# Prabhat Kumar Tiwari v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1587
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-07
- **Case number:** Writ-A No. 6062 of 2023
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhat-kumar-tiwari-v-state-of-u-p-ors-50144
- **Pages:** 6

## Headnote

Civil Law - Service Matter - Uttar
Pradesh Sub-Inspector and Inspector
(Civil
Police)
Service
(Second
Amendment) Rules, 2016 - Rule 10
provides 'Age-10. A candidate for direct
recruitment must have attained the age
of 21 years and must not have attained
the age of 28 years on the first day of
July
of
a
calendar
year
in
which
vacancies for direct recruitment are
advertised'. Petitioner challenged the
validity of Rule 10. Petitioner, was born
on 01 July, consequently attained the
age of 28 years and one day on the
cutoff date; hence, he was hit by Rule

## Text

5 All. Prabhat Kumar Tiwari Vs. State of U.P. & Ors.
1587
the definition of family. The decision, in
Mohd Ikram (supra), is per incuriam,
accordingly overruled.

23. Having regard to the discussions
hereinabove, the writ petition being devoid
of merit is, accordingly, dismissed. The
impugned Rule would not fall within the
embargo of Article 14 of Constitution of
India.

24. The dismissal of the writ petition,
however,
would
not
preclude
the
respondent-wife
of
the
deceased
Government servant from making an
application for compassionate appointment.
In case such an application is made, the
same shall be considered by the competent
authority on merit.

25. No cost.
----------
(2023) 5 ILRA 1587
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 6062 of 2023

Prabhat Kumar Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Seemat Singh

Counsel for the Respondents:
C.S.C.

Civil Law - Service Matter - Uttar
Pradesh Sub-Inspector and Inspector
(Civil
Police)
Service
(Second
Amendment) Rules, 2016 - Rule 10
provides 'Age-10. A candidate for direct
recruitment must have attained the age
of 21 years and must not have attained
the age of 28 years on the first day of
July
of
a
calendar
year
in
which
vacancies for direct recruitment are
advertised'. Petitioner challenged the
validity of Rule 10. Petitioner, was born
on 01 July, consequently attained the
age of 28 years and one day on the
cutoff date; hence, he was hit by Rule
10. Held: Petitioner was unable to show
how the amendment in the Rules of
2016
makes
Rule
10
manifestly
arbitrary,
merely
because
the rulemaking authority does not want a
candidate for the post of Sub-Inspector
who has attained the age of 28 years on
the cutoff date to be considered eligible
for the post. (Para 24)

Dismissed. (E-5)

List of Cases cited:

1. State of T.N. Vs P. Krishnamurthy, (2006) 4
SCC 517

2. Cellular Operators Association of India & ors.
Vs Telecom Regulatory Authority of India & ors.,
(2016) 7 SCC 703

3. Indian Express Newspapers (Bombay) (P)
Ltd. Vs U.O.I., (1985) 1 SCC 641

4. Khoday Distilleries Ltd. & ors.Vs State of
Karnataka & ors., (1996) 10 SCC 304

5. Sharma Transport Vs Government of A.P. &
ors., (2002) 2 SCC 188

6. U.O.I. Vs Pushpa Rani & ors., (2019) 9 SCC
242

7. Chandigarh Administration Vs Usha Kheterpal
Waie & ors., (2011) 9 SCC 645

8. Maharashtra Public Service Commission Vs
Sandeep Shriram Warade, (2019) 6 SCC 362

9. Punjab National Bank Vs Anit Kumar Das,
2020 SCC Online SC 897
1588 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Zahoor Ahmad Rather Vs Seikh Imtiyaz
Ahmad, (2019) 2 SCC 404

11. Sanjay Kumar Manjul Vs Chairman, UPSC,
(2006) 8 SCC 42

(Delivered by Hon'ble Suneet Kumar, J.
&
 Hon'ble Rajendra Kumar-IV, J.)

1. Heard Sri Seemant Singh, learned
counsel for the petitioner and learned
Standing Counsel for the State-respondent.

2. Petitioner applied for the post of
Sub-Inspector (Civil Police) and other
equivalent
post
pursuant
to
Direct
Recruitment
2020-21
initiated
vide
Notification dated 25 February 2021, by the
second respondent, Uttar Pradesh Police
Recruitment
and
Promotion
Board,
Lucknow (for short ''Board').

3. By the instant petition, petitioner is
challenging the validity of Rule 10 of Uttar
Pradesh Sub-Inspector and Inspector (Civil
Police)
Service
(Second
Amendment)
Rules, 2016 (for short ''Rules 2016').

4. Rule 10 provides for eligibility in
respect of age. The Rule as initially enacted
reads thus:

"Age-10. A candidate for direct
recruitment must have attained the age of 21
years and must not have attained the age of
more than 28 years on the first day of July of
a calendar year in which vacancies for direct
recruitment are advertised:

Provided........."

5. The Rule subsequently came to be
amended in following terms. The amended
Rule reads thus:

"Age-10. A candidate for direct
recruitment must have attained the age of
21 years and must not have attained the
age of 28 years on the first day of July of a
calendar year in which vacancies for direct
recruitment are advertised:

Provided..............."

6. Petitioner is aggrieved that as per
Rule 10 of Rules 2016, a candidate must
not have attained the age of 28 years on the
first day of July of a calendar year. In other
words, the candidate must be aged less than
28 years i.e. the candidate attaining the age
of 28 years on 30 June at 12.00 P.M.
becomes ineligible as he would cross 28
years on first day of July of the calendar
year. As per the earlier Rule it was
mandated that the candidate must not have
attained the age of more than 28 years on
the first day of July of the calendar year,
meaning thereby, the candidate who has
attained 28 years of age on first day of July
was eligible. In other words, the Rule under
challenge mandates that the candidate must
be below 28 years of age as on first July of
the calendar year. The petitioner, herein,
was born on 01 July, consequently, attained
the age of 28 years and one day on the cut
of date i.e. he had attained the age of 28
years, hence, hit by Rule 10.

7. The afore extracted Rule is under
challenge.

8. In this backdrop, it is submitted that
the Rule 10 is manifestly arbitrary and is liable
to be declared ultra vires of Articles 14 and 16
of the Constitution of India.

9.

Rival
submissions
fall
for
consideration.

10. The question that arises is as to
whether the impugned Rule is manifestly
5 All. Prabhat Kumar Tiwari Vs. State of U.P. & Ors.
1589
arbitrary/unreasonable to render it violative
of Article 14 of the Constitution of India.

11. There is a presumption in favour
of constitutionality or validity of a
subordinate legislation and the burden is
upon him who challenges it to show that it
is ultra vires/invalid. It is also well
recognized that subordinate legislation can
be challenged under any of the following
grounds:

"(a)
Lack
of
legislative
competence to make the sub-ordinate
legislation.

(b) Violation of Fundamental
Rights guaranteed under the Constitution
of India.

(c) Violation of any provision of
the Constitution of India.

(d) Failure to conform to the
Statute under which it is made or exceeding
the limits of authority conferred by the
enabling Act.

(e) Repugnancy to the laws of the
land, that is, any enactment.

(f)
Manifest
arbitrariness/unreasonableness
(to
an
extent where the

Court might well say that the
legislature
never
intended
to
give
authority to make such rules)."

(Refer: State of T.N. vs. P.
Krishnamurthy1 & Cellular Operators
Association of India and others vs
Telecom Regulatory Authority Of India
and others2)

12. One of the tests for challenging
the
constitutionality
of
subordinate
legislation
is
that
the
subordinate
legislation
should
not
be
manifestly
arbitrary. Also, it is settled law that
subordinate legislation can be challenged
on any of the grounds available to
challenge
plenary
legislation.
(Refer:
Indian Express Newspapers (Bombay)
(P) Ltd. vs. Union of India3)

13. That takes us to consider the test
of 'manifest arbitrariness'. It is well
explained in Khoday Distilleries Ltd. and
others vs. State of Karnataka and
others4, which reads thus:

"13. . . . The tests of arbitrary
action which apply to executive actions do
not
necessarily
apply
to
delegated
legislation.
In
order
that
delegated
legislation can be struck down, such
legislation must be manifestly arbitrary; a
law which could not be reasonably
expected to emanate from an authority
delegated with the law-making power. In
the case of Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India
[(1985) 1 SCC 641 : 1985 SCC (Tax) 121 :
(1985) 2 SCR 287], this Court said that a
piece of subordinate legislation does not
carry the same degree of immunity which is
enjoyed by a statute passed by a competent
legislature. A subordinate legislation may
be questioned under Article 14 on the
ground
that
it
is
unreasonable;
"unreasonable not in the sense of not
being reasonable, but in the sense that it is
manifestly arbitrary" . . . In India,
arbitrariness is not a separate ground
since it will come within the embargo of
Article 14 of the Constitution. But
subordinate
legislation
must
be
so
arbitrary that it could not be said to be in
1590 INDIAN LAW REPORTS ALLAHABAD SERIES
conformity with the statute or that it
offends Article 14 of the Constitution."

 (emphasis supplied)

14. Also in Sharma Transport vs.
Government of A.P. and others5, the
Supreme Court held as follows:

"25. . . . The tests of arbitrary
action applicable to executive action do not
necessarily apply to delegated legislation.
In order to strike down a delegated
legislation as arbitrary it has to be
established
that
there
is
manifest
arbitrariness. In order to be described as
arbitrary, it must be shown that it was not
reasonable and manifestly arbitrary. The
expression "arbitrarily" means: in an
unreasonable manner, as fixed or done
capriciously or at pleasure, without
adequate
determining
principle,
not
founded in the nature of things, nonrational, not done or acting according to
reason or judgment, depending on the will
alone. . . ."

 (emphasis supplied)

15. It is well settled that the power of
judicial review can be exercised in such
matters only if it is shown that the action of
the
employer
is
contrary
to
any
Constitution or statutory provision or is
patently arbitrary or is vitiated due to mala
fides. It is settled legal position that matters
relating to creation and abolition of posts
formation or structuring and restructuring
of cadres, prescribing mode of recruitment
and qualifications, criteria of selection,
evaluation of candidates/employees falls
within the exclusive domain of the
employer.

16. In Union of India vs. Pushpa
Rani and others6, it was held that Court
and Tribunals can neither prescribe the
qualifications nor sit in appeal over the
judgment of the employer laying down the
criteria and methodology of recruitment
and selection. Paragraph 37 reads thus:

"3........What steps should be
taken for improving efficiency of the
administration is also the preserve of the
employer. The power of judicial review can
be exercised in such matters only if it is
shown that the action of the employer is
contrary to any constitutional or statutory
provision or is patently arbitrary or is
vitiated due to mala fides. The Court
cannot sit in appeal over the judgment of
the employer and ordain that a particular
post be filled by direct recruitment or
promotion or by transfer. The Court has
no role in determining the methodology of
recruitment or laying down the criteria of
selection. It is also not open to the Court to
make comparative evaluation of the merit
of the candidates. The Court cannot
suggest the manner in which the employer
should structure or restructure the cadres
for the purpose of improving efficiency of
administration."

 (emphasis supplied)

17.
Similarly,
in
Chandigarh
Administration vs. Usha Kheterpal Waie
and others7, Supreme Court, in paragraph
22, observed thus:

"22. It is now well settled that it is
for the rule-making authority or the
appointing authority to prescribe the mode
of selection and minimum qualification for
any recruitment. The courts and tribunals
can neither prescribe the qualifications nor
entrench upon the power of the authority
concerned so long as the qualifications
prescribed by the employer is reasonably
relevant and has a rational nexus with the
functions and duties attached to the post
5 All. Prabhat Kumar Tiwari Vs. State of U.P. & Ors.
1591
and are not violative of any provision of the
Constitution, statute and rules. [See J.
Rangaswamy vs. Govt. of A.P. (1990) 1
SCC 288 and P.U. Joshi vs. Accountant
General (2003) 2 SCC 632]. In the absence
of any rules, under Article 309 or statute,
the appellant had the power to appoint
under its general power of administration
and prescribe such eligibility criteria as it
is
considered
to
be
necessary
and
reasonable. Therefore, it cannot be said
that
the
prescription
of
Ph.D.
is
unreasonable."

18. It is settled principle of law that
the employer is at liberty to legislate and
provide the conditions of recruitment and
selection, including, age. The Court would
not
substitute
the
discretion
of
the
employer until it is shown that the Rule
itself is inherently arbitrary to be violative
of Article 14. No such ground has been
raised while challenging the constitutional
validity of Rule 10 of Rules 2016.

19. Accordingly, the employer has the
sole discretion to prescribe qualification, age
and decide the mode of recruitment. The
Court under the garb of judicial review would
not substitute the Rule making authority to
decide what is best suited for the employer in
the recruitment process. Having regard to the
nature of duty, the selected candidates have to
perform, it is always open to the employer to
provide the upper age limit. Mere reduction
of the age by one day would not render the
Rule 10 manifestly arbitrary to make it
contrary to the Constitution.

20. In Maharashtra Public Service
Commission
vs.
Sandeep
Shriram
Warade8, the Court observed as under:

"9. The essential qualifications
for appointment to a post are for the
employer to decide. The employer may
prescribe
additional
or
desirable
qualifications, including any grant of
preference. It is the employer who is best
suited to decide the requirements a
candidate must possess according to the
needs of the employer and the nature of
work. In no case can the Court, in the garb
of judicial review, sit in the chair of the
appointing authority to decide what is best
for
the
employer
and
interpret
the
conditions of the advertisement contrary to
the plain language of the same."

21. In Punjab National Bank vs.
Anit Kumar Das9, the Court observed as
under:

"21. it is for the employer to
determine and decide the relevancy and
suitability of the qualifications for any post
and it is not for the Courts to consider and
assess. A greater latitude is permitted by
the Courts for the employer to prescribe
qualifications for any post. There is a
rationale behind it. Qualifications are
prescribed keeping in view the need and
interest of an Institution or an Industry or
an establishment as the case may be. The
Courts are not fit instruments to assess
expediency or advisability or utility of such
prescription of qualifications......"

22. Similarly, in Zahoor Ahmad
Rather vs. Seikh Imtiyaz Ahmad10,
Supreme
Court
made
the
following
observation:

"27. The state is entrusted with
the authority to assess the needs of its
public
services.
Exigencies
of
administration, it is trite law, fall within
the domain of administrative decision
making. The state as a public employer
may
well
take
into
account
social
1592 INDIAN LAW REPORTS ALLAHABAD SERIES
perspectives that require the creation of job
opportunities across the societal structure.
All these are essentially matters of policy.
Judicial review must tread warily"

23. Supreme Court similarly in
Sanjay Kumar Manjul vs. Chairman,
UPSC11, observed as under:

"25. The statutory authority is
entitled to frame statutory rules laying
down terms and conditions of service as
also the qualifications essential for holding
a particular post. It is only the authority
concerned who can take ultimate decision
therefore.

27. It is well settled that the
superior courts while exercising their
jurisdiction under articles 226 or 32 of the
Constitution of India ordinarily do not
direct
an
employer
to
prescribe
a
qualification for holding a particular
post."

(emphasis supplied)

24. On specific query, learned counsel
for the petitioner is unable to show as to
how the amendment in the Rules 2016
makes Rule 10 manifestly arbitrary merely
for the reason that the Rule making
authority does not want a candidate for the
post of Sub-Inspector who has attained the
age of 28 years on the cut of date to be
considered eligible for the post.

25. Having regard to the discussions
hereinabove, the writ petition being devoid
of merit is, accordingly, dismissed.
----------
(2023) 5 ILRA 1592
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE
THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 6089 of 2023

Satya Narain Dubey ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Kushwaha

Counsel for the Respondents:
A.S.G.I.

Civil Law - Service Matter - Railway
Servants (Discipline & Appeal) Rules, 1968
- Rule 14(1) - Where any penalty is
imposed on a Railway servant on the
ground of conduct which has led to his
conviction on a criminal charge, the
disciplinary authority may consider the
circumstances of the case and make such
orders thereon as it deems fit. Issue:
Whether the disciplinary authority is
required to pass a reasoned and speaking
order under Rule 14(1) of the Rules,
1968? Held: The requirement of the Rule
mandates the disciplinary authority to
'consider the circumstances' of the case,
i.e., the trial court judgment leading to the
conviction of the officer. The conduct/role
which led to the conviction of the officer
on a criminal charge has to be considered.
The disciplinary authority is not required
to enter into the merits/evidence of the
trial proceedings. The Rule does not
mandate the authority to pass a reasoned
and
speaking
order.
The
disciplinary
authority is not required to sit in appeal
on the findings returned by the trial court
convicting the government servant. In the
instant case, the order of punishment
imposed by the disciplinary authority
categorically records that the explanation
of the petitioner was considered and that
the charge against the petitioner in the
trial was duly proved. The Court held that
it was sufficient compliance with Rule
14(1) of the Rules, 1968. (Para 16, 17)

Dismissed. (E-5)