# Smt. Harvati & Ors v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-28
- **Case number:** Writ A No. 3151 of 2021
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-harvati-ors-v-state-of-u-p-ors-46336
- **Pages:** 9

## Headnote

A. Service Law - Dying-in-Harness Rules,
1974 - Section 2(a) - Compassionate
Appointment - More than 10 years in
service - Dismissal on the ground that
their services are no more required -
Validity challenged - Held, the State
Government
in
discharge
of
its
constitutional obligations is bound to act
as a model employer - It do not have any
license to continue to irregularly employ
for years together without granting them
any benefits and security - High Court set
aside dismissal order holding it wholly
arbitrary and illegal. (Para 14 and 16)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

10 All. Smt. Harvati & Ors. Vs. State of U.P. & Ors.
375
allegation as made prima facie establishes
the offence and the chances of ultimate
conviction is bleak and no useful purpose is
likely to be served by allowing criminal
proceedings to be continue. In S.W.
Palankattkar & others Vs. State of Bihar,
2002 (44) ACC 168, it has been held by the
Hon'ble Apex Court that quashing of the
criminal proceedings is an exception than a
rule. The inherent powers of the High
Court under Section 482 Cr.P.C itself
envisages three circumstances under which
the inherent jurisdiction may be exercised:-
(i) to give effect an order under the Code,
(ii) to prevent abuse of the process of the
court ; (iii) to otherwise secure the ends of
justice. The power of High Court is very
wide
but
should be
exercised
very
cautiously to do real and substantial justice
for which the court alone exists.

10. The High Court would not embark
upon an inquiry as it is the function of the Trial
Judge/Court. The interference at the threshold
of quashing of the criminal proceedings in
case in hand cannot be said to be exceptional
as it discloses prima facie commission of an
offence. In the result, the prayer for quashing
of summoning order as well as proceeding is
refused. There is no merit in this application
filed under Section 482 Cr.P.C. The applicant
has ample opportunity to raise all the
objections at the appropriate stage.

11. The judgement cited by the applicant
is distinguishable on the facts of the present
case. No other ground has been taken by the
learned counsel for the applicant except the
cheques were lost. The Court does not find
any illegality in the summoning order. The
applicant was rightly summoned by the Court
below.

12. Accordingly, this application U/S
482 Cr.P.C. lacks merit and is dismissed.
----------
(2021)10ILR A375
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.09.2021

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 3151 of 2021

Smt. Harvati & Ors. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandranshu Gour

Counsel for the Respondents:
C.S.C., Sri Suresh Singh

A. Service Law - Dying-in-Harness Rules,
1974 - Section 2(a) - Compassionate
Appointment - More than 10 years in
service - Dismissal on the ground that
their services are no more required -
Validity challenged - Held, the State
Government
in
discharge
of
its
constitutional obligations is bound to act
as a model employer - It do not have any
license to continue to irregularly employ
for years together without granting them
any benefits and security - High Court set
aside dismissal order holding it wholly
arbitrary and illegal. (Para 14 and 16)
Writ petition allowed. (E-1)
Cases relied on :-
1. U.O.I. & ors. Vs K.P. Tiwari; (2003) 9 SCC
129
2. Rajya Krishi Utpadan Mandi Parishad, U.P.
Lucknow & ors. Vs Smt. Suman Singh & anr.;
2011 (2), AWC 2043
3. Ravi Karan Singh Vs St. of U.P. & ors.; 1999
(2) AWC 976
4. Saroj Kumar Vs St. of U.P.; LAWS (ALL) 2019,
11 267
376 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Pawan Kumar Yadav Vs St. of U.P. & ors.;
2010 (8) ADJ 664 (FB)
6. St. of U.P. Vs Munni Devi
7. Secretary, St. of Karn.Vs Umadevi (3); (2006)
4 SCC 1
8. Narendra Kumar Tiwari & ors. Vs St. of
Jharkhand & ors.; (2018) 8 SCC 238
9. Nihal Singh & ors. Vs S. of Pun. & ors.;
(2013) 14 SCC 65
10. Sheo Narain Nagar & ors. Vs St. of U.P. &
anr.; (2018) 13 SCC 432
11. Civil Misc. Writ Petition No. 15505 of 2005;
Pawan Kumar Yadav Vs St. of U.P. & ors.

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. The present petition has been filed
alleging that the husband of all the three
petitioners were working as Work Charged
Employee with the respondent-Corporation
from 1990 to 1994 and continued to work
for more than 10 years. Unfortunately, the
husband of all the three petitioners died on
30.06.2004, 28.01.2005 and 04.11.2005
respectively during their employment.
After the death of the husband of the
petitioners, on an application moved by the
petitioners, they were granted appointment
as is indicated in Annexure No. 2, 4 and 6
of various dates from the year 2004
onwards. The petitioners were subsequently
directed to be paid consolidated salary at
the rate of Rs. 18,000/- per month and the
Petitioners No. 1 & 2 continued to work
since 2004 onwards and since 2005 in
respect of third petitioner. The payments
made to the petitioners are exhibited to the
document subjected as Annexure Nos. 2, 3
and 5 to the writ petition.

2. The grievance of the petitioners is
that after more than 10 years of the service
by the husbands of the petitioners and more
than 15 years of service by the petitioners,
all of sudden, an order dated 9.11.2020 has
been passed to the effect that there is no
need for the service of the petitioners and,
thus, the petitioners were not allowed to
continue to

3. Learned counsel for the petitioner
argues that the State being model employer
cannot exploit persons like the petitioners
in the manner in which they have been
exploited.
Petitioners'
poor
financial
condition never permitted them to protest
their exploitation at the hands of the
respondents
and
they
continued
to
discharge their duties. He further argues
that the petitioners' husbands were work
charged employees and would fall within
the definition of government servant, as
defined under Section 2(a) of Dying-inHarness Rules, 1974 and thus, appointment
of the petitioner has to be treated as
compassionate appointment. He further
argues that compassionate appointments
are never temporary in nature. He further
argues that the husband of the petitioners
were entitled for regularization as is clear
from the note dated 11.6.2019 (Annexure
No. 9, Page 41 of the Writ Petition).
However, all these rights, whichever
accrued in favour of the petitioners, were
not agitated by the petitioners looking into
their poor financial condition. Petitioners,
admittedly, are a Class-IV employee and
are uneducated.

4. This Court had called for a counter
affidavit.

5. Counsel for the respondent, placing
reliance upon the averment made in the
counter affidavit, argues that the petitioners
were never appointed on compassionate
ground, as is clear from the appointment
orders, which are written in hand. He
further argues that the husbands of the
10 All. Smt. Harvati & Ors. Vs. State of U.P. & Ors.
377
petitioners were also on work charged basis
and, thus, no right accrued in favour of the
petitioners for being granted appointment
under the Dying-in-Harness Rules. He
argues that the petitioners were given the
work only looking to the poor financial
status and only on the ground of mercy and
they were paid for years together, only on
the ground of their working in the
department, no right accrued in favour of
the petitioners. He further argues that the
petitioners' husbands were working as
worked charged employee, they were not
covered
within
the
definition
of
government servant as defined under
Section 2(a) of the Dying-in-Harness Rules
and,
thus,
the
appointment
of
the
petitioners cannot be said to be under the
said rules.

6. At this stage, counsel for the
petitioners has relied upon the judgments of
this Court in the cases of Union of India and
others Vs. K.P. Tiwari, (2003) 9 SCC 129,
Rajya Krishi Utpadan Mandi Parishad,
U.P. Lucknow and others Vs. Smt. Suman
Singh and another, 2011 (2), AWC 2043,
Ravi Karan Singh Vs. State of U.P. and
others, 1999 (2) AWC 976 as well as Saroj
Kumar Vs. State of U.P., LAWS (ALL)
2019, 11 267 and the counsel for the
respondents have relied upon the Full Bench
Judgments of this Court in the case of Pawan
Kumar Yadav vs. State of U.P. and others,
2010 (8) ADJ 664 (FB) and State of U.P.
vs. Munni Devi.

7. From the facts, as pleaded and
argued by the parties, this Court has to
decide whether the dismissal of the
petitioners vide order dated 9.11.2020 is
justified or not.

8. The facts that are admitted to the
parties are that the husband of the
petitioners had worked continuously for
more
than
10
years
before
they,
unfortunately, passed away in the year
2004-2005 and on the request so made by
the
petitioners,
the
petitioners
were
employed and kept on an ad hoc basis, and
continued to serve on a fixed salary for
more than 15 years and now, have been
removed on the ground that there is no
requirement.

9. Before the law can be discussed, it
is essential to note that in the note dated
11.6.2019 (Annexure No. 9), it was clearly
stated that if the husbands of the
petitioners, who were enrolled with the
respondents from 1990 to 1994 were alive,
they
would
have
been
entitled
for
regularization
and
thus,
it
was
recommended that the petitioners be
continued to be paid in terms of the earlier
decisions taken for payment of the wages to
the petitioners. The question of employing
on casual, temporary, contractual, daily
wages or ad hoc basis and their status came
up for consideration before the Supreme
Court in the case of Secretary, State of
Karnataka Vs. Umadevi (3), (2006) 4
SCC 1 wherein the Constitutional Bench
discussed the nature of their employment;
discussed the difference between irregular
appointments and illegal appointments, and
as a one time measure, directed the State
Governments and their instrumentalities to
take steps to regularise the services of such
irregularly appointed workers, who had
worked for more than 10 years. It appears
that after the judgment of the Constitution
Bench in the case of Uma Devi (3)
(supra),
the
Governments
and
its
instrumentalities have interpreted the same
to mean that only the employees, who were
given the benefit of regularization, would
be enough for the States and the States can
continue to place under employment
378 INDIAN LAW REPORTS ALLAHABAD SERIES
persons on ad hoc, contractual, temporary,
casual or daily wage basis. In the present
case, it is clearly demonstrated that the
petitioners were permitted to continue for,
as long as, 15 years and have now been
thrown out of employment.

10. The Supreme Court in the case of
Narendra Kumar Tiwari and others Vs.
State of Jharkhand and others, (2018) 8
Supreme Court Cases 238, had the the
occasion to interpret the judgment of the
Supreme Court in the case of Uma Devi (3)
and deprecated the practice of irregular
appointment of daily wage workers and
continuing with them indefinitely, it noticed
that the rule of law requires that the
appointments
should
be
made
in
a
constitutional manner and the State or its
instrumentalities should not be permitted to
perpetuate irregularity in the matter of public
employment. The observations made by the
Supreme Court are recorded as under:

"5. The decision in Umadevi (3)
was intended to put a full stop to the
somewhat
pernicious
practice
of
irregularly or illegally appointing dailywage workers and continuing with them
indefinitely. In fact, in para 49 of the
Report, it was pointed out that the rule
of law requires appointments to be made
in a constitutional manner and the State
cannot be permitted to perpetuate an
irregularity in the matter of public
employment which would adversely
affect those who could be employed in
terms of the constitutional scheme. It is
for this reason that the concept of a onetime measure and a cut-off date was
introduced in the hope and expectation
that the State would cease and desist
from
making
irregular
or
illegal
appointments
and
instead
make
appointments on a regular basis.

6. The concept of a one-time
measure
was
further
explained
in Kesari [State of Karnataka v. M.L.
Kesari, (2010) 9 SCC 247 in paras 9, 10
and 11 of the Report which read as
follows: (SCC pp. 250-51, paras 9-11)

"9.
The
term
"one-time
measure" has to be understood in its
proper perspective. This would normally
mean that after the decision in Umadevi
(3),
each
department
or
each
instrumentality should undertake a onetime exercise and prepare a list of all
casual, daily-wage or ad hoc employees
who have been working for more than
ten years without the intervention of
courts and tribunals and subject them to
a process verification as to whether they
are working against vacant posts and
possess the requisite qualification for the
post and if so, regularise their services.

10. At the end of six months
from the date of decision in Umadevi (3),
cases of several daily-wage/ad hoc/casual
employees were still pending before
courts.
Consequently,
several
departments and instrumentalities did
not
commence
the
one-time
regularisation process. On the other
hand, some government departments or
instrumentalities undertook the one-time
exercise excluding several employees
from consideration either on the ground
that their cases were pending in courts
or due to sheer oversight. In such
circumstances, the employees who were
entitled to be considered in terms of para
53 of the decision in Umadevi (3), will
not lose their right to be considered for
regularisation, merely because the onetime exercise was completed without
considering their cases, or because the
six-month period mentioned in para 53
10 All. Smt. Harvati & Ors. Vs. State of U.P. & Ors.
379
of Umadevi (3) has expired. The onetime exercise should consider all dailywage/ad hoc/casual employees who had
put in 10 years of continuous service as
on
10-4-2006
without
availing
the
protection of any interim orders of
courts or tribunals. If any employer had
held the one-time exercise in terms of
para 53 of Umadevi (3), but did not
consider the cases of some employees
who were entitled to the benefit of para
53
of Umadevi
(3),
the
employer
concerned should consider their cases
also, as a continuation of the one-time
exercise. The one-time exercise will be
concluded only when all the employees
who are entitled to be considered in
terms of para 53 of Umadevi (3), are so
considered.

11. The object behind the said
direction in para 53 of Umadevi (3) is
twofold. First is to ensure that those who
have put in more than ten years of
continuous
service
without
the
protection of any interim orders of
courts or tribunals, before the date of
decision in Umadevi (3) was rendered,
are considered for regularisation in view
of their long service. Second is to ensure
that the departments/instrumentalities
do not perpetuate the practice of
employing persons on daily-wage/ad
hoc/casual basis for long periods and
then periodically regularise them on the
ground that they have served for more
than ten years, thereby defeating the
constitutional or statutory provisions
relating to recruitment and appointment.
The true effect of the direction is that all
persons who have worked for more than
ten years as on 10-4-2006 [the date of
decision in Umadevi (3) without the
protection of any interim order of any
court or tribunal, in vacant posts,
possessing the requisite qualification, are
entitled
to
be
considered
for
regularisation.
The
fact
that
the
employer has not undertaken such
exercise of regularisation within six
months of the decision in Umadevi (3) or
that such exercise was undertaken only
in regard to a limited few, will not
disentitle such employees, the right to be
considered for regularisation in terms of
the above directions in Umadevi (3) as a
one-time measure."

11. After discussion the intent and
mandate of the Constitution of India, the
judgment in the case of Uma Devi (3) case,
the Supreme Court observed as under:

"10. Under the circumstances,
we
are
of
the
view
that
the
Regularisation Rules must be given a
pragmatic
interpretation
and
the
appellants, if they have completed 10
years
of
service
on
the
date
of
promulgation
of
the
Regularisation
Rules, ought to be given the benefit of
the service rendered by them. If they
have completed 10 years of service they
should be regularised unless there is
some
valid
objection
to
their
regularisation like misconduct, etc."

12. The Supreme Court in another
judgment in the case of Nihal Singh and
others Vs. State of Punjab and others,
(2013) 14 Supreme Court Cases 65
considering
the
entitlement
of
regularization observed as under:

"34. This
Court
in S.S.
Dhanoa v. Union of India , (1991) 3 SCC
567 did examine the correctness of the
assessment
made
by
the
executive
government. It was a case where the
Union of India appointed two Election
380 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioners in addition to the Chief
Election Commissioner just before the
general elections to the Lok Sabha.
Subsequent to the elections, the new
Government
abolished
those
posts.
While examining the legality of such
abolition, this Court had to deal with an
argument whether the need to have
additional
Commissioners
ceased
subsequent to the election. It was the
case of the Union of India that on the
date posts were created there was a need
to have additional Commissioners in
view of certain factors such as the
reduction of the lower age-limit of the
voters, etc. This Court categorically held
that: (SCC p. 585, para 27)

"27. ... The truth of the matter
as is apparent from the record is that ...
there
was
no
need
for
the
said
appointments...."

35. Therefore, it is clear that
the existence of the need for creation of
the posts is a relevant factor with
reference
to
which
the
executive
government is required to take rational
decision based on relevant consideration.
In our opinion, when the facts such as
the ones obtaining in the instant case
demonstrate that there is need for the
creation of posts, the failure of the
executive government to apply its mind
and take a decision to create posts or
stop extracting work from persons such
as the appellants herein for decades
together itself would be arbitrary action
(inaction) on the part of the State.

37. We are of the opinion that
neither the Government of Punjab nor
these public sector banks can continue
such a practice consistent with their
obligation to function in accordance with
the Constitution. Umadevi (3) judgment
cannot become a licence for exploitation
by the State and its instrumentalities.

38. For all the abovementioned
reasons, we are of the opinion that the
appellants are entitled to be absorbed in
the services of the State. The appeals are
accordingly allowed. The judgments
under appeal are set aside.

39. We direct the State of
Punjab to regularise the services of the
appellants by creating necessary posts
within a period of three months from
today. Upon such regularisation, the
appellants would be entitled to all the
benefits of services attached to the post
which are similar in nature already in
the cadre of the police services of the
State. We are of the opinion that the
appellants are entitled to the costs
throughout. In the circumstances, we
quantify the costs to Rs 10,000 to be paid
to each of the appellants.

13. In another case of Sheo Narain
Nagar and others Vs. State of Uttar
Pradesh and another, (2018) 13 Supreme
Court Cases 432, while considering the
claim of regularization which was rejected
by the High Court placing reliance on
Umadevi (3) case, the Supreme Coourt
observed as under:

"7. When we consider the
prevailing scenario, it is painful to note
that the decision in Umadevi (3) has not
been properly understood and rather
wrongly
applied
by
various
State
Governments. We have called for the
data in the instant case to ensure as to
how many employees were working on
contract basis or ad hoc basis or dailywage
basis
in
different
State
10 All. Smt. Harvati & Ors. Vs. State of U.P. & Ors.
381
departments. We can take judicial notice
that widely aforesaid practice is being
continued.
Though
this
Court
has
emphasised that incumbents should be
appointed on regular basis as per rules
but new devise of making appointment
on contract basis has been adopted,
employment is offered on daily-wage
basis, etc. in exploitative forms. This
situation was not envisaged by Umadevi
(3). The prime intendment of the
decision
was
that
the
employment
process should be by fair means and not
by back door entry and in the available
pay scale. That spirit of the Umadevi (3)
has been ignored and conveniently
overlooked
by
various
State
Governments/authorities. We regretfully
make the observation that Umadevi (3)
has not been implemented in its true
spirit and has not been followed in its
pith and substance. It is being used only
as a tool for not regularising the services
of incumbents. They are being continued
in service without payment of due salary
for which they are entitled on the basis
of Articles 14, 16 read with Article
34(1)(d) of the Constitution of India as if
they have no constitutional protection as
envisaged in D.S. Nakara v. Union of
India (1983) 1 SCC 305, from cradle to
grave. In heydays of life they are serving
on exploitative terms with no guarantee
of livelihood to be continued and in old
age they are going to be destituted, there
being no provision for pension, retiral
benefits, etc. There is clear contravention
of
constitutional
provisions
and
aspiration of downtrodden class. They
do have equal rights and to make them
equals they require protection and
cannot be dealt with arbitrarily. The
kind of treatment meted out is not only
bad but equally unconstitutional and is
denial of rights. We have to strike a
balance to really implement the ideology
of Umadevi (3). Thus, the time has come
to stop the situation where Umadevi (3)
can be permitted to be flouted, whereas,
this
Court
has
interdicted
such
employment way back in the year 2006.
The
employment
cannot
be
on
exploitative terms, whereas Umadevi (3)
laid down that there should not be back
door entry and every post should be
filled by regular employment, but a new
device has been adopted for making
appointment on payment of paltry
system on contract/ad hoc basis or
otherwise. This kind of action is not
permissible when we consider the pith
and substance of true spirit in Umadevi
(3).

9. The High Court dismissed
the writ application relying on the
decision
in Umadevi
(3).
But
the
appellants were employed basically in
the year 1993; they had rendered service
for three years, when they were offered
the service on contract basis; it was not
the case of back door entry; and there
were no Rules in place for offering such
kind
of
appointment.
Thus,
the
appointment could not be said to be
illegal and in contravention of Rules, as
there were no such Rules available at the
relevant point of time, when their
temporary status was conferred w.e.f. 210-2002. The appellants were required to
be appointed on regular basis as a onetime measure, as laid down in para 53
of Umadevi (3). Since the appellants had
completed 10 years of service and
temporary status had been given by the
respondents with retrospective effect
from 2-10-2002, we direct that the
services of the appellants be regularised
from the said date i.e. 2-10-2002,
consequential benefits and the arrears of
382 INDIAN LAW REPORTS ALLAHABAD SERIES
pay also to be paid to the appellants
within a period of three months from
today."

14. In the light of the law as laid
down, it is clear that the State Government
or State instrumentalities do not have any
license to continue to irregularly employ
for years together without granting them
any benefits and security as has been done
in the present case by the respondents.
Needless to add that it is well settled that
the State Government in discharge of its
constitutional obligations is bound to act as
a model employer whereas the actions of
the respondents in the present case are
outrightly
exploitative
in
nature
and
militate
against
the
constitutional
philosophy of fairness in public actions.

15. The counsel for the respondents
has argued that the husbands of the
petitioners were on work charge basis.
Thus, they would not fall within the
definition of Government employee and
thus, the petitioners could not have been
given
appointment
on
compassionate
grounds and in support of the said
contention, has placed reliance on the Full
Bench judgment of this Court in the case
of Pawan Kumar Yadav Vs. State of UP
and others passed in Civil Misc. Writ
Petition No. 15505 of 2005 where the Full
Bench while interpreting the provisions of
Dying-in-Harness Rules, 1974, (the said
rules
have
been
adopted
by
the
Corporations and are applicable to the
Corporations including the respondentCorporation herein). It is no doubt true
that husbands of the petitioners were on
work charge basis, however, it is equally
important to note that even as per the own
resolution of the respondent-Corporation,
the said employees having worked for
more than 12 to 15 years, if alive, would
have been entitled for regularization.
Without going into the said question, in
the present case, there is no dispute that
the petitioners have continued for more
than 15 years after their appointments and
have been paid consolidated wages, as
such, on their own right also, they cannot
be treated in the manner, in which their
services have been dismissed with, and
would be entitled for regularization having
served for more than 10 years as in terms
of the directions issued by the Supreme
Court in the case of Nihal Singh and
others Vs. State of Punjab and others
(supra) Sheo Narain Nagar and others
Vs. State of Uttar Pradesh and another
(supra).

16. In the light of the law, as
discussed above, I am of the firm view
that the dismissal of the petitioners vide
order dated 9.11.2020 on the ground that
their services are no more required is
wholly arbitrary and illegal, and is liable
to be set aside and is accordingly quashed.
A mandamus is issued to the Respondent
No. 2 to absorb the petitioners in the
services on which they were working and
to take steps to consider the case of the
petitioners for regularisation in terms of
the prevalent policies for regularization. It
is, however, provided that the Respondent
No. 2 shall have all the authority to take
work from the petitioners in any other
department, which are to be performed by
the Class-IV employees.

17. The writ petition stands allowed
in terms of the said order.

18. Copy of the order downloaded
from the official website of this Court
shall be treated as certified copy of the
order.
----------
10 All. Sushil Kumar Singh & Ors. Vs. State of U.P. & Ors.
383
(2021)10ILR A383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 4924 of 2021
connected with other cases

Sushil Kumar Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prashant Mishra, Sri Tarun Agarwal

Counsel for the Respondents:
C.S.C., Sri Vikram Bahadur Yadav, Mrs.
Akansha Sharma

A. Service Law - Post of Sub-Inspector,
Police - Recruitment - No advertisement
for the Recruitment years 2017-18, 201819 and 2019-20 - Age relaxation, claimed
- Held, only because advertisements were
not issued to fill up the vacancies arising
in respective recruitment years 2017-18,
2018-19 and 2019-20 would not mean
that petitioners acquire an unfeasible
right of relaxation in maximum age
prescribed for appointment to the posts,
contrary to what is provided under the
relevant rules. (Para 34)
B. Service Law - UP Sub-Inspector and
Inspector (Civil Police) Service Rules,
2015 - R. 3(o) - Recruitment years -
Meaning - Year of recruitment is defined
to mean a period of twelve months
commencing the first day of July of a
calendar year. (Para 21)
C. Service Law - Policy matter - Judicial
review - Scope of interference - Fixation
of minimum and maximum age is a matter
of policy and lies within the domain of
executive - Held, unless the policy is
found to be contrary to law or otherwise
irrational or perverse no interference
would be warranted. (Para 72)
D. Service Jurisprudence - Right and relief
- Accrual of vacancy - Right to apply -
Grant of relief is directly linked to the
nature of right possessed by one and not
on the basis of declaration of right - Held,
an eligible candidate has no right to apply
against a post on accrual of vacancy.
When a candidate has no right to apply on
a post on accrual of vacancy, therefore, no
right
shall
accrue
to
a
prospective
candidate for consideration of his claim
regarding age relaxation. (Para 26 and 27)
E.
Jurisprudence
-
Doctrine
of
Impossibility - Maxim 'lex non cogit ad
impossibilia' - Court shall not expect the
State authorities to do what cannot
possibly be performed by it. (Para 50)
F. Civil Law - State's undertaking before
the
Court
-
Justifiability
-
Nonobservation of undertaking - It's effect -
Held, the petitioners cannot assert that
non observance of undertaking before the
Supreme
Court
by
holding
annual
recruitment would either create a right in
them to claim relaxation in upper age of
recruitment. (Para 66)
G. Service Jurisprudence - Right to
employment - Principle of legitimate
expectation
-
Ambit
and
Scope
-
Substantive legitimate expectation and
procedural
legitimate
expectation
-
Distinction - Change in policy - It's effect
- Overriding public interest which was the
reason for change in policy has to be given
due weight while considering the claim of
the
respondents
regarding
legitimate
expectation - In order to make out a case
for substantive legitimate expectation, it
will have to be shown that change in
policy is not on account of changed
circumstances or in public interest and
that the action is otherwise arbitrary and
unreasonable. (Para 67 and 68)
Writ petition dismissed. (E-1)
Cases relied on :-