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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.    9091-9092  OF 2014 [Arising out of S.L.P.(C)Nos.32125-32126 of 2012]

Rajendra Kumar Agrawal         …..Appellant

Versus

State of U.P. & Ors.         …..Respondents

W I T H

CIVIL APPEAL NO.   9093     OF 2014 [Arising out of S.L.P.(C)No.39002 of 2012]

J U D G M E N T

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.

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 whereas  

one Anil Kumar Jain, another Superintending Engineer whose Writ Petition bearing

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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.

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 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 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 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 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  

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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  

provisions in the Act and the Rules providing for reservation in 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 (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 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 Parishad’s  

application for extension of four weeks’ time fixed by order dated 27.3.2012 came up  

for orders of this Court 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 noticing that only two officers of civil  

cadre and one officer of electrical/mechanical cadre fulfilled the prescribed eligibility  

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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’].

6. On 04.8.2012, the Parishad constituted a Selection Committee for selecting the  

most  eligible  candidate  to  hold  the  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 regard 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  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’ experience  to  3½  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 1½ years under the provisions of Rule 20  

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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  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 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 1 st of the  

year  in  which  the  selection  is  made.   On  account  of  relaxation  in  the  required  

experience  of  five  years  by  1½  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 nos.84  

and  88  belonging  to  Civil  cadre.   The  aforesaid  decision  of  relaxation  was  

communicated  to  the  State  Government  by  letter  dated  24.8.2012  for  taking  

immediate action for selection to the post of Chief Engineer in accordance with the  

rules.

7. The letter dated 24.8.2012 as well as decision of the Parishad dated 23.8.2012  

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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 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) of 2012 filed by 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 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  

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 examine the following two main  

questions :

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(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 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?

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 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  

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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 Parishad to fill up the  

vacancy only on officiating basis.  Question 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 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.

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 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 Superintending Engineer  as on January 1st of the year in which the selection is made; …………………. …………………. 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 anything contained in the regulations, applicable to his  case,  by  order,  dispense  with  ………………………..  or  relax  the  

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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.

(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.”

11. Learned counsel for the appellant – Rajendra Kumar 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 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  

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  

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rules, may issue an order relaxing any particular 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 298; (3)  Ashok Kumar Uppal & Ors. v.  State of  

J&K & Ors. (1998) 4 SCC 179; and (4) State of Gujarat & Ors. v. Arvindkumar  

T. Tiwari & Anr. (2012) 9 SCC 545.

12. For the purpose at hand, it is useful to refer to paragraph 6 of the judgment in  

the case of J.C. Yadav (supra).  It runs as follows :

“6. The rule confers power on the government to dispense with or to  relax the requirement of any of the rules to the extent and with such  conditions as it may consider necessary for dealing with the case in a  just and equitable manner.  The object and purpose of conferring this  power on the government is to mitigate undue hardship in any particular  case, and to deal with a case in a just and equitable manner.  If the rules  cause undue hardship or rules operate in an inequitable manner in that  event the State Government has power to dispense with or to relax the  requirement of rules.  The rule does not restrict the exercise of power to  individual cases.  The government may in certain circumstances relax  the requirement of rules to meet a particular situation.  The expression  ‘in  any  particular  case’ does  not  mean  that  the  relaxation  should  be  confined  only  to  an  individual  case.   One  of  the  meanings  of  the  expression  ‘particular’  means  ‘peculiar  or  pertaining  to  a  specified  person – thing – time or place – not common or general’.  The meaning  of  the  word  particular  in  relation  to  law  means  separate  or  special,  limited or specific.  The word ‘case’ in ordinary usage means ‘event’,  ‘happening’, ‘situation’, ‘circumstances’.  The expression ‘case’ in legal  sense means ‘a case’, ‘suit’ or ‘proceeding in court or Tribunal’.  Having  regard to these meanings the expression ‘in any particular case’ would  mean:  in  a  particular  or  pertaining  to  an  event,  situation  or  circumstances.   Rule  22  postulates  relaxation  of  rules  to  meet  a  particular event or situation, if the operation of the rules causes hardship.  

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The relaxation of the rules may be to the extent the State Government  may consider necessary for dealing with a particular situation in a just  and equitable manner.  The scope of rule is wide enough to confer power  on the State Government to relax the requirement of rules in respect of  an  individual  or  class  of  individuals  to  the  extent  it  may  consider  necessary for dealing with the case in a just and equitable manner.  The  power of relaxation is generally contained in the Rules with a view to  mitigate undue hardship or to meet a particular situation.  Many a time  strict application of service rules create a situation where a particular  individual or a set of individuals may suffer undue hardship and further  there may be a situation where requisite qualified persons may not be  available  for  appointment  to  the  service.   In  such  a  situation  the  government  has  power  to  relax  requirement  of  rules.   The  State  Government may in exercise of its powers issue a general order relaxing  any particular rule with a view to avail the services of requisite officers.  The relaxation even if granted in a general manner would ensure to the  benefit of individual officers.”

13. In  a  more  recent  case  of   Arvindkumar  T.  Tiwari (supra)  this  Court  

considered several judgments on the issue including that in the case of  J.C. Yadav  

(supra) and Ashok Kumar Uppal (supra) and in paragraph 10 of the judgment held  

as follows :

“10.  The appointing  authority  is  competent  to  fix  a  higher  score  for  selection, than the one required to be attained for mere eligibility, but by  way  of  its  natural  corollary,  it  cannot  be  taken  to  mean  that  eligibility/norms fixed by the  statute  or  rules  can  be  relaxed for  this  purpose to the extent that the same may be lower than the ones fixed by  the statute.  In a particular case, where it is so required, relaxation of  even educational qualification(s) may be permissible, provided that the  rules empower the authority to relax such eligibility in general, or with  regard  to  an  individual  case  or  class  of  cases  of  undue  hardship.  However, the said power should be exercised for justifiable reasons and  it must not be exercised arbitrarily, only to favour an individual.  The  power to relax the recruitment rules or any other rule made by the State  Government/authority  is  conferred  upon  the  Government/authority  to  meet any emergent situation where injustice might have been caused or,  

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is likely to be caused to any person or class of persons or, where the  working of the said rules might have become impossible.  (Vide State of  Haryana v. Subash Chander Marwaha (1974) 3 SCC 220, J.C. Yadav &  Ors. v. State of Haryana & Ors. (1990) 2 SCC 189 and Ashok Kumar  Uppal & Ors. v. State of J&K & Ors. (1998) 4 SCC 179.”

14. In reply, learned senior advocate Mr. S.B. Upadhyay appearing for Narsingh  

Prasad supported the view taken by the High Court and submitted that the decision to  

relax the eligibility criteria under Regulation 20 has to be viewed as changing the  

rules of  selection  after  the process  had started and,  therefore,  it  has  rightly been  

disapproved by the High Court.  He placed reliance upon following judgments of this  

Court :

(1) Y.V.  Rangaiah & Ors. etc.  v. J. Sreenivasa Rao & Ors. etc. (1983) 3  SCC 284;

(2) B.L. Gupta & Anr. v. M.C.D. (1998) 9 SCC 223;

(3) Mohd. Raisul Islam & Ors. v. Gokul Mohan Hazarika & Ors. (2010) 7  SCC 560; and

(4) State of Orissa & Anr. v. Mamata Mohanty (2011) 3 SCC 436.

15. In the case of  Y.V. Rangaiah (supra) as well as in the case of  B.L. Gupta  

(supra), the question of granting relaxation under the existing rules did not fall for  

consideration of this Court.  The only issue was whether the subsequent amendment  

in  the  service  rules  which  were  held  to  be  prospective  could  be  applied  to  the  

selection process in respect of vacancies which had arisen prior to amendment of the  

rules.   In  that  situation,  following several  earlier  judgments,  it  was  held that  the  

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vacancies which had occurred prior to the amendment of the rules would be governed  

by the old rules and not by the amended rules.  After holding so in paragraph 9 in the  

case of B.L. Gupta (supra), the Court explained the position further in paragraph 10  

in following terms :

“10. ……….If no statutory rules had existed, it may have been possible,  though we express no opinion on it, that the existing incumbents may  have  been  regularised.   Where,  however,  statutory  rules  exist,  the  appointments and promotions have to be made in accordance with the  statutory rules specially where it has not been shown to us that the Rules  gave the power to the appointing authority of relaxing the said Rules.  In  the  absence  of  any  such  power  of  relaxation,  the  appointment  as  Assistant Accountant could only be made by requiring the candidates to  take the examination which was the method which was prescribed by the  1978 Rules.”

16. In paragraph 39 of the judgment in the case of Mohd. Raisul Islam (supra) it  

was reiterated that “once a process of selection is started on the basis of the existing  

Rules of recruitment, the said Rules will continue to govern the selection process,  

notwithstanding any amendment which may have been effected to the said Rules in  

the  meantime.”   In  the  case  of  Mamata  Mohanty (supra)  the  facts  were  quite  

different.  Although learned senior counsel placed reliance upon only a particular sub-

para,  i.e.,  sub-para  no.(viii)  of  para  68,  in  support  of  contention  that  granting  

relaxation  “at  this  stage”  amounts  to  change  of  criteria  after  issuance  of  

advertisement, which is impermissible in law, a reading of the entire paragraph 68  

and other paragraphs clearly shows that the fact situation in that case was entirely  

different.  Initially appointments had been made under the 1974 Rules under which  

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there  was  no  power  to  grant  relaxation  in  eligibility  in  any  authority,  either  the  

University or the State.  Hence, it was held in sub-para (xi) of para 68 that in absence  

of such power the same could not have been exercised.  The facts further show that  

contrary to the rules and the advertisement persons having less than the prescribed  

minimum marks had been appointed and such appointments had been approved after  

long time, in some cases, after 10 to 12 years.  One university issued a routine order  

applicable to a large number of colleges after a lapse of about a decade for granting  

relaxation  in  the  academic  qualification.   This  Court  disapproved  the  so-called  

relaxation by the university in the facts and circumstances indicated above.

17. The judgments relied upon by Mr. Upadhyay, learned senior advocate, in our  

considered view, are inapplicable to the facts of the present case especially in view of  

the provisions in Regulation 20 which has always existed in the Regulations.  On the  

other hand, the submissions advanced by Mr. Majithia, learned counsel for Rajendra  

Kumar Agrawal deserve to be accepted particularly in view of the judgments relied  

upon by him.  The Parishad had the necessary power to relax the eligibility criteria.  

In fact under Regulation 20(2) the power is available even with the State Government  

to issue general or specific orders enabling the Board to make any appointment or  

appointments to the service otherwise than in accordance with the Regulations or in  

partial  relaxation of  any or  some of the regulations.   This  Regulation goes on to  

provide further that “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  

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relaxation of these Regulations.”

18. In  the  appeal  filed  by Narsingh  Prasad,  a  challenge  has  been made to  the  

finding given by the High Court to the effect that the authorities have power to relax  

the rules.   Thereafter,  the High Court  further  held that  such relaxation cannot be  

retrospective.  The former observation has been challenged by Narsingh Prasad on  

the ground that power to relax the rules of eligibility can be exercised within the  

parameters of Rule 4 of the 2006 Rules which provides as follows :

Rule 4. Relaxation in qualifying service – 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.”  

(emphasis supplied)

19. A perusal  of  Rule  4  shows  that  the  power  of  relaxation  available  to  the  

concerned authority under different service rules for filling a post by promotion has  

been sought  to  be  regulated  with  a  condition that  prescribed minimum length  of  

service may be suitably relaxed up to the prescribed extent if the required number of  

eligible persons are not available in the field of eligibility.  The contention appears to  

be that although the power to relax is available, the Parishad erred in exercising such  

power  because  already there  were  three  eligible  persons  available  in  the  field  of  

eligibility.  However, it has nowhere been pleaded nor it was argued as to what shall  

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be the required number of eligible persons for exercise of such power.  In this regard,  

the Regulations also do not throw any light.  On this aspect, a perusal of letter dated  

23.11.2010  sent  by  the  Parishad  to  the  Principal  Secretary,  U.P.  Administration,  

Housing & Planning Section-II, discloses that as per Rule 4 of the U.P. Eligibility List  

Rules 1986 (Promotion on the post of Outer Region of Public Service Commission)  

where  sufficient  persons  are  eligible  for  promotion,  one  list  of  the  senior  most  

candidates  will  be  prepared  by appointing  authority,  in  which  names  as  possible  

thrice multiple of number of vacancies but at least eight will be kept.  Thereafter, the  

letter refers to Rule 4 of the Rules of 2006 governing relaxation which limits the  

extent to which relaxation can be granted.  Seen in the background of aforesaid facts,  

the contention advanced in the appeal of Narsingh Prasad, as noted above, is found to  

be without any basis.  The Parishad acted as per letter of the State Government and  

granted relaxation to the extent permissible although this exercise could also result in  

enlarging the zone of consideration only to six candidates.  In paragraph 10 of the  

judgment in the case of Arvindkumar T. Tiwari (supra) extracted earlier, this Court  

has held that if the rules empower, such relaxation is permissible but has cautioned  

that  such  power  should  be  exercised  for  justifiable  reasons  and  it  must  not  be  

exercised arbitrarily, only to favour an individual.

20. Since the case at  hand is not  where the rules have been amended after the  

commencement  of  selection  process  but  only  of  exercise  of  power  to  relax  the  

qualification as to minimum length of service, it may not be necessary to go into  

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questions of fact as to when the selection process was initiated, i.e., whether after or  

before  the  relaxation  in  qualification  or  whether  the  selection  process  had  at  all  

commenced or not.  However, since the rival parties have addressed us on this issue,  

it  will  be  useful  to  notice  that  in  this  case,  the  process  for  selection  of  suitable  

candidate for regular promotion to the post of Chief Engineer could not be initiated  

due to pendency of some civil appeals in which order of  status quo was operating  

qua regular promotion in various services on account of challenge to the provisions  

for reservation in the matter of promotion.  For that very reason even by order dated  

March 27, 2012 this Court directed to undertake elaborate process of selection but  

only for making officiating arrangement by conferring additional charge for the post  

in question on the selected candidate.  It was only after aforenoted impediment got  

removed on account of judgment in the pending civil appeals on 27th April 2012 that  

the  concerned  authorities  got  liberty  to  initiate  the  selection  process  for  regular  

promotion.   The selection process initiated earlier,  as  noted was only for  making  

officiating arrangement.  In the order dated March 27, 2012 this Court had made it  

clear that selection for holding additional charge would not confer any benefit upon  

the selected incumbent in the matter of regular promotion.  Seen in the background of  

such facts, we find merit in the submission advanced on behalf of the Parishad that  

the selection process could have commenced only after April 27, 2012.  Mr. Kailash  

Vasdev, senior advocate appearing for the Parishad usefully pointed out in this regard  

to the explanatory note for the Board meeting for 23rd August 2012.  In paragraph 5 of  

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that note it is mentioned that the matter of regular promotion to the post of Chief  

Engineer is pending consideration before the Government which had suggested for  

relaxing the eligibility condition of five years and at the end of that paragraph it was  

suggested  that  after  getting  the  proposal  for  relaxation  passed  from  the  Board,  

approval of the Administration Department may be obtained and then a proposal for  

making  necessary  promotion  may  be  put  up.   Anticipating  acceptance  of  such  

proposal, the details of nine Superintending Engineers with their experience as on  

1.1.2012 was also given in that explanatory note.  In such facts and circumstances it  

is apparent that the High Court erred in holding that the selection process for regular  

promotion to the post of Chief Engineer had already commenced.  The Government  

was yet to constitute a proper Committee for this purpose and the list  of eligible  

candidates had also not been finalized till the issue of relaxation was taken up as per  

directions 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.

21. The only remaining ground which weighed with the High Court relates to the  

issue  of  malafide  or  improper  exercise  of  power  of  relaxation  allegedly  only  to  

benefit appellant – Rajendra Kumar Agrawal.  On this issue, Mr. Majithia has taken  

us through the pleadings in the writ petition to show that no factual malafide was  

alleged against any person in authority nor such authority was impleaded by name to  

answer even vague suggestions of malafide.  In fact by relying upon judgments in the  

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case of State of Bihar & Anr. v. P.P. Sharma, IAS & Anr. 1992 Supp.(1) SCC 222;  

M.V. Thimmaiah & Ors. v. U.P. Public Service Commission & Ors. (2008) 2 SCC  

119; and Jasbir Singh Chhabra & Ors. v.  State of Punjab & Ors. (2010) 4 SCC  

192, it was rightly submitted that in absence of impleadment of any member of the  

Parishad or any of the officers of the State Government by name and merely on vague  

or  bald assertions no case of  malafide could be made out so as to invalidate the  

decisions taken by the Parishad for exercise of power of relaxation under Regulation  

20.

22. In reply learned senior advocate Mr. Upadhyay submitted that before the High  

Court the contentions were only to show malice in law by alleging and showing that  

power of relaxation had been exercised to achieve an impermissible and improper  

objective of conferring eligibility upon Rajendra Kumar Agrawal on account of his  

influence.  He placed reliance upon paragraphs 11 and 25 of judgment of this Court in  

the case of R.S. Garg v. State of U.P. & Ors. (2006) 6 SCC 430.  In paragraph 11 of  

that judgment, the Court noticed the relevant rule for relaxation of other conditions of  

service.  That rule permitted relaxation of such conditions of service which caused  

undue hardship in any particular case, for dealing with the case in a just and equitable  

manner. Thereafter the Court,  on facts,  found that the eligibility criteria had been  

relaxed to accommodate one person who was not  facing any hardship much less  

undue hardship.  The Court found that in fact the relaxation would have caused undue  

hardship to the persons senior to the beneficiary.  In paragraph 25 the Court explained  

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the difference in the concept of ‘malice in law’ and ‘malice in fact’.  It was reiterated  

that any action resorted to for an unauthorized purpose would construe malice in law.

23. So far as the present case is concerned we do not find any material to show that  

the State Government or the Parishad resorted to exercise of power under Regulation  

20 for  some unauthorized or oblique purpose.   The allegation that  it  was only to  

benefit  Rajendra  Kumar  Agrawal  is  ex  facie  incorrect  because  relaxation  was  

beneficial for three officers who all  were senior to Narsingh Prasad.  There is no  

material to support the allegation that Rajendra Kumar Agrawal was responsible for  

the decision by the State Government or the Parishad on account of any political or  

other influence over any person.  To us, the exercise of power of relaxation appears to  

be in the interest of Parishad because the post of Chief Engineer, as held by this Court  

in earlier proceeding, 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 enabling selection of most meritorious person from a larger group  

of eligible persons.  Hence in the facts of the case, we are of the considered view that  

the High Court erred in inferring that the relaxation was for some dubious reasons or  

to benefit Rajendra Kumar Agrawal.

24. Mr. D.K. Garg, learned counsel for the impleaded respondent – Anil Kumar  

Jain – advanced a submission that there is no specific challenge to the impugned  

judgment  whereby  writ  petition  of  Anil  Kumar  Jain  was  also  allowed.   This  

submission needs to be noticed only to be rejected.  The entire common judgment is  

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under challenge before us and since the said applicant is already impleaded, there is  

no legal obstacle in entertaining such a challenge.

25. In the light of our discussions and findings, we are left with no option but to set  

aside the judgment and order of the High Court under appeal by holding that the  

power  of  relaxation  under  the  Regulations  was  always  available  and  has  been  

exercised  in  a  manner  which  does  not  call  for  any  interference.   We  direct  the  

Parishad and the State Government to expedite the process of selection of the most  

suitable candidate out of the eligible candidates and fill up the vacant post of Chief  

Engineer  in  the  Parishad  as  per  law without  any  delay  within  eight  weeks.  The  

appeals preferred by Rajendra Kumar Agrawal stand allowed and the appeal preferred  

by Narsingh Prasad is dismissed.  There shall be no order as to costs.  

      ..…………………………………………………….J.               [FAKKIR MOHAMED IBRAHIM KALIFULLA]

             ……………………………………………………..J.                          [SHIVA KIRTI SINGH]

New Delhi. September 23, 2014.

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