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2018 DIGILAW 545 (ALL)

SANJEEV KUMAR v. STATE OF U. P.

2018-03-06

RAJNISH KUMAR, SATYHENDRA SINGH CHAUHAN

body2018
JUDGMENT Hon’ble Rajnish Kumar, J.—The petitioners seven in number, have approached to this Court challenging the order dated 27.6.2017 and order of promotion passed by the State Government dated 3.7.2017 of respective juniors to the petitioners. The petitioners have further prayed for a direction to the opposite parties No. 1 to 3 to consider and on being found fit, to promote the petitioners 1 to 7, respective seniors to the opposite parties No. 5 to 19 against the 16 post of Executive Engineer (Mech.) kept reserved in order of date 27.6.2017 with effect from the date of promtion of respective juniors, i.e. 3.7.2017 with all consequential benefits. 2. Heard Sri Sanjai Bhasin and Sri Hemendra Pratap, learned counsel for the petitioners as well as Sri Asit Kumar Chaturvedi, Senior Advocate, assisted by Sri Dhirendra Kumar Misra, Sri Shobhit Mohan Shukla and Sri Jayveer Rajput, learned counsel for the opposite parties. 3. The facts as culled out from the pleadings for the disposal of present controversy are that the post of Assistant Engineer (Mech.) in the Irrigation Department of the State Government is governed by Services Rules, i.e. the Uttar Pradesh Service of Engineers (Irrigation Department) (Group “B”) Service Rule, 2007 framed under Article 309 of Constitution of India notified on 16.11.2007. As per the appendix in the said rules, there are 614 posts of Assistant Engineer (Mech.), out of which 350 are permanent and 264 are temporary. Out of the said posts 50.67% are reserved to be filled by direct recruitment, i.e. 311 posts through U.P. Public Service Commission. 4. U.P. Public Service Commission issued an advertisement in the year 2007 to fill up the vacancies of direct recruitment reserved to be filled from the degree holders of Mechanical Engineers. The petitioners and other candidates fulfilling the conditions prescribed, applied for the posts. After the written examination and interview, the selection was completed by the Public Service Commission and the list of successful candidates, in order of their proficiency, as disclosed by aggregate of marks obtained by each candidate in the written and interview was issued. In pursuance thereof the Public Service Commission sent its recommendations to the State Government. The Assistant Engineer (Mech.) selected by the U.P. Public Service Commission against the said quota, in order of proficiency and the same in respect of petitioners and opposite parties No. 4 to 19, were arranged in the following manner: 1. In pursuance thereof the Public Service Commission sent its recommendations to the State Government. The Assistant Engineer (Mech.) selected by the U.P. Public Service Commission against the said quota, in order of proficiency and the same in respect of petitioners and opposite parties No. 4 to 19, were arranged in the following manner: 1. S/Sri Gaurav Singh 2. Sanjeev Kumar 3. Rishi Raj Khullar 4. Rajesh Upadhyay 5. Yash Kumar 6. AbdulKalam Azad 7. Shiv Kumar Gupta 8. Mohd. Saha Nawaz Siddiqui 9. Sharad Chandra 10. Sanjai Kumar 11. Jagannath Prasad 12. Raj Kumar Pandey 13. Ashutosh Kumar Singh 14. Shailendra Kumar Yadav 15. Harish Kumar Sharma 16. Jai Prakash Ojha 17. Amar Nath Mishra 18. Surjeet Kumar Singh 19. Salil Kumar 20. Arvind Kumar 21. Rakesh Kumar 22. Arun Babu Gupta 23. Amit Singh 5. The candidates approved for appointment were directed to appear before Medical Board and thereafter, the orders of appointment of 16 persons were issued on 30.6.2012 and posting orders on 4.7.2012 in which besides the 7 petitioners, total 16 persons were appointed on the post of Assistant Engineer (Mech.). The list so drawn was in order of proficiency as per Rule 15 of the Service Rules governing the posts. The petitioner No. 1 to 7 joined on the post between 5.7.2012 and 3.8.2012 and after completing one year training period successfully passed the examination. A final seniority list dated 4.5.2016 has been issued regarding the Assistant Engineer (Mech.). In the said seniority list, Assistant Engineer (Mech.) promoted from the post of Junior Engineer (Mech.) have been assigned seniority from serial numbers 1502 to 1523. 6. From the said seniority list, it is clear that the seniority of direct recruitee Assistant Engineer (Mech.) appointed against the appointment of the year 2007 have been determined on the basis of the select list provided by the Public Service Commission. 6. From the said seniority list, it is clear that the seniority of direct recruitee Assistant Engineer (Mech.) appointed against the appointment of the year 2007 have been determined on the basis of the select list provided by the Public Service Commission. It has been pointed by the learned counsel for the petitioners in the writ petition that the appointments have not been made as per the provisions of Rule 15(4) of the Service Rules as the appointment order of the persons at serial number 3, 4, 5, 6, 11, 12, 13, 15, 16, 20, 21, 22, 25, 27, 30 and 31 lower in proficiency in list drawn by the U.P. Public Service Commission, were appointed on 14.10.2011 and the petitioners 1 to 7 (except serial number 1471), who have been assigned higher proficiency vis.a.vis opposite parties 5 to 19 have been appointed vide order dated 30.6.2012. 7. The “U.P. Service of Engineers (Irrigation Department) (Group-”A”) Rules, 1990" provides for recruitment to the post of Executive Engineer (Civil/Mech.) on the basis of seniority subject to rejection of unfit from substantively appointed Assistant Engineer (Civil) and Assistant Engineer (Mech.) and so on. Rule 17 of the said rules provides for relaxation in the conditions of service. The said rules were amended by the “U.P. Service of Engineers (Irrigation Department) (Group-”A”) (Fifth Amendment) Rules, 2003" which provides selection on the post of Executive Engineer (Civil/Mech.) by promotion from amongst substantively appointed Assistant Engineers in the Civil/Mechanical, as the case may be, who have completed seven years service on the first day of the year of recruitment. Provided that if sufficient number of suitable or eligible persons are not available for promotion then for the first selection to be made after the commencement of “U.P. Service of Engineers (Irrigation Department) (Group-”A”) (Fifth Amendment) Rules, 2003", the field of eligibility may be extended to the Assistant Engineers in Civil/Mechanical as may be who have completed four years service on the first day of the year of recruitment. 8. 8. The opposite party No. 3 prepared an eligibility list for promotion on the post of Executive Engineer from Assistant Engineer (Mech.) against 36 vacant posts of recruitment year 2016-17, i.e. with effect from 1.7.2016 to 30.6.2017 which was one and half time, i.e. of 54 Assistant Engineer (Mech.) for promotion by providing relaxation in accordance with the “U.P. Government Servant relaxation in qualifying service for promotion Rules, 2006” which provides relaxation upto 50% excluding the period of probation as laid down for the said lower post or the post, as the case may be. By the Office Memorandum dated 27.6.2017, 15 posts have been reserved for Senior Officers as they were not eligible to be considered even for relaxation as per the rules and rest were granted relaxation. Accordingly, the petitioners were not considered for relaxation and thereafter, for promotion to the post of Executive Engineer while their respective juniors have been considered and promoted on the post of Executive Engineer vide order dated 3.7.2017 after granting relaxation in qualifying service vide Office Memorandum dated 27.6.2017 after granting relaxation in qualifying service vide Office Memorandum dated 27.6.2017. Accordingly, the petitioners are constrained to file the present writ petition. 9. Sri Sanjay Bhasin and Sri Hemendra Pratap, learned counsel for the petitioners submitted that petitioners 1 to 7 were appointed alongwith opposite parties 4 to 19 on the basis of one and the same selection through Public Service Commission but the appointment orders were issued on different dates by the State Government and on the basis of the same, the petitioners had joined on a subsequent date to their respective juniors as per the select list for which no fault can be attributed to them. Accordingly, as per the service rules while preparing the seniority list the name of the petitioners were kept at their respective places in the seniority list in order of their proficiency as determined by the Public Service Commission. Accordingly, now at the time of promotion the petitioners cannot be discriminated in the matter of promotion to the next higher post vis-a-vis to their respective juniors. Accordingly, now at the time of promotion the petitioners cannot be discriminated in the matter of promotion to the next higher post vis-a-vis to their respective juniors. He further submitted that none of the petitioners and opposite parties No. 4 to 19 were eligible for promotion to the post of Executive Engineer as per the Service Rules of 1990 as amended in 2003, as seven years of service on the first day of the year of recruitment is required for promotion to the next higher post of Executive Engineer and none of them were fulfilling the said experience. Accordingly, a proposal was prepared for granting relaxation for promotion on 38 vacant posts of the year 2016-17. In pursuance thereof, respondent Nos. 4 to 19 were granted relaxation to the extent of 50% in period of service under the U.P. Government Servant Relaxation in qualifying service for promotion Rules, 2006 vide Office Memorandum dated 27.6.2017 and 15 posts for Senior Officers have been kept vacant while there is no such provision under the Rules for keeping vacant posts for Senior Officers. 10. He further submitted that while considering for relaxation, the respondent Nos. 1 to 3 have failed to consider the amended provision of the aforesaid relaxation rules 2006 as amended in April 2013 which provides that if in special circumstances the Administrative Department finds out the justification of getting more than 50% relaxation in the minimum length of service prescribed for lower post or post, as the case may be, for promotion, then in such situation a proper proposal shall be submitted by the Administrative Department through Personnel Department through the Committee constituted under the Chairmanship of Chief Secretary as provided in the said rules and if the relaxation is granted the persons may be considered for promotion. The case in hand of the petitioners comes under the said category as special circumstances exists because on account of issuance of the appointment orders with delay, the petitioners could join subsequent to their respective juniors, i.e. opposite parties No. 4 to 19 for which no fault can be attributed to them and to remove this discrepancy the case of the petitioners should have been considered under the said provision as they are seniors in the seniority list as per the merit in pursuance of selection held by the Public Service Commission and they are over and above their respective seniority in the seniority list. Accordingly, they should have been considered and granted relaxation under the said provision and thereafter, considered and promoted. 11. He further submitted that in view of non consideration of the petitioners, despite being specific provision under the rules the petitioners will suffer irreparably throughout their career in all future promotions. Accordingly, the impugned orders are liable to be set aside and the petitioners are liable to be considered for promoted alongwith opposite parties Nos. 5 to 19 with all consequential benefits. 12. Sri Shobit Mohan Shukla, learned Standing Counsel appearing on behalf of the opposite parties No. 1 to 3 submitted that the promotion on the post of Assistant Engineer (Mech.) to the post of Executive Engineer (Mech.) is to be made in accordance with the Rules 1990 as amended upto 30.6.2016 for the recruitment year 2016-17. The eligibility list of the Assistant Engineer (Mech.) is specifically governed by Rule 5(i) of the said rules. There were total 36 vacancies of Executive Engineer (Mech.) for the recruitment year 2016-17. Accordingly, the eligibility list of 54 Assistant Engineer (Mech.) was prepared in accordance with the U.P. Promotion by Selection (on posts outside the purview of Public Service Commission) eligibility list Rules, 1986 as amended by 3rd Amendment Rules, 2012. The criteria for selection is seniority subject to rejection of unfit. Accordingly, the eligibility list of 54 Assistant Engineer (Mech.) was prepared in accordance with the U.P. Promotion by Selection (on posts outside the purview of Public Service Commission) eligibility list Rules, 1986 as amended by 3rd Amendment Rules, 2012. The criteria for selection is seniority subject to rejection of unfit. Out of the 54 Assistant Engineer (Mech.) in order of seniority, who are to be considered as on 1.7.2016, 38 Assistant Engineer (Mech.) including the petitioners were not eligible for grant of relaxation in terms of Rule 4 of Uttar Pradesh Government Servants Relaxation in Qualifying Service for Promotion Rules, 2006 read with its 1st Amendment Rules, 2013 and as they were granted relaxation after due consideration through Office Memorandum dated 27.6.2017, they were promoted vide notification dated 3.7.2017. Since, the petitioners were not eligible as on 1.7.2016 for grant of relaxation in terms of Rule 4 of the relaxation rules, 2006 read with 1st Amendment Rules, 2013, the petitioners cannot be said to be aggrieved and the writ petition is misconceived. 13. It has further been submitted that the petitioners would only be eligible for consideration for relaxation for the recruitment year 2017-18 as on 1.6.2017 and not prior to the same. As such, they cannot draw any comparison to respondent Nos. 4 to 19 as they constitute separate class and only 7 of 15 Assistant Engineer (Mech.) have filed the present writ petition and remaining have neither approached to this Court, nor impleaded in the present writ petition as respondents. 14. Further submission of learned Standing Counsel is that the case of the petitioners was also considered alongwith others for relaxation as no special circumstance exists and if 15 remaining senior Assistant Engineers are granted relaxation more than 50%, then there would be shortage of Assistant Engineers in the department. Accordingly, in the interest of the department and keeping the right of petitioners reserve, a decision was taken to keep vacant the 15 posts for the senior persons. Learned Standing Counsel submitted that the expression “Special Circumstance” is to be construed in reference to Public Exigency, meaning thereby if circumstances are such, that to perform the business of entire system there is an emergent need for promotion to certain incumbents. Learned Standing Counsel submitted that the expression “Special Circumstance” is to be construed in reference to Public Exigency, meaning thereby if circumstances are such, that to perform the business of entire system there is an emergent need for promotion to certain incumbents. Only in such situation the powers bestowed by First Proviso to Rule 4 can be invoked and the seniority of public servant cannot be a criteria for invoking of the special powers under proviso, particularly when the posts have been kept reserved for such seniors. 15. Learned Standing Counsel further submitted that the petitioners could not be effected in any manner in the future promotions as the chance of consideration for promotion on the next post of Superintending Engineer would come when the petitioners and the respondents will be having 18 years of full service including 6 years of service as Executive Engineer. Learned Standing Counsel further pointed out that the case of the petitioners alongwith other eligible persons has been forwarded for consideration for the recruitment year 2017-18. 16. The same has been denied by the counsel for the petitioners on the ground that whenever the chance of next promotion would come and the question of relaxation for service period will arise, the petitioners will again not be considered on account of having short of the period of service for consideration in relaxation of service. 17. Sri Asit Chaturvedi, Senior Advocate assistated by Sri Dhirendra Kumar Misra, learned counsel for the private respondent nos 4, 7, 10, 11 & 14 submitted that the respondent Nos. 4 to 19 were eligible as on 1.7.2016 for relaxation rules 2006 read with 1st Amendment Rules 2013. As such they were considered and granted relaxation and thereafter promoted vide notification darted 3.7.2017. The petitioners cannot be aggrieved persons for challenging the same as they were not eligible for consideration for relaxation. He further submitted that the petitioners have rightly been considered and promoted in accordance with law and there is no illegality or infirmity. Accordingly, the writ petition is misconceived and liable to be dismissed. 18. Similar arguments have been advanced by Sri Jayveer Rajput, learned counsel appearing for respondent Nos. 16 and 19. 19. We have considered the submissions of the parties and gone through the record. 20. The petitioners and the respondent Nos. Accordingly, the writ petition is misconceived and liable to be dismissed. 18. Similar arguments have been advanced by Sri Jayveer Rajput, learned counsel appearing for respondent Nos. 16 and 19. 19. We have considered the submissions of the parties and gone through the record. 20. The petitioners and the respondent Nos. 4 to 19 alongwith other incumbents were appointed on the basis of direct recruitment through Public Service Commission against the vacancies advertised in the year 2007. After medical examination and verification etc., the appointments were made. It seems that the respondent Nos. 4 to 19 and other similarly situated persons joined earlier to the petitioners as in respect of them the process of verification etc., was completed earlier and their appointment orders were issued on 4.10.2011. While the petitioners joined between 5.7.2012 to 3.8.2012 on the basis of the appointment order dated 30.6.2012 as in respect of them the aforesaid exercise could complete later on. Be that as it may, the petitioners were senior in order of proficiency as determined by Public Service Commission to respondent Nos. 4 to 19 hence, while preparing the seniority list, the names of the petitioners were put at their respective places in accordance with the merit prepared by the Public Service Commission. 21. The U.P. Service of Engineers (Irrigation Department) (Group-”A”) Rules, 1990 provides for recruitment for various categories and as per Rule 5(1), post of Executive Engineer, Civil or Mechanical is by promotion from substantively appointed Assistant Engineer (Civil) and Assistant Engineer (Mech.) As per rule 8(1) of the said rules, the criteria for promotion is seniority subject to rejection of unfit. Rule 17 provides relaxation in the conditions of service as per the sanction of the State Government. Rule 17 provides relaxation in the conditions of service as per the sanction of the State Government. The Rules 1990 were amended by the V Amendment Rules 2003 and as per the amended provision by which Rule 5(1) has been amended and the following rule has been substituted : “(i) Executive Engineer, Civil or Mechanical—By promotion from amongst substantively appointed Assistant Engineers in the Civil or Mechanical Branch, as the case may be, who have completed seven years service on the first day of the year of recruitment: Provided that if sufficient number of suitable or eligible persons are not available for promotion then or the first selection to be made after the commencement of the Uttar Pradesh Service of Engineers (Irrigation Department) (Group “A”) (Fifth Amendment) Rules, 2003 the filed of eligibility may be extended to include such substantively appointed Assistant Engineers in the Civil or Mechanical Branch, as the case may be, who have completed four years service on the first day of the year of recruitment.” In view of above 7 years service on the first day of the year of recruitment as Assistant Engineer is required to be considered for promotion on the post of Executive Engineer. 22. As admitted by the learned counsel for the parties, none of the Assistant Engineer (Mech.) was eligible to be considered for promotion on the post of Executive Engineer (Mech.) in the recruitment year 2016-17 against 36 vacant posts. Accordingly, a list of 54 Assistant Engineer (Mech.) including the petitioners and other similarly placed senior persons was prepared and a proposal was made for relaxation in period of service in accordance with U.P. Government Relaxation in qualifying service rules, 2006. While considering the case of the 54 persons for relaxation, respondent Nos. 4 to 19 were granted relaxation under the Rules 2006, but the petitioners were not and 15 posts have been kept reserved for the petitioners and other senior persons. 23. Therefore, the core question for consideration in the present writ petition is, whether the petitioners were entitled to be considered for relaxation for qualifying service for promotion under Relaxation Rules 2006 or not. Relevant Rule 4 was amended by U.P. Government Servants Relaxation in qualifying Service for Promotion (First Amendment) Rules, 2013, which is reproduced as under: “4. 23. Therefore, the core question for consideration in the present writ petition is, whether the petitioners were entitled to be considered for relaxation for qualifying service for promotion under Relaxation Rules 2006 or not. Relevant Rule 4 was amended by U.P. Government Servants Relaxation in qualifying Service for Promotion (First Amendment) Rules, 2013, which is reproduced as under: “4. 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 required number of eligible persons are not available in the field of eligibility, such prescribed minimum length of service may be suitably relaxed upto fifty percent by the Government in the Administrative Department in consultation with the Personnel Department of the Government, excluding the period of probation as laid down for the said lower post or posts, as the case may be: Provided that : (I) 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: (i) Chief Secretary....Chairman (ii) Principal Secretary/Secretary to the Government in the concerned Administrative Department ............. Member (II) and, the recommendation made by the Committee after due consideration, shall be communicated to the concerned Administrative Department through the personnel Department and, thereafter, the minimum length of service prescribed on the lower post or posts, as the case may be, for promotion may be relaxed in accordance with the aforesaid recommendation by the concerned Administrative Department: Provided further that provisions regarding relaxation in qualifying service for promotion incorporated by an amendment in the relevant service rules on or after May 01, 2012 shall from the date of the commencement of the Uttar Pradesh Government Servants Relaxation in Qualifying Service for Promotion (First Amendment) Rules, 2013 shall remain unaffected.” 24. Rule 4 provides that if 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 upto fifty percent by the Government excluding the period of probation as laid down for the said lower post or the posts, as the case may be. In the present case, the minimum length of service prescribed for promotion for the post of Executive Engineer is 7 years on the post of Assistant Engineer after excluding two years period of probation. Accordingly, the respondent Nos. 4 to 19 were covered under the said provision. As such, they have been granted relaxation in qualifying service and thereafter, considered and promoted on the post of Executive Engineer(Mech.). 25. The case of the petitioners could have been considered under the proviso as appended to the 1st Amendment Rules, 2013. The petitioners were appointed alongwith the respondent Nos. 4 to 19 against one and the same selection of 2007, but on account of the issuance of the appointment orders on different dates, they joined on different dates and accordingly, the petitioners joined subsequent to the respondent Nos. 4 to 19 for which no fault can be attributed to them while they were respective seniors to the respondent Nos. 4 to 19 in the select list prepared by the Public Service Commission. Accordingly, they were kept at their proper place in accordance with the merit prepared by the Public Service Commission. As such they were not fulfilling the criteria in relaxation of service under Rule 4. However, since the petitioners were appointed on the basis of the same selection alongwith respondent Nos. 4 to 19 and on account of delay in issuance of the appointment orders, whatever the reasons may be, they could join subsequent to the respondent Nos. 4 to 19 without any fault of them but since their seniority has been maintained alongwith merit list, therefore, we are of the considered opinion that the case of the petitioners should have been considered under the proviso to Rule 4 as appended in the 1st Amendment Rules, 2013 as special circumstances for granting relaxation more than fifty percent length of service prescribed on the lower post or posts for promotion. Accordingly, a proper proposal should have been submitted by the Administrative Department through the Personnel Department before the Committee constituted under the Chairmanship of Chief Secretary, as provided under the Rule for consideration for granting relaxation in qualifying service. 26. As per submissions of learned Standing Counsel for the State, the case of the petitioners has been considered under the said proviso, but the special circumstances have not been found for granting relaxation, rather for promotion of the petitioners, there would be deficiency of Assistant Engineers, therefore, they have not been granted relaxation which in our opinion, is misconceived because a right may accrue to an employee who is senior than the others who are being considered, then they should have been considered and they cannot be denied consideration for the laxity of the department for recruiting the sufficient number of the employees on the feeding cadre post. Accordingly, the case of the petitioners should have been referred to the Committee under the Chairmanship of the Chief Secretary for consideration. The ground taken by the respondent Nos. 1, 2 and 3 for disentitling the petitioners for consideration under the proviso to the Rule 4 of the relaxation rules is misconcieved and in our opinion, as indicated above, the special circumstance exists in favour of the petitioners, so their cases should be referred to the Committee of the Chief Secretary for consideration for granting relaxation failing which the petitioners may further suffer in future also in further promotions. 27. There is one more reason for considering the cases of the petitioners as a special case because the Government fixed the seniority of the petitioners at their respective places in view of the select list prepared by the Public Service Commission in accordance with law, even when the petitioners had joined subsequently in accordance with law to avoid any injustice to the petitioners due to issuance of the appointment orders subsequently for no fault of them. 28. 28. The Hon’ble Apex Court, in the case of A. Raghu v. State of A.P. and others, 2015 (14) SCC 221 , considering a similar controversy in which the persons of a single selection were deputed on different dates for training at different centres held that since there was no fault with the individual concerned in deputing to training belatedly accordingly seniority was to be reckoned on the basis of the select list prepared by the Commission, considering the submission that the candidates having been selected for appointment in furtherance of a common selection process conducted by the Recruitment Board were liable to be treated as a single batch of candidates. 29. However, we are not inclined to interfere in the impugned orders dated 27.6.2017 and 3.7.2017 as the respondent Nos. 4 to 19 have been considered for relaxation as per their eligibility and promoted in accordance with rules. But we are of the considered opinion that the petitioners are also entitled to be considered for relaxation in accordance with the proviso to Rule 4 of the Relaxation Rules 2006 and they shall be considered for grant of relaxation for promotion and on being granted relaxation for promotion to the post of Executive Engineer with effect from the date of promotion of respondent Nos. 4 to 19. 30. Accordingly, the writ petition is partly allowed. The opposite parties No. 1 to 3 are directed to consider the case of the petitioners for grant of relaxation as special circumstance as indicated above, under proviso to Rule 4 of Relaxation Rules as amended in 2013 and on being favourable decision for promotion to the post of Executive Engineer with effect from the date of promotion of respondent Nos. 4 to 19. Thereafter, the consequential benefits shall follow accordingly. 31. No order as to costs.