SHAKUNTALA Vs. STATE OF U P

JUDGEMENT

(1.) -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.

(2.) 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 Karyakartries where upon 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.

(3.) 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 Karyakrtris 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.