduled Tribe Commission, Uttarakhand. Accepting the contentions of the private respondents to be of some substance, the said Commission called upon the Government to take into account the claim of the private respondents. The Government rejected the claim of the private respondents holding out that they did not have the basic minimum required eligibility for being promoted. 6. On 18th September 2004, while the private respondents did not have the basic minimum eligibility of being promoted to the post of Superintending Engineer, the petitioners also did not have such basic eligibility, for none of them had served for 15 years as Assistant Engineer and Executive Engineer. In 2006 petitioners became eligible, for in that year, they completed 15 years of service as Assistant Engineers and Executive Engineers. 7. Be that as it may, the next Departmental Promotion Committee sat on 25th November 2000. By that time, out of those 10 Superintending Engineers, who had been selected for being promoted on 18th September 2004, 04 had demitted their office and, accordingly, 04 vacancies were available for candidates belonging to General category. On 25th of November 2010, 03 vacancies, reserved for Scheduled Caste and Scheduled Tribe communities were also lying vacant, which could not be supplied on 18th September 2004. As on 25th of November 2010, the petitioners were eligible for being considered for promotion. They came within the zone of consideration. Their cases were considered, but having regard to their position in the seniority, they could not be selected. Seniors to them, being otherwise eligible, were promoted in those 04 posts, which were available for candidates belonging to General category. 8. On 25th November 2010, private respondents, as aforesaid, both belonging to Scheduled Caste, completed respectively, 12 and 13 years of service as Assistant Engineers and Executive Engineers. Out of 03 posts, 02 were reserved for Scheduled Caste candidates and 01 for Scheduled Tribe candidates. 8. On 25th November 2010, private respondents, as aforesaid, both belonging to Scheduled Caste, completed respectively, 12 and 13 years of service as Assistant Engineers and Executive Engineers. Out of 03 posts, 02 were reserved for Scheduled Caste candidates and 01 for Scheduled Tribe candidates. The posts which were reserved for Scheduled Caste candidates were recommended to be supplied by the private respondents. The recommendation of Selection Committee has been accepted by the Government and, accordingly, the private respondents have been promoted to the posts of Superintending Engineer. Subsequent thereto, one of the private respondents has been promoted to the post of General Manager, a post equivalent to Chief Engineer II, on ad hoc basis. 9. In the writ petition it is being contended by the petitioners that, the private respondents could not be promoted, inasmuch as they did not have the prescribed minimum eligibility as on the date they were recommended for being promoted. 10. There is no dispute that on 25th November 2010, none of the private respondents had completed 15 years of service as Assistant Engineer and Executive Engineer and, at the same time there is no dispute that on 24th May 1979, the Government had stipulated that the basic minimum eligibility for anyone to be promoted to the post of Superintending Engineer should be 15 years service to his credit as Assistant Engineer and Executive Engineer. In the circumstances, the question is whether, the promotion as was recommended and accepted, can in the facts and circumstances be said to be outside the purview of the power and, accordingly, void ab initio. 11. There is no dispute that, on 14th August, 2003 an administrative order was issued by the Government, whereby and under, Selection Committees constituted for selecting candidates to be promoted on the criteria ‘seniority by ignoring the unfit’ were authorized to relax the standard for measurement of eligibility criteria in the case of Scheduled Castes and Scheduled Tribes, but at the same time there is no dispute that, the Selection Committee on 25th November 2010, did not record in their proceedings that they are exercising such powers and the State also while accepting the said recommendation did not hold out that the Selection Committee had power to relax in terms of the said administrative order dated 14th August 2003, and the Selection Committee has duly exercised such power. 12. 12. In the circumstances, two fold submissions have been made. One is that, the power of relaxation given by the administrative order dated 14th August, 2003, is discriminatory and, second that, the power being discretionary, it was obligatory to exercise such discretion upon recording reasons in support thereof and, in the instant case, there is not even a mention that the power is being exercised. 13. It appears that the discrimination highlighted is failure to treat everybody at par and, to make a classification for Scheduled Caste and Scheduled Tribe candidates only and, there is no intelligible differentia to achieve the object sought to be achieved by making such classification. It was contended that the said order itself notes the provisions contained in Article 335 of the Constitution of India, which directs amongst others, that the claims of Scheduled Caste and Scheduled Tribe communities cannot be taken into consideration at the cost of efficiency of administration. It was submitted that the said Article authorizes relaxation in qualifying marks in an examination or lowering the standard of evaluation, but not other eligibility. It was further submitted that, when a decision was taken to empower relaxation of the standard for measurement of eligibility criteria, it could not remain confined only to Scheduled Caste and Scheduled Tribe candidates. It was submitted that, therefore, the said administrative order dated 14th August 2003, is of no effect. We have not been able to cull out any differentiation by and under the said order, although the advantage of the said order is available only to Scheduled Caste and Scheduled Tribe candidates. The fact remains that, the said administrative order dated 14th August 2003, was in relation to selection, where the criteria for selection is seniority by ignoring the unfit. When, therefore, seniority alone is the criteria, but people belonging to Scheduled Caste and Scheduled Tribe by reason of not being senior are denied of promotions, only in those cases the order dated 14th August, 2003 applies. That is also for the purpose of maintaining efficiency of the administration, for many a posts reserved for Scheduled Caste and Scheduled Tribe candidates would remain vacant in the event, even on the basis of seniority, members belonging to the said communities do not come within the zone of consideration. 14. That is also for the purpose of maintaining efficiency of the administration, for many a posts reserved for Scheduled Caste and Scheduled Tribe candidates would remain vacant in the event, even on the basis of seniority, members belonging to the said communities do not come within the zone of consideration. 14. It was submitted that assuming the said order dated 14th August, 2003 is otherwise valid, the fact remains that, by reason of the said order merely a discretion was given and, while exercising discretion, it was necessary to consider whether the facts and circumstances do require exercise of such discretion. There cannot be any dispute to the proposition thus put forward. A discretionary power of the nature considered here can only be exercised in the interest of justice and efficiency of administration. There must be good reasons to exercise such discretion, but at the same time it is not necessary to record those reasons. If those reasons are available on the record, the court will be very slow to interfere with user of such discretion. 15. In the instant case, from the date of creation of the State until 25th of November, 2010 i.e. for a period slightly over 10 years, no member of the Scheduled Caste community served in the post of Superintending Engineer, whereas at least 10 people belonging to General category served in the said posts. On the basis of the strict eligibility standard, even on 25th November 2010, no member of the Scheduled Caste could serve in the posts in question. The first member of the Scheduled Caste would become eligible to serve in the post only in the year 2012. The posts reserved for Scheduled Castes were kept vacant from 2004 to 2010, for 06 years. One of the said posts was required to be kept vacant till 2012, and the other at least till 2013. As on 25th November 2010, 15 years service by the private respondents were not complete, but as aforesaid, they had by then completed 12-13 years of service. In the interest of the efficiency of administration, if 02 years / 03 years of non service was waived to fill up those posts, which could only be filled up by a class of people and not by others, it cannot be said that exercise of discretion in that direction was improper. 16. In the interest of the efficiency of administration, if 02 years / 03 years of non service was waived to fill up those posts, which could only be filled up by a class of people and not by others, it cannot be said that exercise of discretion in that direction was improper. 16. The learned counsel for the petitioners submitted that having regard to non availability of candidates belonging to the reserved category, those posts could be supplied by the petitioners. We don’t accept, inasmuch as, even according to the own showing of the petitioners, effort made on 25th November 2010, was the second effort made and, having regard to the practice, the third effort would be made in 2016, inasmuch as, there had been a gap of 06 years between 2004 and 2010 in making effort to ascertain suitable candidates for being promoted, and by that time even according to the petitioners, both the private respondents would become eligible. 17. It was lastly contended that such reservation was not available in view of the judgment rendered by the Hon’ble Supreme Court in the case of M. Nagaraj and others vs. Union of India and others, reported in (2007) 1 Supreme Court Cases (L&S) 1013. We only say that, by the said judgment, the Hon’ble Supreme Court has not struck down or postponed reservation in the promotional posts. It upheld such reservation. While doing so, it has pronounced that the extent of reservation shall be valid when the basis of backwardness and adequate representation has been taken into account read with efficiency in the administration. Therefore, it was obligatory on the part of the petitioners to independently challenge reservation in those 03 posts. The petitioners have not done so. Assuming the petitioners have done so, but as has been held in the said case by the Hon’ble Supreme Court, it would be our responsibility to ascertain whether the State has failed to identify and implement the controlling factors, as highlighted in the said judgment, in order to ascertain excessiveness in the matter of reservation. In the judgment, Hon’ble Supreme Court has highlighted backwardness as one of the controlling factors, whereas in the instant writ petition it has not even been indicated as to which community the private respondents belong, in order to enable us to ascertain the backwardness of the said community. In the judgment, Hon’ble Supreme Court has highlighted backwardness as one of the controlling factors, whereas in the instant writ petition it has not even been indicated as to which community the private respondents belong, in order to enable us to ascertain the backwardness of the said community. In so far as adequate representation is concerned, we have already indicated that, for ten years not one single member of the community, to which the private respondents belong, got an opportunity to serve in the post of Superintending Engineer. Further there is no assertion that proportionate representation, taking into account all available posts, there is excessive reservation. In the circumstances, can it be said that on the facts available to this court, the court can go into the question of excessiveness of reservation. Lastly, Hon’ble Supreme Court referred to efficiency in the administration. The fact remains that despite the State sanctioning 13 posts of Superintending Engineers, for non availability of reserved category candidates, 03 of them could not be filled up for 10 years and, accordingly, it stands established that efficiency of the administration suffered. We are not inclined to go into the question 13 whether one of the private respondents, who has been promoted on ad hoc basis to the post of General Manager purporting to be on the basis of Scheduled Caste quota, could be promoted on the analogy that such quota is not applicable to ad hoc promotions, inasmuch as, petitioners cannot be said to be aggrieved thereby, as they have not yet acquired the eligibility of being appointed by promotion, on ad hoc or otherwise basis, to the post of General Manager, as they have not yet been promoted to the post of Superintending Engineer. It, therefore, goes without saying that, in the event, the petitioners acquire eligibility to be promoted as such, it shall be open to them to agitate the same, if till then the cause of action of the petitioners remains intact. With the observations as above, we dispose of the writ petition without any interference.