While setting aside a Judgment of the Allahabad High Court at Lucknow, on Monday, the Supreme Court held that where the Rule uses the word “May” instead of “Shall”, the relaxation cannot be prayed for as a matter of right and no mandamus can be issued.
A Division Bench of Justices M.R. Shah and B.V. Nagarathna passed this Judgment on an Appeal filed by the State of U.P.
In the instant case the Single Judge of Allahabad High Court at Lucknow issued a Mandamus directing the Government to grant relaxation as per Rule 4 of the Relaxation Rules, 7 2006 in qualifying service and consequently quashed and set aside the eligibility lists dated 18.03.2019 and 10.05.2019, regarding promotion from Superintending Engineer to Chief Engineer.
As per Rule 5(iii) of the Rules, 1990, one of the conditions to be eligible is that the Superintending Engineer must have completed 25 years of service (including at-least three years’ service as Superintending Engineer).
The Supreme Court observed that:
It is an admitted position that the original writ petitioners did not fulfill the eligibility criteria as they did not have the qualifying service of having completed 25 years of service. Thus, the eligibility lists were prepared by the department absolutely as per Rule 5(iii) and Rule 8(iii) of the Rules, 1990. The names of the original writ petitioners were excluded from the eligibility list of Superintending Engineer for promotion to the post of Chief Engineer on the ground that they did not fulfil the eligibility criteria as per Rule 5(iii) of the Rules, 1990.
Therefore, as such, the High Court ought not to have set aside the said eligibility lists, which as such were prepared absolutely in accordance with the Rules, 1990
The Bench further observed that:
The word used in the Rule (4) of Relaxation Rules, 2006 is “MAY”. Therefore, the relaxation may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, the High Court has committed a grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service
Consequently, the Court allowed the Appeal and set aside both the Judgments of Allahabad High Court at Lucknow passed by Single Judge and Division Bench in Appeal.