RAJENDRA 'KUMAR AGRAWAL v. STATE OF U.P & Ors.

promotion. Thus, the High Court erred in holding that the A selection process for regular promotion to the post of Chief Engineer had already commenced. The . Government was yet to constitute a proper Committee and the list of eligible candidates was also not finalized till the issue of relaxation was taken up as per directions B of the State Government. The High Court mistook the process for making officiating arrangement as the process for selection for filling up the post on regular basis. [Para 20] [105-F-H; 106-A, E-G] c

1.4. The pleadings in the writ petition show that no ·factual malafide was alleged against any person in authority nor such authority was impleaded by name. In absence of impleadment of any member of the parishiid or any of the officers of the State Government by name and merely on vague or bald assertions no case of D malafide could be made out so as to invalidate the decisions taken by the parishad for exercise of power of relaxation. [Para 21] [107-A-C] · '>

1.5. The exercise of power of relaxation appears to E be in the interest of Parishad because the post of Chief Engineer, is a single post of considerable importance. The enlargement of zone of consideration with addition of relatively senior persons would only benefit the public cause by enabHng selection of most meritorious person F from a larger group of eligible persons. Hence, the High Court erred in inferring that the relaxation was for some dubious reasons or to benefit the appellant. The judgment and order of the High Court are set aside by holding that the power of relaxation under the Regulations was always G available and has been exercised in a manner which does not call for any interference. The Parishad and the State Government is directed to expedite the process of selection of the most suitable candidate out of the eligible H 90 SUPREME COURT REPORTS [2014] 12 S.C.R. A candidates and fill up the vacant post of Chief Engineer in the Parishad. [Para 23, 25] [108-C-E, G-H; 109-A] C M. Nagaraj v. Union of India 2006 (7) Suppl. SCR 336 : (2006) 8 SCC 212; J.C. Yadav & Ors. v. State of Haryana B & Ors.1990 ( 2) SCR 470: (1990) 2 SCC 189; Sandeep Kumar Sharma v. State of Punjab & Ors.1997 ( 2) SCR 405 = (1997) 10 SCC 298; Ashok Kumar Uppal & Ors. v. State of J&K & Ors. 1998 (1) SCR 164: (1998) 4 SCC 179; State of Gujarat & Ors. v. Arvindkumar T. Tiwari & Anr. 2012 (7) SCR 1072: (2012) 9 SCC 545; Y. V. Rangaiah & Ors. etc. v. J. Sreenivasa Rao & Ors. etc. (1983) 3 SCC 284; B.L. Gupta & Anr. v. M.C.D. (1998) 9 SCC 223; Mohd. Raisu/ Islam & Ors. v. Gokul Mohan Hazarika & Ors. 2010 (7) SCR 732: (2010)-7 SCC 560; State of Orissa & Anr. v. Mamata Mohanty 2011 (2) SCR 704 : (2011) 3 SCC 436; D State of Bihar & Anr. v. P.P. Sharma, /AS & Anr.1991 (2) SCR 1: 1992 Supp.(1) SCC 222; M. V. Thimmaiah & Ors. v. U.P. Public Service Commission & Ors. 2007 (13) SCR 624":(2008) 2 SCC 119; Jasbir Singh Chhabra & Ors. v. State of Punjab & Ors. (2010) 4 SCC 192; R.S. Garg v. E State of U.P. & Ors. 2006 (4) Suppl. SCR 120 : (2006) 6 sec 430 - referred to. Case Law Reference: F G H 2006 (7) Suppl. SCR 336 Referred to Para 5 1990 (2) SCR 470 Referred to Para 11 1997 (2) SCR 405 Referred to Para 11 1998 (1) SCR 164 Referred to Para 11 2012 (7) SCR 1072 Referred to Para 11 (1983) 3 sec 284 (1998) 9 sec 223 2010 (7) SCR 732 ' Referred to Para 14 Referred to Para 14 Referred to Para 14 RAJENDRA KUMAR AGRAWAL v. STATE OF U.P. 91 2011 (2) SCR 704 Referred to Para 14 A 1991 (2) SCR 1 Referred to Para 21 2007 (13) SCR 624 (201 o) 4 sec 192 Referred to Para 21 Referred to Para 21 2006 (4) Suppl. SCR 120 Referred to Para 22 B CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9091-9092 of 2014. From the Judgment & Order dated 08.10.2012 of the High C Court of Judicature at Allahabad, Lucknow Bench in Writ Petition No. 1183 (S/B) and 1264 (S/B) of 2012. WITH C.A. No. 9093 of 2014 D S.B. Upadhyay, Kailash Vasdev, lrshad Ahmad, AAG, Nikhil Majithia, Subhasish Bhowmick, Rameshwar Prasad Goyal, Praveen Chauhan, Yash Prakash, Gaurav Agarwal, Kaustav Pathak, Abhisth Kumar, Dinesh Kumar Garg, E Dhananjay Garg, Vishwajit Singh, Abhindra Maheshwari, Umrao Singh Rawat for the appearing parties. The Judgment of the Court was delivered by SHIVA KIRTI SINGH, J. 1. Leave granted.

#2. These appeals arise out of a common judgment of Division Bench of High Court, Allahabad, Lucknow Bench dated 08.10.2012, hence they have been heard together and will be governed by this common judgment. F G

#3. The appellants as well as the private respondents are Superintending Engineers in the service of U.P. Avas Evam Vikas Parishad (for brevity, 'the Parishad'). The appellants are arrayed amongst respondents in the appeal filed by the others H 92 SUPREME COURT REPORTS [2014] 12 S.C.R. A whereas one Anil Kumar Jain, another Superintending Engineer whose Writ Petition bearing No.1276(SB) of 2012 was also allowed by the common judgment under appeal has also been arrayed as a respondent on account of his application for impleadment being allowed by this Court. B

#4. The appellants as well as the private contesting respondents are aspirants for the single post of Chief Engineer in the Parishad which fell vacant in January 2011. Thereafter, although Narsingh Prasad was junior to many others, he was C handed over officiating charge of the post of Chief Engineer on 30.9.2011. Anil Kumar Jain moved the High Court and a ,Division Bench quashed the order dated 30.9.2011 and directed for regular promotion. Narsingh Prasad preferred Civil Appeal No.3153 of 2012 which was allowed to a limited extent on March 27, 2012. This Court in paragraph 8 of the order D noticed that certain appeals were pending in which order of status quo relating to promotional posts had been passed. On that account, this Court found that no regular promotion could take place and hence the order of the High Court was untenable. This Court in such circumstances directed that the E Selection Committee be constituted by the Board within four weeks which shall consider the suitability of all the eligible candidates for holding the additional charge of the post of the Chief Engineer. The Parishad was allowed by this Court to choose someone to hold the officiating charge qua the post of F Chief Engineer but it was made clear that such decision in favour of any candidate would not enure to his benefit at the time of consideration for regular appointment.

#5. For some reasons no selection could be made within the time granted by this Court for making the officiating arrangement but in the meanwhile Civil Appeal bearing No.2608 of 2011 (U.P. Power Corporation Ltd. v. Rajesh Kumar & Ors.) with other connected appeals, came to be finally decided by judgment dated April 27, 2012 reported in (2012) 7 SCC 1. By that judgment, this Court declared the relevant G H RAJENDRA KUMAR AGRAWAL: v. STATE OF U.P. [SHIVA KIRTI SINGH, J.] 93 provisions in the Act and the Rules providing for reservation in A matters of promotion to be ultra vires being in teeth of the dictum in the case of M. Nagaraj v. Union of India (2006) 8 SCC 212. In paragraph 87 of the judgment it was clarified that promotions that had been already given without the aid or assistance of the relevant provision in the U. P. Public Services B (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and the U.P. Government Servants Seniority Rules, 1991 which had been declared ultra vires shall remain undisturbed. Thus, within one month of the order of this Court dated March 27, 2012, the only impediment c in filling up the post of Chief Engineer by regular promotion became non-existent and, therefore, the Parishad on 14.6.2012 issued a letter to the State Government urging for suitable steps for regular appointment to the vacant post of Chief Engineer. Before receipt of reply from the State Government, the 0 Parishad's application for extension of four weeks' time fixed by order dated 27.3.2012 came up for orders of this C9urt which extended the time period on 20.7.2012 by one month. The State Government vide letter dated 27.7.2012 noticed the eligibility list of officers submitted by the Parishad and after E noticing that only two officers of civil cadre and one officer of electrical/mechanical cadre fulfilled the prescribed eligibility of five years' experience on the post of Superintending Engineer, accepted the advice by the Public Sector Department for grant of relaxation in the qualifying experience of five years under the provisions of Regulation 20 of the U.P. Avas Evam Vikas Parishad (Appointment and Conditions of Service of Chief Engineer) Regulations, 1990 (for short, 'the Regulations']. F

#6. On 04.8.2012, the Parishad constituted a Selection Committee for selecting the most eligible candidate to hold the G additional charge of Chief Engineer. The Selection Committee in its meeting held on 06.8.2012 came to the opinion that since there was no longer any legal impediment in proceeding with regular selection for regular promotion to the post of Chief Engineer, the Parishad should take a decision in that reg<1;rd H 94 SUPREME COURT REPORTS [2014] ·12 S.C.R. 0 A and State Government be moved to constitute a Selection Committee for that purpose which is required to be headed by the Chief Secretary of the State. Appellant Rajendra Kumar Agrawal approached the High Court by way of writ petition bearing W.P.(S/B)No.1183/2012 claiming the officiating charge B of Chief Engineer as the senior most eligible person and a direction against continuation of Housing Commissioner on the said post in officiating capacity. On 23.8.2012 the Parishad considered the recommendations of the Selection Committee and decided to relax the eligibility criteria of five years' c experience to 3% years including the probation period of two years in the light of U.P. Government Servants Relaxation in Qualifying Service for Promotion Rules, 2006 (for brevity, 'Rules of 2006'). The decision of the Board granting relaxation of 1% years under the provisions of Rule 20 of the Regulations was taken after considering details of nine Superintending Engineers in which Anil Kumar Jain of Electrical/Mechanical cadre occupied seniority position no.1 followed by Rajendra Kumar Agrawal at serial no.14 with experience of 4 years 3 months; Mathura Prasad Vaish at no.15 with experience of 3 years 7 months; and Umesh Mittal at serial no.16 with E experience of 3 years 7 months. Three other Superintending Engineers Gyanendra Singh, Jai Kant and Santram at seniority nos.21, 22 and 83 respectively had zero or very little length of experience whereas Narsingh Prasad, seniority position no.84 and Pravender Kumar, seniority position no.88 had experience F of 7 years or more. The experience of the concerned Superintending Engineers was calculated as on 01.1.2012 in the light of Regulation 5 which requires length of service to be reckoned as on January 1st of the year in which the selection is made. On account of relaxation in the requirecj experience G of five years by 1 % years, three senior Superintending Engineers, Rajendra Kumar Agrawal, Mathura Prasad Vaish and Umesh Mittal came in the eligibility zone which earlier included only three others who were at seniority position no.1 belonging to Electrical/Mechanical cadre and seniority position H nos.84 and 88 belonging to Civil cadre. The aforesaid decision RAJENDRA KUMAR AGRAWAL v. STATE OF U.P. [SHIVA KIRTI SINGH, J.] 95 of relaxation was communicated to the State Government by A letter dated 24.8.2012 for taking immediate action for selection to the post of Chief Engineer in accordance with the rules. 8

#7. The letter dated 24.8.2012 as well as decision of the Parishad dated 23.8.2012 were challenged by Narsingh Prasad through Writ Petition (S/B)No.1264 of 2012. He contended that the decision to make regular promotion was in violation of the orders of this Court particularly order dated 27.3.2012, it also amounted to retrospective amendment of eligibility criteria when the selection process was already under C way and that such decisions were only with a view to benefit Rajendra Kumar Agrawal for political reasons. Another writ petition filed by Anil Kumar Jain bearing W.P. No.1276 (S/B) of 2012 was also directed against the same very decisions as challenged by Narsingh Prasad. The 4th writ petition decided by the common order was W.P.No.1207 (S/B) of2012 filed by D one Gyanendra Singh who had not been promoted then as a Superintending Engineer but wanted his experience as an officiating Superintending Engineer to be counted for promotion. That was negated by the High Court and he has not chosen to appeal against rejection of his claim. By the common impugned E order, the High Court dismissed the writ petition of Rajendra Kumar Agrawal and allowed those filed by Narsingh Prasad and Anil Kumar Jain. Since Anil Kumar Jain had not impleaded Rajendra Kumar Agrawal in his writ petition, therefore, the latter preferred only two Special Leave Petitions - one against F dismissal of his writ petition and the other against relief granted to Narsingh Prasad. However, subsequently Anil Kr. Jain has been impleaded in these appeals on his own request and hence the entire common judgment is under question in presence of all the parties and this Court is now called upon to G examine the following two main questions: (1) Whether the Parishad should be allowed, as pleaded by it, to proceed with making regular promotion to the vacant post of Chief Engineer in H 96 SUPREME COURT REPORTS [2014) 12 S.C.R. A B c D the light of subsequent judgment of this Court dated 27.4.2012 in the case of U.P. Power Corporation v. Rajesh Kumar & Ors. (supra) or as held by the High Court it be directed to fill up that vacancy only on officiating basis in purported compliance of order of this Court dated March 27, 2012? (2) Whether the decision of the Parishad in compliance with request of the State Government, to relax the minimum qualifying experience of five years in exercise of power under Regulation 20 is bad in law for the reasons assigned by the High Court that it amounts to retrospective amendment of rules of eligibility after the selection process has begun and that it is for dubious reasons only to accommodate Rajendra Kumar Agrawal? E

#8. With regard to the first question, we have no hesitation in holding that after the judgment of this Court dated April 27, 2012 in the case of U.P. Power Corporation Ltd. v. Rajesh Kumar & Ors, (supra) there was no impediment in the way of the Parishad in proceeding with regular selection for filling up the vacant post of Chief Engineer in a regular manner. This Court had directed for making officiating arrangement by selecting a suitable Superintending Engineer to hold additional charge of the post of Chief Engineer only on account of order F of status quo qua the process of regular promotion in pending civil appeals that were finally disposed of on April 27, 2012. Thereafter, the Parishad would have only wasted time and resources in making officiating arrangement after going through elaborate procedure of selection. There can be no doubt that the Parishad committed an act of impropriety in not bringing the subsequent vacation of status quo order on account of disposal of pending civil appeals on 27.4.2012 and in not seeking formal permission of this Court to fill up the post of Chief Engineer on regular basis. However, now when the full facts are before this Court, it would not be proper to direct the G H RAJENDRA KUMAR AGRAWAL v. STATE OF U.P. [SHIVA KIRTI SINGH, J.] 97 Parishad to fill up the vacancy only on officiating basis. Question A no.1 is answered accordingly.

#9. So far as Question no.2 is concerned, in the light of answer to Question no.1, only two grounds which weighed with the High Court require our attention. The High Court accepted 8 the contentions advanced on behalf of Narsingh Prasad that the· impugned actions of the Parishad amounted to retrospective amendment of eligibility criteria after the selection process had commenced and that such decisions were taken only to benefit Rajendra Kumar Agrawal for political or dubious reasons. c

#10. Before adverting to the rival submissions, it will be useful to extract relevant Regulations 5 and 20 of the Regulations which are as follows : "5. Source of appointment - Appointment to the post of o Chief Engineer and other equivalent posts as may be specified in the cadre of the Service shall be made by promotion in the manner laid down in these Regulations from amongst the Superintending Engineers who have completed not less than five years of service as E Superintending Engineer as on January 1st of the year in which the selection is made; F

#20. Relaxation - (1) If the Board is satisfied that the operation of any regulation regarding the conditions of service of persons appointed to the service causes undue hardship in any particular case, they may, notwithstanding G anything contained in the regulations, applicable to his case, by order, dispense with ............................. or relax the requirement of that regulation to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner. H 98 SUPREME COURT REPORTS [2014] 12 S.C.R. A B (2) When, in the opinion of the Board, or under the general or specific orders of the State Government it appears necessary to do so, the Board may make any appointment or appointments to the service otherwise than in accordance with these regulations, or in partial relaxation of any or some of the regulations and in case of any appointment which is not in strict accord with these regulations, the Board shall be deemed to have made the appointment(s) in relaxation of these regulations." E

#11. Learned counsel for the appellant - Rajendra Kumar C Agrawal - Mr. Nikhil Majithia has relied upon large number of judgments of this Court in support of his contention that neither of the grounds have any merit. According to him, the power to relax the eligibility criteria .was already available under Regulation 20 of the Regulations and, therefore, it was a D mistake on the part of the High Court in relying upon various judgments which lay down a principle that retrospective amendment of the rules relating to selection is impermissible once the selection process has been initiated. In other words, the submission is that in the present case it is a misconception that there has been any amendment much less a retrospective amendment of the policy decision or the rules governing the selection process. According to him, the power of relaxation as available in Regulation 20 is to be found in many other rules governing different services. With a view to mitigate undue F hardship or to meet a particular situation, it may be validly exercised in a situation where requisite qualified persons may not be available for selection and appointment. In such situations, the Government, in exercise of its powers to relax requirement of rules, may issue an order relaxing any particular G rule or rules with a view to avail the services of requisite officers. In support of these submissions reliance has been placed upon judgments of this Court in the case of (1) J.C. Yadav & Ors. v. State of Haryana & Ors. (1990) 2 SCC 189; (2) Sandeep Kumar Sharma v. State of Punjab & Ors. (1997) 10 SCC H 298;, (3) Ashok Kumar Uppal & Ors. v. State of J&K & Ors. RAJENDRA KUMAR AGRAWAL v. STATE OF U.P. [SHIVA KIRTI SINGH, J.] 99