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Smt. Shakuntala v. State Of U.P. And Others - WRIT - A No. 28546 of 1998  RD-AH 6376 (6 April 2007)
CIVIL MISC. WRIT PETITION NO. 28546 of 1998
Smt. Shakuntala Vs. State of U.P. and others
Hon'ble Sudhir Agarwal, J.
The petitioner has sought a writ of mandamus, declaring Rule 4(ii) of U.P. Bal Vikas Evam Pushtahar (Adhinasth) Sewa (Pratham Sanshodhan) Niyamawali 1996, prescribing the maximum age limit of 45 years for promotion to the post of Angan Bari Sewika as unconstitutional. She has also sought a writ of certiorari quashing the list enclosed with letter dated 14.11.1996, sent by respondent no.2 annexing therewith a list of eligible candidates of Angan Bari Karyakartris for promotion to the post of Angan Bari Sewika to the Joint Director (Administration), Bal Vikas Sewa Evam Pushtahar, U.P., Lucknow. She has also sought a writ of mandamus commanding the respondents to consider her for promotion to the post of Angan Bari Sewika on the basis of seniority and to give all consequential benefits.
The facts not much in dispute but relevant for understanding the dispute are that the petitioner's date of birth is 1.2.1949. She was appointed as Angan Bari Karyakartri on 24.5.1980 in Block Chirgaon, district Jhansi. She is graduate whereas minimum qualification for Angan Bari Karyakartri is High School. Since the date of her appointment she is continuously working as Angan Bari Karyakartri and is one of the senior-most in that cadre. In the year 1996, the State Government created the posts of Angan Bari Sewika (Mukhya Sewika), which was a higher cadre to Angan Bari Karyakartri. Appointments were to be made only by direct recruitment and no provision was made for promotion of Angan Bari Karyakartris. When the matter was agitated by Angan Bari Karyakartris throughout the State vide various representations, the advertisement was cancelled and by a notification dated 26.12.1996 U.P. Bal Vikas Evam Pushtahar (Adhinasth) Sewa Niyamavali, 1992 (hereinafter referred to as "1992 Rules") was amended by U.P. Bal Vikas Evam Pushtahar (Adhinasth) Sewa (Pratham Sanshodhan) Niyamawali 1996 (hereinafter referred to as " Ist Amendment Rules 1996"), whereby Rules 5(4) and 15 of 1992 Rules were amended making provision for promotion of Angan Bari Karyakartri to the post of Angan Bari Sewika and process of recruitment by promotion and direct recruitment was also prescribed. Rule 4 as amended in 1996 provided that 25% vacancies of Mukhya Sewika shall be filled in by such Angan Bari Karyakartries who has continuously worked for ten years and are not above 45 years of age on the first date of the year of recruitment and they shall be selected on the basis of interview through a selection committee. The State Government called for records of Angan Bari Karyakartris whereupon respondent no.2 sent a letter dated 14.11.1996 (Annexure 1 to the writ petition) giving a list of 93 candidates which did not include the name of the petitioner since she was above 45 years of age. The petitioner made a representation on 3.1.1997 and thereafter filed writ petition no. 2942 of 1997 which was disposed of on 30.1.1997, directing respondent no.2, i.e., District Programme Officer, Jhansi to consider and decide her representation within four months. Thereafter, the petitioner came to know that her case is not being considered in view of amendment of Rule 5(4) in 1996 whereunder only such Angan Bari Karyakartris who are not above 45 years of age are eligible.
It is contended that Rule 5(4) as amended in 1996 to the extent it prescribes the maximum age limit of 45 years is arbitrary, unconstitutional and violative of Articles 14 and 16 of the Constitution of India. In service law, the criteria of promotion is and should be educational qualification, seniority, merit and mimumum period of service on a particular post but age limit cannot be provided, hence, the impugned Rule is arbitrary, unreasonable and unconstitutional.
The respondents have filed counter affidavit stating that as per Rules, the petitioner is ineligible for promotion to the post of Mukhya Sewika. Further, it is said that validity of Rule 4 has already been considered by Lucknow Bench of this Court in writ petition no. 3462(S/S) of 1998, Smt. Urmila Tripathi and others vs. State of U.P. and others decided on 13.8.1998 and this Court has upheld its validity. A copy of the judgment in the said case has been filed as Annexure CA -2 to the counter affidavit.
I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner heavily relied on a photostat copy of certain comments of some author of some book filed as Annexure 2 to the affidavit in support of Amendment Application No. 74230 of 2007 and contended that criteria for promotion is seniority or seniority subject to rejection of unfit, seniority-cum-merit, merit cum-seniority or merit but in no service any age limit is prescribed for the purpose of eligibility for promotion and, therefore, the Rule in question is wholly arbitrary, unreasonable and illegal. The argument is thoroughly misconceived and cannot be accepted. It is always open to the rule framing authority to lay down mode and manner in which any post is to be filled in and determine the qualification and eligibility therefor. Unless such determination is contrary to some statute or otherwise inconsistent to the provisions of the Constitution, the provision made laying down eligibility for promotion per se cannot be said to be illegal and unconstitutional . Learned counsel for the petitioner could not place any authority before this Court that any such broad principle, as he argued, has been canvassed or accepted by any court of law. On the contrary, I find that in 1992 Rules, initially, only direct recruitment on the post of Mukhya Sewika was provided based on selection through written test and interview. In 1996 the said provision was amended providing 75% direct recruitment and 25% by promotion of such Angan Bari Karyakartris who have completed ten years of service and are not above 45 years of age. The procedure for recruitment by promotion and direct was also laid down in Rule 15 as amended in 1996. Rule 5(4) further came for amendment vide U.P. Bal Vikas Evam Pushtahar (Adhinasth) Sewa (Dvitiya Sanshodhan) Niyamawali 1998,(hereinafter referred to as "Second Amendment Rules 1998"), published on 19.6.1998, whereby the quota of direct recruitment and promotion was further altered to 50% each. Rest of the conditions remained same. The petitioner has challenged Rule 5 (4) as amended by First Amendment Rules 1996 but has not challenged the Second Amendment Rules 1998 by which Rule 5(4) was amended, though on the date the writ petition was filed, i.e., 3.9.1998, Second Amendment Rules 1998 had already come into existence with effect from 19th June 1998. Therefore, the first hurdle before the petitioner is that the amended Rule which she has challenged is no more in existence and to that extent no cause of action survive.
Even otherwise, prescription of age limit for promotion is within the realm of rule framing authority laying down eligibility and qualification for recruitment and unless it is found to be violative of any provision of the Constitution, the same cannot be said to be illegal on any general notion of a particular employee which she or he may have. In the case in hand, recruitment by promotion pertains to the post of Mukhya Sewika who has to discharge supervisory work in villages and is supposed to supervise the work of various Angan Bari Karyakartris working in various centres. Hence, as a part of duty, Mukhya Sewika has to visit constantly various places. The requirement of age considering duties and responsibilities of Mukhya Sewika cannot be said to be arbitrary. I find that the age limit prescribed by the Government was assailed in the case of Urmila Tripathi (supra) and this Court upheld the same observing as under:
" .............Further the fixation of upper age limit as forty five years for promotion on the post of Mukhya Sewika is quite reasonable judging the same from the angle of services which are required to be performed by Mukhya Sewikas. Mukhya Sewikas are required to do supervisory work in the villages. They are supposed to supervise the work of Anganbari centres by visiting from place to place. The ladies beyond forty five years of age are, therefore, not fit to be appointed as Mukhya Sewikas. In my opinion, the said Rule is neither arbitrary nor discriminatory in any manner."
I am in entire agreement with the aforesaid view taken by this Court.
In the result, the writ petition has no merit and is accordingly dismissed with costs quantified at Rs. 2000/- (Rupees two thousand only).
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