Allahabad High Court
Smt. Vijay Laxmi vs State Of U.P. Thru. Addl. Chief Secy. ... on 7 May, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- SPECIAL APPEAL No. - 193 of 2022 Appellant :- Smt. Vijay Laxmi Respondent :- State of U.P. Thru. Addl. Chief Secy. Deptt. Of Medical, Health And Family Welfare Lko. and Others Counsel for Appellant :- Alok Mishra Counsel for Respondent :- C.S.C.,Gaurav Mehrotra Hon'ble Devendra Kumar Upadhyaya, J.
Hon'ble Subhash Vidyarthi, J.
1. Heard Shri Alok Mishra, Advocate, the learned counsel for the appellant-petitioner, Shri Amitabh Rai, the learned Additional Chief Standing Counsel for the State and Shri Gaurav Mehrotra, Advocate, the learned counsel representing the U.P. Subordinate Services Selection Commission (herein after referred to as "UPSSSC").
2. By means of this intra-court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952, the appellant-petitioner seeks to challenge the judgment and order dated 29.04.2022 passed by the learned Single Judge dismissing Writ A No. 2460 of 2022 filed by the appellant-petitioner challenging the advertisement issued on 25-05-2021 for holding a Preliminary Eligibility Test (PET) for preparing a shortlist of candidates for making selections to various Group C posts under the State Government, and the advertisement issued on 15-12-2021 for holding the main examination for making selections to the posts of Health Worker (Female)/Auxiliary Nurse Midwife (ANM). The petitioners further challenged the validity of a Government Order dated 20-11-2020, whereby the Government laid down the procedure for making applications and holding a two-tier examination for making recruitment to various Group C posts as also the order dated 10-08-2021 passed by the State Government which recites that as the selection process by holding PET had already started, it will not be proper to separate the posts of Health Worker (Female) from the selection process as per the proposal of the Health Department and this proposal can be considered in future. The appellant-petitioner also challenged the notification dated 05-04-2022 issued by the UPSSSC, whereby the candidates who had scored even '0' marks in the Preliminary Eligibility Test (PET) were declared qualified on the basis of their normalized score. The appellant-petitioners sought a direction to allow them to appear in the main examination for the post of Health Worker (Female) which was scheduled to be held on 08-05-2022.
3. Appellant-petitioner had pleaded in the writ petition that they have completed two years of Health Worker (Female)/Auxiliary Nurse Midwife (ANM) training and they are working on contractual basis in different Community Health Centers/Primary Health Centers in different districts.
4. On 25-05-2021, the UPSSSC issued an advertisement for conducting a Preliminary Eligibility Test ("PET") as a part of two tier examination system for making selections and appointment to various posts of group-C under the State Government. On 15-12-2021, another advertisement was issued by the UPSSSC for conducting the main examination for making selections for 9212 post of Health Worker (Female).
5. The appellant-petitioners filed Writ A No. 2460 of 2022 challenging the aforesaid advertisements and the Government Orders dated 20-11-2020 and the order dated 10-08-2021, the notification dated 05-04-2022 issued by the UPSSSC, whereby the candidates who had scored even '0' marks in the PET were declared qualified on the basis of their normalized score. The appellant-petitioners sought a direction to allow them to appear in the main examination for the post of Health Worker (Female) which was scheduled to be held on 08-05-2022.
6. During the hearing of the writ petition, the learned counsel for the respondents raised a preliminary objection against the maintainability of the writ petition on the ground that the petitioners-appellants had not applied pursuant to the advertisement issued on 25-05-2021 for the PET and they did not participate in the PET and, for this reason, they had no right to appear in the main examination, as it was provided in the advertisement itself that only those candidates would be eligible to appear in the main examination who would qualify the PET.
7. In furtherance of the advertisement dated 25-05-2021 as many as 28,73,540 candidates had applied for taking the PET. Result of the PET was published on 28-10-2021. Thereafter the advertisement dated 15-12-2021 was issued by the UPSSSC inviting applications for making selection on the posts of Health Worker (Female), from amongst the candidates who had been successful in the PET. The last date for submission of the applications was 05-01-2022.
8. The appellant-petitioners had assailed the Advertisement dated 25-05-2021 and 15-12-2021 mainly on the ground that the maximum age prescribed in the Advertisement violates the provision contained in Rule 10 of the Uttar Pradesh Medical, Health and Family Welfare Department Health Workers and Health Supervisor (Male and Female) non-Gazetted, Service Rules, 2018 (hereinafter referred to as "Rules of 2018"), which provides as under:-
"A candidate for direct recruitment must have attained the age of eighteen years and must not have attained the age of more than forty years on the first day of July of the calendar year in which vacancies for direct recruitment are advertised:
Provided that the upper age limit in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified.
Provided further that the upper age limit for such candidates who was working as auxiliary Nurse Midwife in the medical, Health and Family Welfare Department, by the government, Uttar Pradesh on contract basis and who possess the qualification prescribed in the rule-8(2) of these rule shall be greater by such number of completed years of services as they have rendered on contract basis subject to be maximum of five years for enabling them to become eligible for being considered for direct recruitment."
9. The learned counsel for the appellant-petitioners contended that as per the second Proviso appended to the aforesaid Rule 10 of the Rules of 2018, Health Worker (Female) are entitled to get a relaxation in the upper age limit of the number of completed years of service rendered on contractual basis, upto the maximum of 5 years. He submitted that paragraph-6 of the Advertisement dated 25-05-2021 provides that a candidate who has completed the age of 40 years, will not be eligible for appearing in PET and this condition violates Rule 10 of the Rules of 2018.
10. Rejecting the aforesaid submission, the learned Single Judge held that a perusal of Condition No. 6 of the Advertisement reveals that it specifically mentions that a candidate would be entitled to get relaxation in the upper age limit as per the Regulations / Government Orders issued from time to time. It further clarifies that a candidate, who has qualified the PET, would be entitled to get relaxation in the age limit as per the service Rules applicable to the concerned post. Therefore, the submission of the Appellants-petitioners, that the advertisement provides for the upper age limit of 40 years which violates Rule 10 of the Rules 2018, is unacceptable as paragraph-6 of the Advertisement clearly states that relaxation in upper age limit would be admissible as per the relevant service rules / Government Orders.
11. The next contention of the appellant-petitioners before the learned Single Judge was that even the candidates who had scored '0' marks, have been declared by the UPSSSC as qualified by applying the principle of normalization. Dealing with this submission, the learned Single Judge held that the appellant-petitioners had themselves admitted that the UPSSSC had issued a corrigendum providing that the candidates who have scored "0" marks would not be considered to be eligible. The learned Single Judge further held that Condition No. 8 of the Advertisement categorically states that normalization principle would be applied in short listing of the candidates. For the aforesaid reasons, the learned Single Judge dismissed the writ petition and further held that as the appellant-petitioner did not apply for the PET and the final examination was to be held on 08-05-2022, the question raised by the appellant-petitioner at this belated stage was merely academic. The appellant-petitioner cannot be treated to be persons aggrieved.
12. While assailing the judgment and order dated 29-04-2022 passed by the learned Single Judge in this Special Appeal, Shri Alok Mishra, the learned counsel representing the appellant-petitioner, has submitted that the appellant-petitioner no. 1 could not apply as her age exceeds 40 years and her online application was not accepted in pursuance of the Advertisement for PET 2021 on account of her being over age and thus, she has been deprived of her legal right for being considered for appointment on the post of Health Worker (Female).
13. However, when we examine the pleadings made in the writ petition, we find that the petitioner had not pleaded in the writ petition that they or any of them could not apply for the reason that their online candidature was not accepted on account of them being over age.
14. The aforesaid ground of challenge taken by learned counsel for the appellant-petitioner is not supported by the pleadings made in the writ petition, rather it runs contrary to the same and hence the same cannot be accepted.
15. The learned counsel for the appellant-petitioners next submitted that the age limit given in the Advertisement dated 25-05-2021 is violative of Rule 10 of the Rules 2018.
16. We have already referred to the finding of the learned Single in this regard, that Condition No. 6 of the Advertisement clearly provides that the candidates would be entitled to get relaxation in the age limit as per provisions contained in the relevant rules / Government Orders and, therefore, the requirement of age mentioned in the Advertisement is not violative of Rule 10 of the Rules 2018. We are in complete agreement with the aforesaid finding of the learned Single Judge.
17. The learned counsel for the appellant-petitioners next submitted that the Government Order dated 20-11-2020 provides that instead of total marks obtained, only percentile score should be declared and the candidates of the main examination should be short listed on that basis. However, the appellant-petitioners have themselves submitted that subsequently on 05-04-2022, an information was issued by the UPSSSC stating that all such candidates as had obtained a positive normalized score (more than "0") in the PET 2021, have been shortlisted for appearing in the main examination. His submission is that Condition No. 3 of the Advertisement dated 25-05-2021 provides that a merit wise short listing of the candidates will be done on the basis of their score in the PET and it does not refer to normalization score.
18. However, we find that Condition No. 8 of the Advertisement provides that if the test is conducted in more than one shifts, normalization method will be applied. Information in this regard was already been given to the candidates by means of a notification dated 22-05-2019 issued by the UPSSSC. The said notification further stated that the decision in this regard by the UPSSSC will be final. It is not the case of the Appellants-Petitioners that the PET was not conducted in more than one shifts. Therefore, we are unable to accept the aforesaid submission of learned counsel for the appellant-petitioners.
19. For the reasons aforesaid, we do not find any reason to interfere in the judgment and order dated 29.04.2022 passed by the learned Single Judge which is under appeal herein. The special appeal being devoid of merit, is hereby dismissed.
20. However, there will be no order as to costs.
Order Date :- 7.5.2022 Jaswant