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2023 DIGILAW 2181 (ALL)

Alok Kumar Singh v. State of U. P.

2023-09-20

AJIT KUMAR

body2023
JUDGMENT : Ajit Kumar, J. Heard Sri Kunal Shah, learned counsel for the petitioner and learned Additional Chief Standing Counsel. 2. Petitioner, who is currently holding the post of Assistant Engineer (Civil) in the Department of Irrigation and Water Resources Uttar Pradesh, Lucknow is aggrieved by the order dated 12.9.2022, impugned herein this petition for denying his claim for promotion as Executive Engineer on the ground that he did not fulfill the eligibility criteria of having minimum period of service to his credit as Assistant Engineer as required under the Uttar Pradesh Government Servants (Group A), Rules, 1990 (hereinafter referred to as ''Rules 1990''). 3. According to the petitioners, the feeding cadre for the post of Executive Engineer (Civil) in the department is the cadre of Assistant Engineer (Civil) and as per the rules criterion for promotion is seniority subject to rejection of unfit. Petitioner's case is that he otherwise stands above the 5th respondent, Mr. Utkarsh Bharadwaj in the seniority list of Assistant Engineer (Civil) by virtue of the order passed in his case determining the seniority on 8th of January, 2018 placing him in between Shri Sudhir Kumar Pal at serial No. 415 and Utakarsh Bharadwaj at Serial No. 416 by listing his name at serial No. 415 (A). This order has never been assailed against. 4. In order to appreciate the controversy involved in the present case vis-a-vis the claim of the petitioner, which according to him should have been accorded preference over and above impleaded respondents in the writ petition, it is necessary to draw facts in a narrow compass. 5. Petitioner was applicant for the post of Assistant Engineer (Civil) pursuant to the advertisement issued by the Public Service Commission, Uttar Pradesh. Advertisement was issued wayback in the year 2004 but selection process became a long drawn process and result was ultimately declared on 10th of March, 2011. The petitioner successfully made it to the merit list, however, he could not be offered appointment because of not furnishing of No Objection Certificate (NOC) of his earlier employer, namely, the U.P. Public Works Department, where he was working. Petitioner's earlier NOC ran out of his life because of the delayed selection process in the Public Service Commission. Accordingly, he applied for fresh NOC and this fact he intimated to the Public Service Commission. Petitioner's earlier NOC ran out of his life because of the delayed selection process in the Public Service Commission. Accordingly, he applied for fresh NOC and this fact he intimated to the Public Service Commission. Since, the petitioner had been reverted in the meantime while working in U.P. Public Works Department, some more technicality arose in issuance of the NOC by particular section and ultimately that was issued only on 27th January, 2012, which the petitioner submitted before the Public Service Commission on 30th January, 2012. The petitioner was not issued any appointment order and accordingly when he enquired under the Right to Information Act, 2005, he was replied that his candidature has been cancelled. Consequently petitioner filed writ petition before this Court being C.W.P. No. 51969 of 2012, which was allowed by the Division Bench under its judgment and order dated 12.8.2014. The Commission ultimately forwarded the name of the petitioner for appointment on the post of Assistant Engineer (Civil) on 9.10.2014 and the State Government appointed petitioner by issuing an appointment order on 18.9.2015. However, on account of critical illness of his father, who was diagnosed of cancer and who had to undergo surgery at TATA Memorial Hospital, Mumbai, petitioner could not submit his joining and requested the State Government to extend the period and Government extended vide notification dated 5.1.2016. Petitioner ultimately joined on the post of Assistant Engineer (Civil) on 4.2.2016. 6. In the background of above facts there arose question of seniority of the petitioner, which according to him was to be determined as per the U.P. Services of Engineer, Irrigation Department (Group B) Service Rules 2007 (Rule 21 of Rules 2007) read with Rule 5 of U.P. Government Service Seniority Rules 1991. Petitioner's seniority was to be determined as per the select/merit list prepared by the Public Service Commission. Accordingly, petitioner pleaded for his placement in the seniority at appropriate stage in the light of the relevant service rules as well as various authorities, which was relied upon by him. A tentative seniority list was prepared and circulated by the State Government on 27.12.2016 placing the petitioner at Serial No. 415 (A) just above the 5th respondent. Accordingly, petitioner pleaded for his placement in the seniority at appropriate stage in the light of the relevant service rules as well as various authorities, which was relied upon by him. A tentative seniority list was prepared and circulated by the State Government on 27.12.2016 placing the petitioner at Serial No. 415 (A) just above the 5th respondent. The objections were invited to the tentative seniority list so published but no objection was filed and the State Government finalized it under its order dated 8th January, 2018 placing the petitioner at Serial No. 415 (A) just above the 5th respondent. 7. In the meanwhile, Departmental Promotion Committee was convened on 29.12.2017 for considering promotion of Assistant Engineer (Civil) to the post of Executive Engineer (Civil). While, the criterion for promotion was seniority subject to rejection of unfit by taking aid to Uttar Pradesh in Government Servants qualifying service promotion of Rules 2006 which came to be further amended on 24th of April, 2013. As per the amended relaxation Rules, in the eligibility criterion of seven years of experience 50 percent relaxation would be granted by the Government through its Administrative Department in consultation with the personnel Department excluding the period of probation as may be laid down for the said post. However, a proviso was also added to the Rule 4, which by Clause 8 (1) provided for discretion with the administrative department for providing further relaxation beyond 50 percent in the minimum length of service prescribed for lower post if it finds any justification for the same. Accordingly, all those who were being considered for promotion in the year 2017, including respondent Nos. 5 to 15 were granted relaxation as they did not complete requisite service period of 7 years for promotion from the post of Assistant Engineer (Civil) to Executive Engineer (Civil). Since, the petitioners claim was pending consideration for seniority, he could not be given any benefit by the Departmental Promotion Committee. Soon after his seniority was determined placing him above the 5th respondent, who was promoted on 29th December, 2017 placing him at Serial No. 4 out of total list of eighty eight number of promoted Assistant Engineers, petitioner raised his grievance before the Department. Soon after his seniority was determined placing him above the 5th respondent, who was promoted on 29th December, 2017 placing him at Serial No. 4 out of total list of eighty eight number of promoted Assistant Engineers, petitioner raised his grievance before the Department. The basic plea taken was that he having been placed in the seniority list above the 5th respondent, he would be taken to have been there in the cadre ever since, the 5th respondent was there and so he would be taken to have a total length of service from that date only, and thus was eligible for relaxation like 5th respondent. 8. The other plea taken was that the petitioner was made to join on account of not for his fault but for the fault of Government and the Public Services Commission and that he had to undergo a litigation before Court of Law which ultimately resulted in granting his writ petition and the respondents made him to join only on 4.2.2016. He submits that his claim immediately after his placement in seniority list under State Government order dated 8th January, 2019, he completed his probation period in service by 3rd February, 2018, and therefore, giving advantage of the proviso to Rule 4 in the special facts and circumstances of case, he should have been given promotion. However, the State-Government has rejected the claim of the petitioner under the order impugned on the ground that since at the time of consideration of promotion of junior to the petitioner, petitioner was not meeting the eligibility criterion, he could not be offered promotion from the date his junior, the 5th respondent and other juniors who were given promotion on 29th December, 2017. The authorities took the view that even if 50 percent of the relaxation was accorded to the petitioner insofar as the total requisite period of working of 7 years as Assistant Engineer as required under the rules, it would have come to only 3 years and 6 months and since the petitioner had been on probation for 2 years, he could not be taken to have completed his probation period which was of 2 years, as a candidate aspiring for promotion is required to have requisite experience of 7 years on the first day of July of the recruitment year. So if the recruitment year is taken to be 2017-18 as on Ist July, 2017, 50 percent relaxation would be as on that date provided the probation period is excluded. Petitioner having completed probation period only in February, 2018, it was out of question to consider his candidature for promotion in the year 2017-18. In a nutshell, the reason assigned is that even if relaxation is accorded as per the Rule 4, i.e. 3 years and 6 months on Ist July, 2017, petitioners probation period being still on, he would not have fulfilled the criterion. 9. Sri Kunal Shah, learned Advocate appearing for the petitioner has raised two fold arguments for assailing the order impugned in this writ petition: Firstly; once the petitioner was placed in the seniority list, he would be taken to be there in service as Assistant Engineer with all consequential benefits and the requisite period of 7 years would count from the date his junior was placed in the seniority. Service period is to be reckoned with his junior placed in the seniority list below him, namely, the 5th respondent and taking that so, as on Ist July, 2017, petitioner would have already 3 and half years to his credit in service. Shri Shah submits that relevant Rule 1990 having been subject-matter of interpretation by a Division Bench at Lucknow Bench of this Court in the case of Sanjeev Kumar and others v. State of U.P. and others, 2018(4) ADJ 366 , wherein it was held that the period should be taken into consideration notionally as required towards 7 years of service without any experience. Shri Kunal Shah has also relied upon a decision of a coordinate Bench of this Court in the case of Lal Pratap Singh v. State of U.P. and others, 2009 (3) AWC 2321 , wherein the Court held that qualifying service would not mean actual physical service. The Court had relied upon the Supreme Court judgment in the case of Union of India and others v. K.B. Rajoria, 2000 (85) FLR 714 . The Court had relied upon the Supreme Court judgment in the case of Union of India and others v. K.B. Rajoria, 2000 (85) FLR 714 . Shri Shah has also relied upon Division Bench judgment of Andhra Pradesh High Court Hanumantha Reddy v. U.O.I. and others High Court, 1985 SCC Online AP 198, where the difference had been made between actual service and continuous service and where the rules provide for continuous service then the notional service could be taken into account for the purposes of requisite period of service. Shri Shah has also relied upon a Division Bench judgment of the Delhi High Court in Government of NCT of Delhi and others v. Shri Rakesh Beniwal and others, 2014 SCC Online Del 3944, wherein, the Court permitted 7 years service to be counted for the purposes of qualifying period, if the candidates were restrained by any act of the State Government from giving them joining; Secondly, argument of Mr. Kunal Shah, learned counsel for the petitioner is that the petitioner ought to have been granted benefit of the proviso to Rule 4 in the special facts and circumstances of the case as the petitioner was made to join subsequently after litigating the matter and then he had to fight for placement in the seniority list. Shri Kunal Shah has relied upon judgment of the Supreme Court in the case of State of U.P. v. Vikas Kumar, Civil Appeal No. 6868 of 2021, Singh decided on 22nd November, 2021 where Relaxation Rules 2006 were taken into consideration. 10. Additional Chief Standing Counsel has sought to defnd the order for the reasoned assigned therein and submitted that any relaxation would be counted only if an employee has already completed the probation period as an employee still under probation cannot be posted and petitioner being on probation in the relevant year 2016-17, his candidature was rightly not considered. 11. Having heard learned counsel for the respective parties and having perused the records and looking to the bare undisputed facts relating to appointment, joining and seniority accorded to the petitioner by the respondents themselves, it is absolutely clear that petitioner's notional seniority and as such service has been counted from the date one Mr. Utkarsh Bhardwaj, next junior to the petitioner has been given appointment and jointing. Utkarsh Bhardwaj, next junior to the petitioner has been given appointment and jointing. The order passed by the competent authority in the matter, namely, Principal Secretary, Irrigation Department and Water Resources, Government of U.P. dated 08th January, 2018 has remained unchallenged, and therefore, remained undisputed. The then Principal Secretary, Mr. Suresh Chandra vide paragraph 5 of the order in a quite unequivocal terms placed the petitioner above Mr. Utkarsh Bhardwaj and below Mr. Sudhir Kumar Pal assigning serial No. 415-A. The relevant paragraph 5 is reproduced hereunder: 12. The State respondents proceeded to consider promotion of petitioner's batch, Assistant Engineer to the post of Executive Engineer in the recruitment year 2017-2018. 13. The Engineering Services Rules, 1990 of the Irrigation department provide for two years period as probation and the Rule 5(1) after fifth amendment to the Rules of 1990 provide that post of Executive Engineer, Civil or Mechanical be filled up by promotion from amongst substantively appointed Assistant Engineers, who have completed 7 years of service on the first day of the year of recruitment. Rule 5(1) of the U.P. Service of (Irrigation Department) (Group-A) Rules, 1990 are reproduced hereunder: ''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 recruitment.'' 14. From a bare reading of the aforesaid Rules, it is very much clear that a candidate who seeks promotion from the post of Assistant Engineer to Executive Engineer, Civil, is required to possess ''7 years service'' in substantive capacity, which obviously would be including two years period of probation. 15. Yet another provision relevant here to be examined is of U.P. Government Servants Relaxation in qualifying Service for promotion (1st amendment) Rules, 2013, which permit the Government/authority to provide relaxation in service period of 7 years. This amendment is relating to in U.P. Government Servant Relaxation in qualifying service for promotion Rules, 2006. 16. By virtue of amendment brought in the year 2013 the existing Rule 4 has been substituted by new Rule 4 and new Rule 4 runs as under: ''Column-2- (4). This amendment is relating to in U.P. Government Servant Relaxation in qualifying service for promotion Rules, 2006. 16. By virtue of amendment brought in the year 2013 the existing Rule 4 has been substituted by new Rule 4 and new Rule 4 runs as under: ''Column-2- (4). In case of 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 constitute as followed: (I) Chief Secretary….. Chairman (ii) Principal Secretary/Secretary Personnel Department……… Member (iii) Principal Secretary/Secretary to the Government in the concerned Administrative Department. (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 commencement of such amendment, be deemed to have been omitted but, notwithstanding such omission, the promotions made in accordance with such amended service rules on or after May 01,2012 and prior to the date of commencement of the Uttar Pradesh Government Servants Relaxation in Qualifying Service for Promotion (First Amendment) Rules, 2013 shall remain unaffected.'' 17. Upon reading of the aforesaid Rules, it is very much clear that relaxation is to be granted in the first instance of 50 percent and in the special circumstance, further beyond 50 percent by administrative department. 18. It appears that respondents proceeded to consider the promotion of the Assistant Engineers of the petitioner's batch to the post of Executive Engineer in the relevant Recruitment year 2017-18. Obviously, since these appointees were of the year 2011-12, they had not completed requisite period of 7 years service and so taking aid of Relaxation Rules, 2006 (amended in the year 2013) 50 percent relaxation in 7 years came to be 3 and half years of the Assistant Engineers was accorded to all those who belonged to the batch of the petitioners and thus they came to be promoted having requisite service period of 3 and half years to their credit excluding period of probation undergone by them. Petitioner's candidature be not accorded any consideration for the reason that petitioner had joined the service only on 4.2.2016 and he was still on probation despite there being post available to accommodate the petitioner. 19. Aggrieved by the decision of the respondents in not considering his candidature for promotion, the petitioner represented matter on 11.4.2022 and then he filed writ petition before this Court being Writ A No. 11320 of 2022, which was disposed of on 23rd August, 2022 with direction to the respondent No. 2 to consider and decide the representation of the petitioner in accordance with law within three weeks from the date of submission of certified copy of the order. The petitioner approached the authority accordingly to consider his claim and decide the same within time period as prescribed by the High Court by writing a letter on 29th August, 2022 and respondent Principal Secretary while deciding the representation of the petitioner rejected his claim for promotion basically on twin grounds: (a) as per Rule, 1990, the candidate must have completed 7 years of service of the first day of the year of recruitment, which the petitioner did not fulfil; and (b). petitioner having joined in the year 2016 did not have requisite period of service even after 50 percent of the relaxation was accorded and besides above, the ground is that petitioner was still on probation. 20. petitioner having joined in the year 2016 did not have requisite period of service even after 50 percent of the relaxation was accorded and besides above, the ground is that petitioner was still on probation. 20. What has been argued before this Court and discussed above on facts, the first point that emerges out for consideration of this Court is, as to whether the period of 7 years of service in a substantive capacity would mean actual service alone or would be including notional service period and so also probation period so as to make petitioner entitled or dis-entitled to promotion even after 50 percent of relaxation; and the second point that arises for consideration is, as to whether in the given and circumstance of this case, were special enough to make petitioner entitle to further relaxation as per first proviso to Rule 4 of the Relaxation Rules, 2006. 21. As quoted hereinabove, Rule while provide for service period as 7 years service, the words and expression ''7 years of service'' has not been conditioned by any word like actual or experience, so meaning thereby one has to have total number of 7 years of service notional or actual to his credit on the first day of year of recruitment. Whenever Rules provide for particularly years of service or say number of years of service in other words and do not clarify it by any word or expression actual or experience, in my considered view, such expression would include notional service period as well. 22. A Coordinate bench of this Court in Lal Pratap Singh (supra) quoted a very celebrated judgment on the point, namely, Union of India and others v. K.B. Rajoria, 2000 (85) FLR 714 , wherein the Court interpreted the word regular service would not mean actual service. Qualifying the service period by any expression of actual or physical service has been held to be highly misplaced interpretation. vide paragraph 19, learned Judge has held thus: ''19. Qualifying the service period by any expression of actual or physical service has been held to be highly misplaced interpretation. vide paragraph 19, learned Judge has held thus: ''19. Though in slightly different context, but in Union of India and others v. K.B. Rajoria, 2000 (85) FLR 714 , the question came up for consideration as to what ''regular service'' in the grade would mean and whether it would cover notional promotion or not and in that context, the Apex Court held that by giving notional promotion with retrospective effect to the concerned incumbent in that case it would mean that he was regularly appointed to the post on that date. It also held that the word ''regular'' does not mean actual and for the said purpose, it referred to the definition of ''regular'' in Concise Oxford Dictionary, Ninth Edition, which reads as under : ''(1) conforming to a rule or principle, systematic; (2) harmonious, symmetrical; habitual, constant, orderly; (4) conforming to a standard of etiquette or procedure, correct, according to convention; (5) properly constituted or qualified, not defective or amateur, pursuing an occupation as one's main pursuit.'' Here also for the purpose of pension, it is only the qualifying service, which is contemplated under Regulation 468 of CSR and not the actual physical service. The interpretation given to office memorandum referred to in para-15 in K.B. Rajoria (supra) by the Apex Court, in my view, would apply with full vigour in the present case also though that was a case of Central Government. Here also reading the words ''qualifying service'' as ''actual physical service'' is wholly misplaced having no basis and it also overlooks the effect and concept of ''notional promotion'' and the benefit ensued therefrom to the concerned employee. Any other view amounts to taking a benefit given by one hand to the employee by another hand, which is neither just nor in accordance with well known principle of service jurisprudence that no person, who is otherwise entitled to a relief, should be denied the same though the denial is not substantiated by any condition of service or statutory provision applicable to such employee.'' 23. A bench presided over by Hon'ble the then Chief Justice of Andhra Pradesh High Court had the occasion to interpret the words and expression, ''continuous service of 8 years'' and that Court in that case of G. Hanumantha Reddy v. Union of India and others, 1985 SCC Online AP 198, held that when the Rules provide for actual or continuous service, it may though be taken as an actual service but in particular facts and circumstances, it can be taken to include notional service also. The Court disapproved the reasoning of learned Single Judge who held that eight years of continuous service would mean only completion of actual service. Learned Single Judge in the said case had held concept of notional period of service absolutely irrelevant for counting period of service. vide paragraph 6 the learned Single Judge had held thus: ''The words ''completed not less than 8 years of proviso to Regulation 5(2) (SIC)'' means completion of actual service. Continuity of service which is contemplated in this Rule sic actual service. A deemed promotion or a notional date of seniority in the State Forest Service from a date earlier than that from which he actually officiated in the post cannot be considered to have officiated in the post during the period from the notional date to the date of commencement of officiating the service in that post. The seniority given by virtue of such a notional date is not relevant for purpose of determining the eligibility for inclusion in the list of I.A.S. officers to be prepare under the second proviso to sub-regulation (2) of Regulation 5(SIC)'' 24. Overriding the above, the Division Bench vide paragraphs 7 and 8 held thus: 7. With due respect we are unable to agree with the reasoning adopted by the learned Judge. It is admitted on all hands that the petitioner was entitled to have his seniority in the post of Deputy Collector reckoned from 16-9-1949. If the orders were passed in time, as the Government ought to have normally done, the petitioner who had been confirmed in the rank of Deputy Collector with effect from 1-11-1956 by G.O.Ms. No. 1125 dated 10-9-1979 would have been in terms of clause (1) of Rule 4, eligible for being considered for inclusion in the panel for the year 1958, on his completing 8 years as on 15-9-1957. No. 1125 dated 10-9-1979 would have been in terms of clause (1) of Rule 4, eligible for being considered for inclusion in the panel for the year 1958, on his completing 8 years as on 15-9-1957. The belated recognition of and giving effect to the legitimate rights of the petitioner, that too as a result of the relentless fight he had to carry on, should not operate to his prejudice in the matter of consideration for promotion, as the petitioner was in no way responsible for the delay. Justice has been delayed to him; but let it not be denied to him completely. Rules and Regulations, in our view, are intended to advance, not to frustrate the cause of justice. Merely on the ground that there is no positive direction in the rule to the selection committee to reckon notional seniority, in the absence of any prohibition in the rules against notional seniority being taken into account for the purpose of eligibility for being considered for inclusion in the panel, if the committee refuses to include the period covered by the notional seniority, restricting it to actual service in the post of Deputy Collector or its equivalent post, it would amount to perpetuation of injustice. It is to be also noticed that the rule also does not speak about the 'actual service'. It speaks only about 'continuous service', which could normally mean actual service, but in peculiar circumstances it could include notional service also. We must remember that the conferment of notional seniority on the writ petitioner was not a gratuitous act, but something due in recognition of his legal right. Undisputedly the petitioner would have been considered for inclusion in the 1958 list had this recognition come in time. Because of the delay in according this recognition, to which petitioner made no contribution, the writ petitioner had suffered enough throughout the time he was in service; and it would be only a token of what he deserved if now he is treated to have been eligible for being considered for inclusion in the 1958 list on the basis of his notional seniority, which might result in his entitlement for some arrears of salary and pensionary benefit on notional promotions and refixation of scales of pay. Why should the Court lend its support to deny even that to the writ petitioner? 8. Why should the Court lend its support to deny even that to the writ petitioner? 8. In this connection, it has to be borne in mind that no special provision for reckoning notional seniority for the purpose of eligibility for inclusion in the list for appointment to the I.A.S. cadre could have been made in the rules. The rule-makers could not have possibly anticipated a situation like this, where it took decades to confer on the person concerned his due seniority for no fault of his. Such situation might be few and far between. An interpretation to meet ordinary situation would not meet the extraordinary situation. Ends of justice require that the petitioner who had been all through his career subjected to injustice should not be denied at least the monetary benefits, if any, to which he would be entitled, if his claims are considered properly. Once his seniority is legally re-fixed, he would naturally be entitled to receive all the benefits flowing from the seniority so fixed from that date. The denial of that right would be adding premium to lethargy and callousness on the part of the authorities who had been instrumental in denying justice to the writ petitioner all these years. 25. No doubt the golden rule of interpretation is that something cannot be added to give extended meaning to the Rules which otherwise Rules do not mean by taking to the plane language and simple words, they are couched in. 26. In the case of Government of NCT of Delhi and others v. Rakesh Beniwal and others, (2014) 213 DLT 748 , the Delhi High Court considered this aspect of the matter by framing two important questions thus: ''10. The dispute herein requires resolution of two important questions: (a) Whether applicants who are deprived of joining service are entitled to be considered for promotion on the date which their immediate juniors were promoted and; (b) Whether as a consequence, the respondent/applicants are entitled for all consequential benefits and arrears of pay for the period that they were deprived of being in service at the requisite position in the organisational hierarchy. Point No (a)'' 27. Point No (a)'' 27. In order to answer the question, the Court found it to be apt to refer to the authority of Supreme Court in the case of Pitta Sitaram Patrudu v. Union of India, (1996) 8 SCC 637 and finally answered the points vide paragraphs 24,25 and 26 thus: 24. Whilst the law dictates that salary is to be paid for work done, a parallel cannot be drawn from the principle of ''no work, no pay''to apply to the circumstances of the present dispute. The Tribunal appreciated that the applicants should not suffer at the cost of bureaucratic delays of the GNCTD and its litigative proclivities.The respondents herein were appointed many years after their other batch mates had been appointed. The maxim commodum ex injuriasuanemoha-beredebet i.e. no person ought to take advantage from his own wrong applies squarely to the petitioners here. The Supreme Court in Kusheshwar Prasad Singh v. State of Bihar and others, (2007) 11 SCC 447 held, ''13. it is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, 'a wrong doer ought not to be permitted to make a profit out of his own wrong'.'' 25. The maxim has been interpreted by the Apex Court in Mrutunjay Pani and another v. Narmada Bala Sasmal and another [1962] 1 SCR 290, wherein it was held that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. Further in Union of India and others v. Major General Madan Lal Yadav (Retd.) [1996] 3 SCR 785 it was observed, ''In Broom's Legal Maxims (10th Edn.) p. 191 wherein it was stated; ...it is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.'' 26. The delay in appointment and the consequential denial of benefits is the direct corollary of the inaction of the petitioners; consequently, they cannot take advantage of their own delays in declaring results and issuing appointment letters to deny promotion to the respondents. The Supreme Court has observed in this regard in the matter of Baij Nath Sharma v. Hon'ble Rajasthan High Court at Jodhpur, 1988 SCC (L&S) 1754, ''But here the appellant has been deprived of his promotion without any fault of his. High Court said that it might be sad state of affairs that the name of the appellant was not considered for promotion till he retired. High Court may feel anguish but it gives no comfort to the appellant. At least for future such an unfortunate thing should not happen to any other officer similarly situated. This malaise which abysmally afflicts any service when there is recruitment from different sources when there is recruitment from different sources crops up in the one form or the other with great disadvantage of one or the other. But then service is not constituted merely for the benefit of the officers in the service but with a certain purpose in view and in the present case for dispensing justice to the public at large.'' [emphasis added]'' 28. The division bench upheld the order of the Tribunal that had allowed the OA holding appointees who were made to join later, to be entitled to be offered promotion at par with juniors. 29. Here, I am reminded also of a recent judgment of Lucknow Bench of this Court in the case of Sanjeev Kumar v. State of U.P. and others, 2018(4) ADJ 366 , wherein the Court was dealing with same rules but in respect of post of Executive Engineer, 'Mechanical'. The Court cited the Rule vide paragraph 21 and framed core question for consideration vide paragraph 23 thus: ''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. 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.'' 30. The Court held case of that petitioner to be a special circumstance in which vide proviso 1 to Rule 4 special consideration was directed to be accorded in giving further relaxation beyond 50 percent. vide paragraph 26, 27, 28 and 29, the Court held thus: ''26. The Court held case of that petitioner to be a special circumstance in which vide proviso 1 to Rule 4 special consideration was directed to be accorded in giving further relaxation beyond 50 percent. vide paragraph 26, 27, 28 and 29, the Court held thus: ''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.'' 31. Looking to the above proposition of law regarding interpretation to the words and expressions, the years of service be 6,7 and 8 years, in my considered view, once the respondents had accorded due seniority to the petitioner at par with his batch of appointees and above promoted candidates includes a junior person, namely, Utkarsh Bhardwaj, impleaded as respondent No. 5 in the writ petition inasmuch as accorded seniority to the petitioner by treating him in employment w.e.f joining of Utkarsh Bhardwaj, petitioner would be taken to have been given benefit of notional seniority in service and if now this period is taken to be notional service period, then in the relevant year of recruitment is 2017-18 petitioner had total number of 5 and half years of service to his credit and 2 years of probation if taken out, he would be left with three and half years of service to his credit as on 1st July, 2017, the first day of the recruitment year. Now the petitioner has 3 and half years service left to his credit, so 50 percent of the relaxation if given to the petitioner as per Rule 4 of the Relaxation 2006, petitioner would become entitled to promotion as he was having 3 years 6 months service to his credit as on 1st July, 2017. 32. Still further looking to the special facts of the case where petitioner's candidature was wrongly rejected in the year 2012, even though he had submitted his NOC on 27th January, 2012 while appointments were being offered to the candidates of his batch in between November, 2011 and January, 2012 and petitioner did further make a representation on 3rd January, 2012, his candidature was wholly illegally rejected on 28.2.2012 and he had no other option but to rush to the Court for justice to question cancellation order dated 28th February, 2012 and so it was rightly quashed. 33. Justice was done, but in 2014 when writ petition was allowed. It is in these circumstances when the consequential order for appointment was issued, he landed up in circumstances that were beyond his control because his father was suffering from ailment of cancer and was admitted in Tata Memorial Hospital. He had to seek time for joining which was allowed and ultimately, he jointed on 4th February, 2016. The cancellation of his candidature by U.P. Public Service Commission dated 28th February, 2012 was illegal and was quashed on 12.8.2014 by allowing writ petition being Writ A No. 51969 of 2012 and so more than two and half year period got wasted in litigation for which petitioner cannot be penalized. Since he was offered appointment on 18th September, 2015, so more than three years of period beginning from 28th February, 2012 till 18th September, 2015 was beyond his control for being there no fault on his part and so he cannot be penalized for the same. He could not submit his joining in the special facts and circumstances when his father was suffering from Cancer, a totally incurable disease as he was admitted to a hospital in Mumbai. 34. He could not submit his joining in the special facts and circumstances when his father was suffering from Cancer, a totally incurable disease as he was admitted to a hospital in Mumbai. 34. Now looking to the special facts and circumstances as discussed above in my considered view if respondents are not to consider his probation period, they were required to give him further relaxation as per proviso to Rule 4 of the Relaxation Rules, 2006, but here I may hasten to add that period of probation is liable to be included within 7 years service period required under the Rule for a candidate to possess requisite period of service for promotion. 35. It is a case where petitioner was not only denied initial selection and appointment for none of his fault but even subsequently after according due seniority, he has been not offered promotion whereas his juniors have been given promotion. Thus that order rejecting the claim of petitioner for promotion w.e.f date his joing were posted is held unsustainable and so deserves to be quashed. 36. I have already discussed above that reasons assigned in the order rejecting claim of the petitioner impugned herein this petition are totally unjustified, and so petitioner is accordingly held entitled to promotional benefits also. 37. I am here reminded of observations made by the Supreme Court in paragraphs 33 and 34 of its judgment in Commissioner, Karnataka Housing Board v. C. Muddaiah, (2007) 7SCC 689, which run as under: ''33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. 34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.'' 38. Accordingly, in view of above, writ petition succeeds and is allowed. The order dated 12.9.2022 is hereby quashed. Writ of mandamus is issued to the concerned competent respondent in the matter to confer the benefit of promotion upon petitioner w.e.f date of his junior Mr. Utkarsh Bhardwaj has been given promotion with all consequential benefits. Appropriate orders shall be passed by the authority within a period of thirty days of presentation of certified copy of this order. 39. Writ of mandamus is issued to the concerned competent respondent in the matter to confer the benefit of promotion upon petitioner w.e.f date of his junior Mr. Utkarsh Bhardwaj has been given promotion with all consequential benefits. Appropriate orders shall be passed by the authority within a period of thirty days of presentation of certified copy of this order. 39. Parties are left to bear their own costs.