STATE OF UTTAR PRADESH AND OTHERS versus SHANTI DEVI on 8 August 2022

1. Leave granted.

2. The appeal arises from a judgment dated 13 December 2019Cof a Division Bench of the High Court of Judicature at Allahabad (atLucknow).

3. The issue which falls for determination is whether the SingleJudge of the High Court was justified in directing the State to considerthe claim of the respondent for the grant of an age relaxation in makingDappointments to the post of Mukhya Sevika. The Single Judge in ajudgment dated 11 April 2018 directed the State to consider the claim ofthe respondent for age relaxation in terms of the provisions of the UttarPradesh Public Services (Relaxation of the Age limits for Recruitment)Rules 1992[1]. The judgment of the Single Judge was affirmed in a SpecialEAppeal[2] preferred by the State of Uttar Pradesh.

4. Recruitment for the post of Mukhya Sevika is specified in TheUttar Pradesh Child Development and Nutrition (Subordinate) ServiceRules 1992[3]. The UP Service Rules of 1992 have been framed underthe proviso to Article 309 of the Constitution. The service which isFconstituted in terms of the Rules comprises of group ‘C’ posts. Rule 5deals with the sources of recruitment. Among the posts specified inRule 5, the following provision is made for the post of Mukhya Sevika:

–“5(4) Mukhya Sevika

(i) Fifty percent through the Selection committee from amongstGfemale candidates on the basis of competitive examination.

(ii) Fifty percent by direct recruitment through the SelectionCommittee in Accordance with Rule 15-B from amongst High 1 “Age Relaxation Rules of 1992”

2 “Special Appeal Defective No 570 of 2019”

H3 “UP Service Rules of 1992”

School or Equivalent examination pass Anganwadi Workerswho have completed Ten years continuous service as suchand have not attained the age of more than fifty years on thefirst day of the year of recruitment.”

5. On 9 January 2018, a circular was issued by the Directorate ofChild Development Services & Nutritious Meals, UP to all DistrictProgramme Officers stating that selections were to be made to the postof Mukhya Sevika from the post of Anganwadi Karyakatri under theDirectorate. Since the appointments were to take place at the districtlevel, instructions were issued to collect details pertaining to eligiblecandidates from amongst High School qualified Anganwadi Karyakatriswho had completed 10 years of service and had not crossed 50 years ofage as on 1 July 2017.

6. Admittedly, the respondent had crossed the upper age limit of50 years on the relevant date. On 12 March 2018, the respondentsubmitted a representation to the District Program Officer praying forage relaxation on the ground of her continuous service rendered since1987 as an Anganwadi worker. She later filed a writ petition in the HighCourt seeking the grant of an age relaxation in terms of the Uttar PradeshPublic Services (Relaxation of the Age limits for Recruitment) Rules1992. Before the High Court, counsel for the state submitted that thebenefit of the Age Relaxation Rules of 1992 cannot be granted to therespondent as she held a post of Anganwadi Karyakatri, established undera scheme of the state government, and was not a government employee.

7. The Age Relaxation Rules of 1992, which have been framedunder Article 309 of the Constitution, contain the following stipulation:

“Relaxation of the age-limits for recruitment.–

3. Notwithstanding anything to the contrary in any rule regulatingthe maximum age of recruitment to a service or post in connectionwith the affairs of the state, relaxation in the maximum age-limitmay be granted by the governor in favour of a candidate or aclass or candidate.”

Provided that in the case in which recruitment is made throughthe Commission, that body shall be consulted before the relaxationis granted.”

A

B

C

D

E

F

G

H

A8. The claim of the respondent was accepted in the judgment ofthe Single Judge on 11 April 2018 based on the Age Relaxation Rules of1992. The Single Judge directed the competent authority to consider theclaim of the respondent for grant of an age relaxation:

“It is admitted case of the petitioner that she has cross the ageBlimit prescribed for consideration of promotion on the post ofSupervisor (Mukhya Sevika). It has not been disputed that forrelaxation in age she approached the competent authority underRule 1992. These fact has also not been denied by the learnedAdditional Chief Standing counsel. From a long span of time noproceeding for grant of promotion on the post of supervisor hasCbeen finalized. Thus, the claim of the petitioner for grant of agerelaxation under the aforesaid rules appears to be justified. ThisCourt in the aforesaid judgement referred hereinabove has clearlyheld that Rule of 1992 is having overriding effect upon all the rulesin regard to the grant of age relaxation. In view of the above, theDpetitioner has made out a case for issuance of direction to thecompetent authority to consider her claim for grant of age relaxationin accordance with Rule of 1992"

9. The State of Uttar Pradesh filed a Special Appeal against thejudgment dated 11 April 2018, which was dismissed by a Division BenchEof the High Court on 13 December 2019. The High Court in the impugnedjudgment noted that the State in the Special Appeal had not taken aground that the respondent was not a government employee. Further, itrelied on a judgment dated 16 December 2017, where a Division Benchof the Allahabad High Court had directed the competent authorities toconsider whether there should be an age relaxation under Rule 3 of theFAge Relaxations Rules of 1992 for candidates appearing for differentposts advertised by the UP Public Service Commission.

10. We have heard Mr Tanmaya Agarwal, counsel appearing onbehalf of the appellant, the State of Uttar Pradesh, and the counselappearing on behalf of the respondent.G

11. In compliance with the judgment dated 11 April 2018, theappellant in the exercise of its discretion, considered and rejected therepresentation of the respondent on 3 October 2018. The representationwas reconsidered by the Personnel Department on 13 November 2018.It noted that the case of the respondent did not fall within the ambit of H

STATE OF UTTAR PRADESH AND OTHERS v. SHANTI DEVI[DR JUSTICE DHANANJAYA Y CHANDRACHUD, J.]

Rule 3 of the Age Relaxation Rules of 1992 and denied the grant of anage relaxation to the respondent:

“7. In this regard, case was revisited in the light of the provisionsof Uttar Pradesh Public Service (Relaxation of Age Limit forRecruitment) Rules, 1992 and it was found that since the postof Anganwadi worker is not in regular Government servicepost (post of Anganwadi worker is service based on honorary),for this reason, aforesaid case is not covered by aforesaidrules.”

12. Rule 3 of the Age Relaxation Rules of 1992 which is extractedabove begins with a non obstante provision which operatesnotwithstanding anything to the contrary contained in any rule regulatingthe maximum age of recruitment to a service or post in connection withthe affairs of the State. The rule entrusts the Governor with a discretionto grant a relaxation in the maximum age limit in favour of a candidate ora class of candidates. Counsel for the appellant submits that Rule 3 ofthe Age Relaxation Rules of 1992 is only applicable to candidates whoare recruited from open category by advertisement on the basis ofcompetitive examination.

13. Rule 5(4) of the UP Service Rules of 1992 which has beenextracted in the earlier part of this judgment provides two sources ofrecruitment to the post of Mukhya Sevika. The first source is throughselection on the basis of a competitive examination. Rule 15A providesfor the procedure for direct recruitment through a selection committeeon the basis of a competitive examination conducted by the Commission.Rule 10 states the maximum age limit for candidates for direct recruitmentshall be 40 years on the first day of the year of recruitment in whichvacancies for direct recruitment are advertised by the commission. Thesecond source is by direct recruitment through a selection committeefrom amongst Anganwadi workers who have passed High School andhave completed 10 years of continuous service and have not attained 50years of age on the first day of the year of recruitment. Rule 15B providesfor the constitution of the selection committee for making appointmentsthrough direct recruitment to the post of Mukhya Sevika under Rule5(4)(ii).

14. The court was apprised by counsel appearing on behalf of theappellants that under Rule 5(4)(ii) read with Rule 15B of the UP Service

A

B

C

D

E

F

G

H

ARules of 1992, the Department received a list of 70,000 eligible Anganwadiworkers against 975 vacant posts of Mukhya Sevika. The UP ServiceRules of 1992 stipulate that the upper age limit for the post of MukhyaSevika under Rule 5(4)(ii) is 50 years as on the first day of recruitmentyear.

B15. In the present case, the State uniformly applied the prescribedage limit of 50 years to all applicants considered under Rule 5(4)(ii) readwith Rule 15B of the UP Service Rules of 1992. On the direction of theSingle Judge of the High Court on 11 April 2018, the State applied itsmind and considered the representation for the grant of an age relaxationto the respondent twice — on 3 October 2018 and on 13 NovemberC2018. In exercise of its discretionary power, the appellant decided thatthe respondent was not eligible to be granted the benefit of an agerelaxation. No individual candidate can claim a vested right to agerelaxation which lies in the discretion of the appointing authority. Therespondent cannot claim age relaxation under the Uttar Pradesh PublicDServices (Relaxation of the Age limits for Recruitment) Rules 1992 as amatter of right. Eligibility criteria should be uniform and there cannot bescope of arbitrary selections. A candidate cannot have a vested right toclaim an exemption from a uniformly applicable criterion. A selectivegrant of an age relaxation will cause serious prejudice in the process ofselection and render the process arbitrary.E

16. For the above reasons, we allow the appeal and set aside theimpugned judgment of the Division Bench of the High Court of Judicatureat Allahabad (at Lucknow) dated 13 December 2019 in Special AppealDefective No 579 of 2019. In consequence, the writ petition which wasinstituted by the respondent shall stand dismissed.F

17. Pending applications, if any, stand disposed of.

G

Ankit Gyan

(Assisted by: Rahul Rathi, LCRA)

Appeal disposed of.

H