# Smt. Sushila Devi & Ors v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 975
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-20
- **Case number:** Writ -A No. 9466 of 2018
- **Bench:** Attau Rahman Masoodi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sushila-devi-ors-v-state-of-u-p-ors-51035
- **Pages:** 10

## Headnote

A. Service Law - Selection - Promotion -
Uttar Pradesh Child Development and
Nutrition (Subordinate) Service (Second
Amendment) Rules, 1998 - Rule 5.

Test of unreasonableness - A policy can be
challenged
on
the
ground
of
being
unreasonable.
If
a
decision
on
a
competent matter is so unreasonable that
no reasonable authority could ever have
come to it, then the courts can interfere.
...It
is
not
what
the
court
considers
unreasonable, a different thing altogether. If it
is what the court considers unreasonable, the
court may very well have different views to that
of a local authority on matters of high public
policy of this kind. The effect of the legislation is
not to set up the court as an arbiter of the
correctness of one view over another. (Para 23)

B. Examining challenge to the Rule laying
down the policy of fixing an upper age
limit of 50 years for Anganwadi workers to
apply to selection for direct recruitment to
the post of Mukhya Sevika on the test of
Wednesbury unreasonableness. (Para 24)

The St. Government amended the Rules of
1992 in the year 1996, whereby it was
provided that 25% posts of Mukhya Sevika
would be filled through interview from
those
Anganwadi
Workers
who
had
completed 10 years of their engagement
as Anganwadi Worker and were not more than
45 years of age as on the first day of the
recruitment year. The Rules were further
amended in the year 1998 by increasing the
aforesaid reservation from 25% to 50%
and the criterion of recruitment was
changed from interview to merit. (Para 25)

The upper age limit for consideration for
selection to the post of Mukhya Sevika
from amongst the persons working as
Anganwadi Workers was previously fixed
as 45 years, which was enhanced to 50
years by the Fourth Amendment Rules.

There is no unreasonableness in the
explanation of the St. that the object
976 INDIAN LAW REPORTS ALLAHABAD SERIES
behind making amendment in the Rules of
1992, which is, that those Anganwadi Workers
who are working on honorarium basis and who
do not have any promotional avenues, be
provided with the benefit of participating in
selection process for recruitment to the post
of Mukhya Sevika and the object of the
Fourth Amendment made in the Rules of
1992
was
to
provide
participation
of
maximum number of Anganwadi Workers to
be considered for selection on the post. The
object of enhancing the upper age limit is that
the persons appointed as Mukhya Sevika may
serve for a decade before they attain the age
of superannuation. The fixation of upper age
limit at 50 years cannot be said to be having
no reasonable nexus with the object sought
to
be
achieved.
The
petitioners
are
challenging the fixation of the upper age limit
altogether and they claim that all Anganbadi
workers should be allowed to participate in
the recruitment irrespective of their age.
(Para 27, 29)

C. No individual candidate can claim a
vested right to age relaxation, which lies
in
the
discretion
of
the
appointing
authority. Eligibility criteria should be
uniform and there cannot be any scope or
arbitrary selection. A candidate cannot
have a vested right to claim an exemption
from a uniformly applicable criteria. A
selective grant of an age relaxation will
cause serious prejudice in the process of
selection rendering the process arbitrary.
(Para 30)

Since the Fourth Amendment Rules, 2006
have universal application, those are not
discriminatory.
The
Second
Amendment
Rules, 1998 and the Fourth Amendment
Rules, 2006 do not violate the letter and spirit
of any superior legislation and the same are
not ultra vires the provision of any law. (Para
31, 32)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

12 All. Smt. Sushila Devi & Ors. Vs. State of U.P. & Ors.
975
Government
shall
decide
the
petitioner's claim regarding condonation of
delay under the proviso to Rule 5 of the
Rules of 1974 alone, taking a decision
in the matter within a period of two
months of receipt of records from the
Commandant. If the delay is condoned
by the State Government, the records
would
be
sent
back
to
the
Commandant, 41st Battalion, P.A.C.,
Ghaziabad, who will then pass orders
on the merits of the petitioner's claim
for
compassionate
appointment
in
accordance with law, within a period of
four weeks of receipt of the State
Government's decision.

18. There shall be no order as to
costs.

19. The Registrar (Compliance) is
directed to communicate this order to the
Commandant, 41st Battalion, Provincial
Armed Constabulary, Ghaziabad through
the learned Chief Judicial Magistrate,
Ghaziabad.
----------
(2024) 12 ILRA 975
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ -A No. 9466 of 2018
With
Writ-A No. 10066 of 2018

Smt. Sushila Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rajeev Narayan Pandey, Atul Kumar Dwivedi,
Shivam Sharma
Counsel for the Respondents:
C.S.C.

A. Service Law - Selection - Promotion -
Uttar Pradesh Child Development and
Nutrition (Subordinate) Service (Second
Amendment) Rules, 1998 - Rule 5.

Test of unreasonableness - A policy can be
challenged
on
the
ground
of
being
unreasonable.
If
a
decision
on
a
competent matter is so unreasonable that
no reasonable authority could ever have
come to it, then the courts can interfere.
...It
is
not
what
the
court
considers
unreasonable, a different thing altogether. If it
is what the court considers unreasonable, the
court may very well have different views to that
of a local authority on matters of high public
policy of this kind. The effect of the legislation is
not to set up the court as an arbiter of the
correctness of one view over another. (Para 23)

B. Examining challenge to the Rule laying
down the policy of fixing an upper age
limit of 50 years for Anganwadi workers to
apply to selection for direct recruitment to
the post of Mukhya Sevika on the test of
Wednesbury unreasonableness. (Para 24)

The St. Government amended the Rules of
1992 in the year 1996, whereby it was
provided that 25% posts of Mukhya Sevika
would be filled through interview from
those
Anganwadi
Workers
who
had
completed 10 years of their engagement
as Anganwadi Worker and were not more than
45 years of age as on the first day of the
recruitment year. The Rules were further
amended in the year 1998 by increasing the
aforesaid reservation from 25% to 50%
and the criterion of recruitment was
changed from interview to merit. (Para 25)

The upper age limit for consideration for
selection to the post of Mukhya Sevika
from amongst the persons working as
Anganwadi Workers was previously fixed
as 45 years, which was enhanced to 50
years by the Fourth Amendment Rules.

There is no unreasonableness in the
explanation of the St. that the object
976 INDIAN LAW REPORTS ALLAHABAD SERIES
behind making amendment in the Rules of
1992, which is, that those Anganwadi Workers
who are working on honorarium basis and who
do not have any promotional avenues, be
provided with the benefit of participating in
selection process for recruitment to the post
of Mukhya Sevika and the object of the
Fourth Amendment made in the Rules of
1992
was
to
provide
participation
of
maximum number of Anganwadi Workers to
be considered for selection on the post. The
object of enhancing the upper age limit is that
the persons appointed as Mukhya Sevika may
serve for a decade before they attain the age
of superannuation. The fixation of upper age
limit at 50 years cannot be said to be having
no reasonable nexus with the object sought
to
be
achieved.
The
petitioners
are
challenging the fixation of the upper age limit
altogether and they claim that all Anganbadi
workers should be allowed to participate in
the recruitment irrespective of their age.
(Para 27, 29)

C. No individual candidate can claim a
vested right to age relaxation, which lies
in
the
discretion
of
the
appointing
authority. Eligibility criteria should be
uniform and there cannot be any scope or
arbitrary selection. A candidate cannot
have a vested right to claim an exemption
from a uniformly applicable criteria. A
selective grant of an age relaxation will
cause serious prejudice in the process of
selection rendering the process arbitrary.
(Para 30)

Since the Fourth Amendment Rules, 2006
have universal application, those are not
discriminatory.
The
Second
Amendment
Rules, 1998 and the Fourth Amendment
Rules, 2006 do not violate the letter and spirit
of any superior legislation and the same are
not ultra vires the provision of any law. (Para
31, 32)

Writ petition dismissed. (E-4)

Precedent followed:

1. St. of U.P. & ors. Vs Shanti Devi, Civil Appeal
No. 5207 of 2022, decided on 08.08.2022 (Para
14)
2. Associated Provincial Picture Houses, Ltd. Vs
Wednesbury Corporation, [1948] 1 K.B. 223
(Para 23)

Precedent distinguished:

1. Zee Telefilms Ltd. & anr. Vs UOI & ors.,
(2005) 4 SCC 649 (Para 13)

2. Arnit Das Vs St. of Bihar, (2000) 5 SCC 488
(Para 13)

3. Urmila Tripathi & anr. Vs St. of U.P., 1998 (16)
LCD 1227 (Para 14)

Present petition seeks quashing of a
Circular dated 09.01.2018 issued by the
Director, Child Development Services and
Nutrition, U.P. Lucknow to all the District
Program Officers/In- charge in the St. of
U.P. directing them to collect applications
for selection on the post of Mukhya
Sevika.
The
petitioners
have
further
sought a Writ of Mandamus commanding
the opposite parties to consider them for
promotion to the post of Mukhya Sevika.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Shivam Sharma,
learned counsel for the petitioners and
learned Standing Counsel appearing for the
State-respondents.

2. Both the aforesaid writ petitions
have been filed by the persons, who were
working as Anganwadi Workers under
Directorate of Child Development Services
and Nutrition, Uttar Pradesh challenging
the vires of Rule 5 of Uttar Pradesh Child
Development and Nutrition (Subordinate)
Service (Second Amendment) Rules, 1998
(here-in-after referred to as 'the Second
Amendment Rules, 1998) as well as Uttar
Pradesh Child Development and Nutrition
(Subordinate) Service (4th Amendment)
Rules, 2006 (here-in-after referred to as
'the Fourth Amendment Rules, 2006) as
ultra vires to the extent that the aforesaid
12 All. Smt. Sushila Devi & Ors. Vs. State of U.P. & Ors.
977
rules prescribed cut off age of 45 to 50
years respectively for Anganwadi Workers
to be considered for selection for the post
of Mukhya Sevika.

3. The petitioners have also sought
quashing of a Circular dated 09.01.2018
issued by the Director, Child Development
Services and Nutrition, U.P. Lucknow to all
the District Program Officers/In-charge in
the State of U.P. directing them to collect
applications for selection on the post of
Mukhya Sevika from such Anganwadi
Workers, who have completed 10 years of
service on 01.07.2017 and who are not
more than 50 years of age. The petitioners
have further sought a Writ of Mandamus
commanding
the
opposite
parties
to
consider them for promotion to the post of
Mukhya Sevika.

4. Writ-A No.9466 of 2018 has
been filed by three petitioners, whereas
Writ-A No.10066 of 2018 has been filed by
eighteen petitioners. As the questions
involved in both the writ petitions are the
same, the same are being decided by this
common judgment.

5. All the petitioners have
completed more than ten years of service as
Anganwadi Workers and they are claiming
promotion to the post of Mukhya Sevika
and their contention is that the fixation of
cut off age of 50 years is arbitrary and it
disentitles more experienced Anganwadi
Workers
for
being
considered
for
promotion to the post of Mukhya Sevika.

6. In the counter affidavit filed on
behalf of the opposite parties, it has been
stated that Anganwadi Workers are engaged
on payment of honorarium basis and they
are
not
in
regular
service
of
the
establishment.
No
gradation
list
of
Anganwadi Workers is prepared like
regular employees and there is no provision
for promotion of Anganwadi Workers.

7. On 05.04.2018, an interim order
was passed by this Court by providing that
the applications of the petitioners for
promotion to the post of Mukhya Sevika
may be accepted by the opposite parties,
however, any decision taken on such
consideration of their claim would not be
declared.

8. On 24.04.2023 this Court had
passed an order recording the submission
of the learned counsel for the petitioners
that there does not appear to be any nexus
with the object sought to be achieved for
making amendment in the Service Rules.
As the counter affidavit is silent on this
aspect, the State was directed to file a
supplementary counter affidavit. The State
Government has filed a supplementary
affidavit stating that this was also a long
standing demand of U.P. Rajya Anganwadi
Karamchari Sangh to increase the upper
age limit of 45 years to 50 years for
consideration for selection to the post of
Mukhya Sevika.

9.
 A
second
supplementary
affidavit was also filed annexing therewith
a copy of the Government Order dated
21.03.2023 which provides exhaustive
mechanism for appointment of Anganwadi
Workers
on
honorarium
basis.
The
recruitment age of Anganwadi Workers is
18 years to 35 years, whereas the
recruitment age of Mukhya Sevika is 21
years to 40 years. The object behind
making amendment in the U.P. Child
Development and Nutrition (Subordinate)
Service Rules, 1992 (here-in-after referred
to as 'the Rules of 1992') is that those
Anganwadi Workers who are working on
978 INDIAN LAW REPORTS ALLAHABAD SERIES
honorarium basis and who do not have any
promotional avenues, be provided with the
benefit of participating in selection process
for recruitment to the post of Mukhya
Sevika.
The
object
of
the
Fourth
Amendment made in the Rules of 1992 was
to provide participation of maximum
number of Anganwadi Workers to be
considered for selection on the post of
Mukhya Sevika.

10. While challenging the vires of
the Rules prescribing maximum age for
selection to the post of Mukhya Sevika, Sri
Shivam Sharma, the learned counsel for the
petitioners, has submitted that fixation of
cut off age of 50 years has no reasonable
nexus with the purpose sought to be
achieved, which would be selecting the
most experienced Anganwadi Workers,
who would be the best and most suitable
candidates. Putting a cap on the age limit
for selection when the criterion for
selection is age based merit, is selfcontradictory. By fixing cut off age of 50
years, Anganwadi Workers, who are
younger to the petitioners and who have
lesser experience of working as Anganwadi
Workers are eligible for selection, whereas
the petitioners, who are more experienced
Anganwadi Workers, have been ousted
from the zone of consideration. The
deprivation of Anganwadi Workers, aged
more than 50 years, who are more
experienced,
from
participation
in
selection for the post of Mukhya Sevika
is arbitrary and unreasonable. He has
further submitted that earlier the criterion
for selection to the post of Mukhya
Sevika
was
interview
and
by
the
amendment made in the year 1998, it has
been made merit, which is determined by
experience. One mark is awarded for each
year's service. Thus, longer the number
of years, higher would be the merit of the
candidate.
In
these
circumstances,
fixation of upper limit of 50 years of age
is unreasonable.

11. The learned counsel for the
petitioners has also submitted that the
fixation of upper age limit takes away the
fundamental right of the petitioners to be
considered for promotion and, therefore,
the provision for fixation of upper age
limit is ultra vires and is liable to be
quashed.

12. Per contra, the learned
Standing Counsel has submitted that the
post
of
Anganwadi
Worker
is
an
honorarium based post. Neither salary is
paid to Anganwadi Workers, nor is there
any
provision
for
their
promotion.
Appointments to the post of Mukhya
Sevika are not made by way of promotion
but by direct recruitment. 50% of the
posts of Mukhya Sevika have been
reserved for selection from amongst those
Anganwadi Workers, who have not
completed 50 years of age. Earlier this
age limit was 45 years, which was
subsequently increased to 50 years as per
the long standing demand of U.P. Rajya
Anganwadi
Karamchari
Sangh,
to
provide for participation of maximum
number
of
Anganwadi
Workers
in
selection for the post of Mukhya Sevika.
The post of Mukhya Sevika in the pay
scale of Rs.1350-2200 is a regular post in
the establishment. Unless the upper age
limit of 50 years is fixed for selection to
the post of Mukhya Sevika, the persons
appointed on the post of Mukhya Sevika
will not get the minimum of ten years of
service, in which case they will not be
eligible for pensionary benefits.

13. Learned counsel for the
petitioners has relied upon the judgments in
12 All. Smt. Sushila Devi & Ors. Vs. State of U.P. & Ors.
979
the cases of Zee Telefilms Ltd. & another
vs. UOI & Others: (2005) 4 SCC 649 and
Arnit Das vs. State of Bihar: (2000) 5
SCC 488.

14. The learned Standing Counsel
has relied upon the judgments in the cases
of Urmila Tripathi and another vs. State
of U.P. :1998 (16) LCD 1227 and State of
U.P. and other vs. Shanti Devi: Civil
Appeal No. 5207 of 2022 decided on
08.08.2022.

15. U.P. Child Development and
Nutrition (Subordinate) Service Rules, 1992
were promulgated on 16.11.1992. Part III of
the aforesaid Rules deals with Recruitment.
Rule 5(4) provides that recruitment of
Mukhya Sevika shall be made by direct
recruitment through Departmental Selection
Committee on the basis of interview.
Essential qualification for selection to the
post of Mukhya Sevika is a Bachelor's
Degree in Arts with Sociology or Social
Work or Home Science as one of the subjects
or Nutrition and Child Development from a
University established by law in India or a
degree recognized by the government as
equivalent thereto. Preferential qualification
is having practical experience of doing
welfare work amongst children and women
in rural areas. The candidate must have
attained the age of 21 years and must not
have attained the age of more than 35 years
on the first day of the year of the recruitment
in which vacancies for direct recruitment are
advertised by the Commission. The upper age
limit shall be greater in respect of candidates
belonging to Scheduled Castes, Scheduled
Tribes and such other category as may be
notified by the government.

16. U.P. Child Development and
Nutrition (Subordinate) Service (Second
Amendment) Rules, 1998 amended the
aforesaid Rules so as to provide that 50%
posts of Mukhya Sevika will be filled by
direct
recruitment
on
the
basis
of
competitive examination and interview
held by a Selection Committee and 50%
posts shall be filled by direct selection from
Anganwadi Workers, who have passed
High School or equivalent examination,
who
have
completed
10
years
of
continuous service and who have not
attained 45 years of age on the initial date
of the year of recruitment.

17. The U.P. Child Development
and Nutrition (Subordinate) Service (4th
Amendment) Rules, 2006 further amended
the aforesaid Rules so as to enhance the
upper age of limit from 45 years to 50
years.

18. Thus, it is clear that the post of
Mukhya
Sevika
is
filled
by
direct
recruitment and not by promotion. The
essential qualification for appointment to
the post of Mukhya Sevika is a Bachelor's
Degree in Arts with Sociology or Social
Work or Home Science as one of the
subjects
or
Nutrition
and
Child
Development from a University established
by law in India or a degree recognized by
the government as equivalent thereto. 50%
posts have been reserved for direct
recruitment from amongst such Anganwadi
Workers, as have passed High School
examination, have completed more than ten
years of service and have not attained the
age of 50 years. It appears that experience
of working as Anganwadi Workers for a
period of ten years or more has been treated
as equivalent to the qualification of
possessing a Bachelor's Degree in Arts
with Sociology or Social Work or Home
Science as one of the subjects or Nutrition
and Child Development from a University
established by law in India or a degree
980 INDIAN LAW REPORTS ALLAHABAD SERIES
recognized
by
the
government
as
equivalent thereto. Anganwadi Workers
work on fixed honorarium basis.

19. U.P. Child Development and
Nutrition (Subordinate) Service Rules,
1992 contain provisions for recruitment of
Field Reporter, Nutritionist, Law Assistant,
Mukhya Sevika, Social Work Instructor,
Health Instructor, Pre-School Instructor,
Statistical
Assistant,
Investigator-cumComputor (Sic), Senior Auditor, Auditor,
Assistant
Accountant
(Headquarters),
Accounts Clerk and Junior Accounts
Clerks. It does not make any mention of
Anganwadi Workers. Therefore, it is clear
that Anganwadi Workers are not a part of
regular establishment working under the
U.P. Child Development and Nutrition
(Subordinate) Service Rules, 1992. There is
no provision for promotion of persons
working on the post of Anganwadi
Workers. Mukhya Sevikas are appointed by
way of direct recruitment and not by way
of promotion.

20. Upper age limit of 45 years
fixed by the Second Amendment Rules was
challenged before this Court in the case of
Urmila
Tripathi
(Supra)
and
while
upholding the decision, it was held as
under: -

"It is evident from the
aforesaid Rule that upper age limit
of forty five years in the year of
recruitment as provided originally
remained the same. The amendment
was only in the procedure of
appointment.
The
promotees
originally used to be appointed on
the basis of interview. The amended
Rule changed the procedure and
provided
for
appointment/promotion
in
accordance with Rule 15 of the
Rules. The submission made by the
learned Counsel for the petitioner
that the Second Amendment in the
Rules provided for the upper age
limit as 45 years and the same was
invalid,
therefore,
cannot
be
accepted. The petitioners since the
very beginning of their services
knew the fact that upper age limit
for promotion to the post of
Mukhya Sewika was forty five years
have got no right to challenge the
same. Further the fixation of upper
age limit as 45 years for promotion
on the post of Mukhya Sevika is
quite reasonable, judging the same
from the angle of service which are
required
to
be performed
by
Mukhya Sevikas Mukhya Sevikas
are required to do supervisory work
in the villages. They are supposed
to supervise the work of anganbari
centres by visiting from place to
place. The ladies beyond forty five
years of age are, therefore, not fit
to
be
appointed
as
Mukhya
Sewikas. In my opinion, the said
Rule is neither arbitrary nor
discriminatory in any manner."

21. Sri Shivam Sharma, the
learned counsel for the petitioners has
relied upon judgments rendered in the case
of Zee Telefilms Ltd. (Supra) and Arnit
Das (Supra), wherein it has been held that a
decision is not an authority for the
proposition which did not fall for its
considerations. He has submitted that the
Fourth Amendment Rules, 2006 were not
there for consideration before this Court
while deciding the case of Urmila Tripathi
(Supra) and the question of lack of nexus
between fixation of upper age limit and the
object sought to be achieved was not
12 All. Smt. Sushila Devi & Ors. Vs. State of U.P. & Ors.
981
decided in that writ petition and therefore
the decision in the case of Urmila Tripathi
(Supra) is not binding upon this Court.

22. We agree with the aforesaid
submission made by the learned counsel for
the petitioners. Even otherwise, Urmila
Tripathi (Supra) was decided by a learned
Single Judge and it is not binding upon this
Division Bench. We are examining the plea
of fixation of upper age limit being ultra
vires on the basis of merits of the
submissions made in support thereof
without being bound by the ratio laid down
in the case of Urmila Tripathi (Supra).

23. A policy can be challenged on
the ground of being unreasonable. The test
of unreasonableness was laid down in
Associated Provincial Picture Houses,
Limited V. Wednesbury Corporation:
[1948] 1 K.B. 223, in which the defendant
corporation had granted a license to the
plaintiff company, who was the owner and
licensee of Gaumont Cinema, Wednesbury,
Staffordshire,
a
licence
to
give
performances on Sunday under Section 1
(1) of the Sunday Entertainments Act,
1932; but the license was granted subject to
a condition that "no children under the age
of fifteen years shall be admitted to any
entertainment whether accompanied by an
adult or not." The plaintiffs brought an
action for a declaration that the condition as
ultra
vires
and
unreasonable.
While
dismissing the claim, the King's Bench laid
down the following proposition of law,
which came to be known as 'the
Wednesbury principle' and which is being
consistently followed by the Court's in
India: -

"It is true to say that, if a
decision on a competent matter is
so unreasonable that no reasonable
authority could ever have come to
it, then the courts can interfere. ...It
is not what the court considers
unreasonable, a different thing
altogether. If it is what the court
considers unreasonable, the court
may very well have different views
to that of a local authority on
matters of high public policy of this
kind. Some courts might think that
no children ought to be admitted on
Sundays at all, some courts might
think the reverse, and all over the
country I have no doubt on a thing
of that sort honest and sincere
people hold different views. The
effect of the legislation is not to set
up the court as an arbiter of the
correctness of one view over
another. It is the local authority
that are set in that position and,
provided they act, as they have
acted, within the four corners of
their jurisdiction, this court, in my
opinion, cannot interfere."

24. We have to examine the
challenge to the Rule laying down the
policy of fixing an upper age limit of 50
years for Anganwadi workers to apply to
selection for direct recruitment to the post
of
Mukhya
Sevika
on
the
test
of
Wednesbury unreasonableness.

25. In furtherance of Child
Development
and
Nutrition
Project
launched by the Central Government, U.P.
Child
Development
and
Nutrition
(Subordinate) Service Rules, 1992 were
framed by the State Government under
Article 309 of the Constitution of India.
The post of Mukhya Sevika in the pay scale
of Rs.1350-2200 was created under these
rules and the post was to be filled by direct
recruitment. Essential qualification for
982 INDIAN LAW REPORTS ALLAHABAD SERIES
selection to the post of Mukhya Sevika is a
Bachelor's Degree in Arts with Sociology
or Social Work or Home Science as one of
the subjects or Nutrition and Child
Development from a University established
by law in India or a degree recognized by the
government
as
equivalent
thereto.
Preferential qualification is having practical
experience of doing welfare work amongst
children and women in rural areas. The
candidate must have attained the age of 21
years and must not have attained the age of
more than 35 years on the first day of the year
of the recruitment in which vacancies for
direct recruitment are advertised by the
Commission. Considering the plight of
Anganwadi
Workers,
the
Central
Government wrote a letter dated 28.04.1995
to the State Government for making a
provision for reservation of 25% posts of
Mukhya Sevika for being filled up by
Anganwadi Workers. Accordingly, the State
Government amended the Rules of 1992 in
the year 1996, whereby it was provided that
25% posts of Mukhya Sevika would be filled
through interview from those Anganwadi
Workers who had completed ten years of
their engagement as Anganwadi Worker and
were not more than 45 years of age as on the
first day of the recruitment year. The Rules
were further amended in the year 1998 by
increasing the aforesaid reservation from
25% to 50% and the criterion of recruitment
was changed from interview to merit.

26.

Rule
4(2)
of
Child
Development and Nutrition (Subordinate)
Rules, 1992 as amended by the Second
Amendment Rules notified on 19.06.1998
and by the Fourth Amendment Rules
notified
on
25.07.2006
provides
as
follows:-

"50 percent high school or
equivalent
examination
passed
Anganbadi Karyakatris, who have
completed ten years of continuous
service and have not attained the
age of more than 50 years from the
initial date of their year of
recruitment, in accordance with
Rule
15-B
through
selection
committee by direction recruitment.
(1) Selection Committee in
the following manner shall prepare
the eligibility list of the candidates-
(a) Each candidate will be
given 10 points for 10 years of
eligible service and after one point
for each subsequent full year of
service.
(b) Each candidate will be
given three points, two points and
one point for first division, second
division and third division in high
school and higher examinations.
(2) Under section (a) and
(b) of Sub Rule (3) all the marks
obtained by each candidate shall
be added and on the basis of total
marks obtained the final eligibility
list will be prepared. In case two or
more
candidates
obtain
equal
marks then the candidate senior in
age shall be placed on top of the
eligibility
list.
The
name
of
candidates in the list shall be more
than the number of vacant posts
(more than 50 percent). Selection
Committee shall forward the list to
the Appointing Authority."

27. The upper age limit for
consideration for selection to the post of
Mukhya Sevika from amongst the persons
working as Anganwadi Workers was
previously fixed as 45 years, which was
enhanced to 50 years by the Fourth
Amendment Rules on the demand of U.P.
Rajya Anganwadi Karamchari Sangh so as
12 All. Smt. Sushila Devi & Ors. Vs. State of U.P. & Ors.
983
to provide for participation of maximum
number
of
Anganwadi
Workers
for
consideration for recruitment to the post of
Mukhya Sevika, which cannot be said to be
unreasonable
and
it
has
not
been
challenged by any person. The petitioners
are challenging the fixation of the upper
age limit altogether and they claim that all
Anganbadi workers should be allowed to
participate in the recruitment irrespective of
their age.

28. In this regard, it should be
noted that all appointments to government
services are subject to a maximum age of
the candidate at the cut-off date fixed by
the employer. The post of Mukhya Sevika
itself carries the upper age limit of 35 years
for candidates who possess a Bachelor's
Degree in Arts with Sociology or Social
Work or Home Science as one of the
subjects
or
Nutrition
and
Child
Development. Fixation of upper age limit
for Anganwadi workers who are not
Graduate, but have merely passed the High
school examination and who possess at
least 10 years' work experience, cannot be
said to be unreasonable and, in any case,
this decision cannot be said to be so
unreasonable as no reasonable person or
authority
could
have
arrived
at
it.
Enhancement of maximum cut off age from
45 years to 50 years cannot give rise to a
ground for claiming waiver of upper age
limit altogether so as to make all
Anganwadi Workers, irrespective of their
age,
eligible
for
consideration
for
recruitment to the post of Mukhya Sevika.

29. Regarding the submission of
the learned Counsel for the petitioner, that
the fixation of upper age limit has no
reasonable nexus with the purpose sought
to
be
achieved,
we
find
no
unreasonableness in the explanation of the
State that the object behind making
amendment in the Rules of 1992 is that
those Anganwadi Workers who are working
on honorarium basis and who do not have
any promotional avenues, be provided with
the benefit of participating in selection
process for recruitment to the post of
Mukhya Sevika and the object of the
Fourth Amendment made in the Rules of
1992 was to provide participation of
maximum number of Anganwadi Workers
to be considered for selection on the post of
Mukhya Sevika. The object of fixing the
upper age limit at 50 years is that the
persons appointed as Mukhya Sevika may
serve for a decade before they attain the
age of superannuation. The fixation of
upper age limit at 50 years cannot be said
to be having no reasonable nexus with the
object sought to be achieved.

30. In the case of State of U.P.
and others vs. Shanti Devi (Supra), the
issue involved was whether an applicant
was entitled to claim age relaxation in
making promotion to the post of Mukhya
Sevika, as was ordered by a learned Single
Judge of this Court, which was affirmed by
a Division Bench in a Special Appeal.
While
allowing
the
appeal,
Hon'ble
Supreme Court has held that the respondent
who was working as Anganwadi Worker
since the year 1987, had crossed the upper
age limit of 50 years on the relevant date.
She filed a writ petition seeking age
relaxation in terms of U.P. Public Services
(Relaxation
of
the
Age
Limit
for
Recruitment) Rules, 1992, which was
allowed by the High Court. Setting aside
the order passed by the High Court,
Hon'ble Supreme Court held that no
individual candidate can claim a vested
right to age relaxation, which lies in the
discretion of the appointing authority.
Eligibility criteria should be uniform and
984 INDIAN LAW REPORTS ALLAHABAD SERIES
there cannot be any scope or arbitrary
selection. A candidate cannot have a vested
right to claim an exemption from a
uniformly applicable criteria. A selective
grant of an age relaxation will cause serious
prejudice in the process of selection
rendering the process arbitrary.

31. Since the Fourth Amendment
Rules, 2006 have universal application,
those are not discriminatory.

32. In view of the aforesaid
discussion, we are of the considered view
that the Second Amendment Rules, 1998
and the Fourth Amendment Rules, 2006 do
not violate the letter and spirit of any
superior legislation and the same are not
ultra vires the provision of any law.

33. The writ petitions lack merits
and the same are dismissed.
----------
(2024) 12 ILRA 984
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.11.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ -A No. 11061 of 2024

Dr. Gyanvati Dixit ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sudeep
Kumar,
Avdhesh
Kumar
Pandey,
Shreshth Srivastava

Counsel for the Respondents:
C.S.C., Ashutosh Singh, Vijay Vikram

A. Service Law - Suspension - U.P.
Intermediate Education Act, 1921: Section
16G(5)(b) - Jurisdiction - Unless there is a
failure of justice, the Court may refuse to
exercise the extraordinary jurisdiction with
which it is vested, as such, this Court is of the
view that merely because a formal order of
reinstatement was not passed prior to the
petitioner being placed under suspension,
there has been no failure of justice and as
such, this court refuses to exercise the
extraordinary jurisdiction. (Para 24)

Once the earlier suspension order of the
petitioner had been quashed consequently even
if the respondents failed to pass a formal order
of reinstatement, the same will not and cannot
take away the power of the respondents to
again place the petitioner under suspension as
has clearly been done in the instant case. (Para
25)

B. In case no formal order was passed for
the reinstatement of the petitioner the
same would not vitiate the suspension
order. (Para 15, 18)

Hon'ble Supreme Court has propounded
on the aspect of 'prejudice' that may be
caused to an employee where he/she
alleges some violation. In the present
case, if no formal order was passed in the
case of the petitioner reinstating him, the
same would have to be seen in the context
of the prejudice that may have been
caused to the petitioner. (Para 19, 20)

The petitioner has not indicated anywhere as to
the prejudice that may have been caused to him
on account of non issuance of the formal order
of reinstatement after his suspension order was
quashed. (Para 21)

During the period of suspension employeremployee relationship does not come to
an end. The employee is only prohibited from
actually offering his services and discharging his
duties and further during the suspension
pending enquiry the remuneration is payable to
the employee concerned. Once the employeremployee relationship continues thus Section
16G(5) of the Act, 1921, and the provision
under which the petitioner has been suspended,
categorically provides that it is the head of the
institution or teacher who can be suspended by
the
management
on
the
grounds
as
contemplated under the said section. As the