U.f'. JAL NIGAM AND ORS. v. NARINDER KUMAR AGARWAL

H The following Order of the Court was delivered : 1120

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Delay Condoned. Leave granted. A

The appellant-U.P. Jal Nigam was formed under the U.P. Water Supply and Sewerage Act, 1975. Consequentially, the persons working in the Local Self-Government Engineering Department of U.P. were trans- ferred to the appellant's administrative control. Jn exercise of power under .' B Section 97 of the Act, U.P. Jal Nigam Engineers (Public Health Branch) Services Regulations, 1978 (for short, 'Regulations') were framed. Rule 5 of the Regulations envisaged that :

"5. Keeping into consideration rules 6, 17 and 18, recruitment from ( the following sources : C

(1) Asstt. Engineer;

A. Direct recruitment on the basis of result of competitive ex- amination or as prescribed in part 5 of the rules for recruitment. D But in case of emergency the Nigam can made recruitment on the basis of intervie\V also. \

Note : Initial recruitment to the post of Asstt. Engineer will be made against only temporary vacancies. E (2) Junior Engineers and computers of the former Local Self-Govt. Department and/or in the service of Jal Nigam by promotion of those candidates who have rendered continuous service of ten years in the former LSGD and/or U.P. Jal Nigam or any other department. Temporary service will be counted for this purpose. The candidates fulfilling these conditions and also fall within the ambit of Rule 16(3) will be considered.

Note : The details for recruitment to the post of Junior Engineer and computer is given in condition 1. But recruitment will be done in such a way that 25% of the vacancies are filed by promotion and the rest by direct recruitment. Any relaxation in this percent- age will be permitted only when suitable candidates are not avail- able.

Rule 10 prescribes that no person will be recruited direct in the civil side unless he holds a degree in Civil Engineering or its equivalent from H

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A recognised university or he has passed part and of AMIE. Clause B thereof also provides that no person shall be recruited to the mechanical side on similar conditions. The ratio for direct recruitment is 75% and for promotces 25%; and while calculating the vacancies, the ratio of 25% for promotees always be maintained. Rule 10(3) which is relevant for the purpose envisages that Computers and Junior Engineers in the service of former LSGD or Jal Nigam will not be promoted to the post of Asstt. Engineering (Civil) or (Mechanical) under rules 5(1) (ka) (two) unless he has passed the condition prescribed in Rule 10(1) and 10(2) of the Regula- tions. The note appended thereto given liver for relaxation of conditions ~ of recruitment and can adopt any other criteria for the selection and promotion of Junior Engineers and Computers to the post of Assistant Engineer. In other words, the note enabled them only to relax the rules prescribed for passing the qualifying examination for selection to the posts of Asstt. Engineers. At this juncture, we would observe that the rule runs + contrary to the settled service jurisprudence and the law laid down by this D Court and deleterious to augment efficacy of service and would dry out the source to improve excellence and honest service. However, since note is not the subject matter of attack, we need not observe any further. (

Rule 18 provides the right to promotion which emisages that "For promotion to the post of executive engineer seniority will be the criteria E and for promotion to the post of Asst!. Engineer, Superintending Engineer and Chief Engineer, the merit will be the criteria". The Jal Nigam in exercise of the power of relaxation under the note passed a resolution on 31.12.1983 that it is not appropriate to change the criteria every time and • it is not necessary to change the basis on which selection has been made previously. Therefore, the procedure was reiterated as under : F "The preceding five years annual confidential record of each can- didate shall be perused. If there are more than half good entries or entries higher than that then the candidate shall be considered fit for selection." G According to the decision taken by the Jal Nigam in its 62nd meeting, the condition of passing the qualifying examination for candidates eligible upto 31.12.83 has been relaxed and instead the condition of gradation on the basis of service records has been made the basis for promotion. In order to determine merit, the

U.P.JALNJGAMv. N.KAGARWAL 1123

confidential entries of all the candidates falling within the zor.e of consideration be scrutinised even though their integrity has not been certified. 11

18 vacancies of Assistant Engineers have arisen and the erst\vhile officer from LSGD or those appointed under the Nigam have been con- sidered for promotion for 25% quota reserved for insenice candidates. B Under the resolution No. 502, dated 19.5.1983, it was resolved that 10 years continuous service either in the erstwhile department or under the Nigam is a pre-condition of which 5 years in Nigam was necessary for promotion. It was also resolve that 5% of 25% was reserved for graduate Engineers who should complete 5 years of service in Jal Nigam. Following the above criteria, the candidates were considered and selected. It would c appear that first selection on September 24, 1983 and the second selection in August 1984 were made.

The respondent who was appointed as a Junior Engineer in LSGD on April 12, 1973 had passed his BE degree qualifying examination on D , November 3, 1982. He had put in 10 years of service as J.E. as on 13.4.1983. Since he was a graduate and was eligible for promotion in general 25% quota as well as the graduates quota of 5%, but does not appear to have been considered on September 4, 1983 for selection. Against in the second selection held in August, I 984 also he was considered but was not selected. As a consequence, he filed the Writ Petition No. 14229/84. E The Allahabad High Court by order dated 17.1.1982 allowed the Writ Petition and directed to consider the case of the respondent in the 25% quota reserved for promotecs for the relevant year. proceedings dated ' 20.2.1992 have been placed before us in which as per the directions of the Court the appellant had considered his case, an additional post was created and he was promoted in 25% quota reserved for promotees as a special case.

Shri K. Madhava Reddy, the learned senior counsel for the appellant, contended that the note to the rule referred to hereinbefore gives power to the Board to relax the criteria; the Board having relaxed the criteria ) considered all the persons including 54 persons who are eligible according to the norm laid down; the respondent was not considered since he did not come up within the zone of consideration. It is also contended that out of 5% quota reserved for the graduates, 17 candidates including the respon- dent on Serial No. 13 were considered. Since the criteria being merit and H

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A ability, the more meritorious were promoted and the respondent, therefore, could not be selected. The High Court had proceeded on a wrong premise, namely, the respondent was not considered within 25% quota and he was alone the graduate elib>ible but was not considered for promotion. It is stated that in view of the fact that 17 candidates, who are graduates, were considered and merit and ability being the criteria, the premise on which B the High Court proceeded is, therefore, not valid in law.

Shri A.K. Srivastava, the learned Advocate General of Sikkim ap- pearing for the respondent, contended that the respondent having duly qualified for promotion in April 1983 by which date the criteria of relaxa- C tion was not made, ought to have considered but was not considered according to the rules. Even in August 84 selection also he was not considered as he was fully qualified to be considered. Therefore, the High Court was right in granting the direction and, therefore, th«re is no merit in the case of the appellants.

D It would appear that the appellant with a view to see that all eligible persons would come within the zone of consideration for promotion adopted a general rule of relaxation and considered the cases of all the persons. But from the resolution, we are unhappy to note that even merit or integrity have been sacrificed as mentioned that they are not relevant for consideration. It is settled law that merit and integrity are the sole consideration for selecting posts and seniority would become relevant only when merit of all candidates are approximately equal. The Board seems to have taken a reverse gear, obviously to facilitate persons who are not having that much of integrity and ability. However, since the promotion given to the persons has not been put in issue, we need not express any doubt on their selection but we are unhappy to note the way in which the Jal Nigam is functioning in con:"idering the promotion of the officers to improve excellence or to inculcate efficiency, integrity and honesty in the officers to reach higher echolons of service.

G It is seen that since the criteria of zone of consideration was adopted as per the resolution and 54 persons were considered and the respondent ( did not come up in the zone of consideration, we cannot find fault with the non-consideration of the respondent in that zone of consideration of 54 candidates. In the quota of 5% reserved for graduates, though the respon- H dent has fulfilled the qualification and was eligible to be considered, he

U.P.JALNIGAMv. N.K.AGARWAL 1125

was included in the panel of the candidates, the selection was made by the committee constituted in that behalf. The committee appears to have proceeded on the premise of merit and ability and evaluated the criteria of all the 17 candidates and selected four candidates who were standing at No. 1, 2, 6 and 8. In the absence of any compelling circumstances brought to our notice to show that the selected candidates are not possessed of superior merit and ability than that of the respondent, we do not think that the selection is beset with any illegality. However, in view of the circumstan- ces that pursuant to the direction given by the High Court, the claim of the • respondent had already been considered and he has been promoted, we f do not incline to interfere with the order of the High Court.

The appeal is accordingly dismissed with the above declaration of c law and observations. No costs.

G.N. Appeal dismissed.