Roop Ram vs State of U.P. and Others

M.C. Tripathi, J.—1. Roop Ram is before this Court for quashing the order dated 23.8.2011 passed by the Director General, Family Welfare, U.P. Lucknow-respondent No. 2. He has further prayed for direction in the nature of mandamus directing the respondents to consider his case by permitting him to appear/appoint for the post of Health Worker (Male) in pursuance of advertisement dated 16.2.2010.

Record in question reflects that the petitioner belongs to Scheduled Caste category. He passed High School and Intermediate Examinations in the years 1980 and 1982 respectively. In the year 1990 he passed the examination of Health Worker (Male) from Health & Family Welfare Department. On 16.4.2010 an advertisement was issued by respondent No. 2 for filling the reserved backlog vacancies of Health Worker (Male). In the advertisement in question, a condition was imposed that the candidate must have completed the Training Course of Health Worker between the period from 1.1.2009 to 31.12.2009.

Learned counsel for the petitioner submits that the condition imposed in the advertisement in question is arbitrary, perverse, without jurisdiction and is violative of Articles 14 and 16 of Constitution of India. There is no rational to the respondents to fix the cut of date of training to the candidates applying for the post of Health Worker (Male) from 1.1.2009 to 31.12.2009.

When the matter was taken up on 17.1.2012, the Court had proceeded to pass the following order:--

"After the matter was argued at some length, this Court finds that in view of the intention of the statutory amendments made in the U.P. Medical Health and Family Welfare Department Health Worker and Health supervisor (Male and Female) Service (First Amendment) Rules, 1998 specifically Rule 17 as also in view of the fact that there being no earlier advertisement as per the Amended Rules, 1988 for direct recruitment, the impugned advertisement for Scheduled Caste category candidates only may not be justified, this Court feels it proper to ask the Principal Secretary Family Welfare to re-examine the grievance of the petitioner in the matter of his being appointed as health worker having regard to the fact that he completed his training between 1986 till 1991 and therefore no age bar can be applied.

The said exercise may be completed by the Secretary concerned preferably within six weeks by means of a reasoned order. The order to be passed by the Secretary shall be brought on record by the next date.

Put up on 28.2.2012."

In pursuance of the said directives issued by this Court, the Principal Secretary of the department had decided and rejected the claim of the petitioner vide order dated 13.2.2012 and the same has been assailed by means of amendment application, which was allowed by this Court on 18.2.2015.

Learned counsel for the petitioner submits that in U.P. Medical Health and Welfare Health and Welfare Health Worker and Health Supervisor (Male & Female) Service (First Amendment) Rules, 1998, there is no age limit provided for the recruitment of Basic Health Worker (Male). The petitioner is entitled for selection on the post of Basic Health Worker (Male). The imposition of condition in the advertisement in question for appointment of trained candidates only, who were given training during the period from 1.1.2009 to 31.12.2009, is illegal and contrary to the purpose and aim of the Rules of 1998.

On the other hand, learned Standing Counsel in support of his argument has placed his reliance on the order passed by the Principal Secretary of the department dated 13.2.2012. Relevant paras 3 and 4 of the order is reproduced hereinafter:--

A perusal of the aforesaid order in question would go to show that in the years 1998 and 2001, the department had proceeded to make advertisements inviting applications from the candidates, who had completed training between the years 1986 to 1991 for selection on the post of Health Worker (Male) and admittedly the petitioner had not applied in pursuance to the aforesaid advertisements. In the year 2009 the department had published the advertisement for filling up backlog vacancies on the post of Health Worker (Male) from the candidates of reserved category and in pursuance of the said advertisement, the selection was made. The date of birth of the petitioner is as 20.12.1964 and at the time of passing of the said order the petitioner was about 47 years'' old. The maximum age prescribed for the general category candidates is 35 years and a relaxation of 5 years was admissible for the reserved category (excluding handicapped) and as such, the maximum age for the reserved candidate was 40 years. Therefore, the petitioner was not found eligible for appointment on the post of Health Worker (Male).

Once this is the factual situation that the petitioner had not applied in pursuance of the earlier advertisements of the years 1998 and 2001 and in the year 2011 he had proceeded to file the present writ petition challenging the recruitment process on the ground that no cut of date can be made. The date of birth of the petitioner is 20.12.1964 and admittedly, when the matter was decided by the Principal Secretary of the department, the petitioner was 47 years'' old, and as such, no positive direction can be issued to the respondents.

In the case of U.P. Public Service Commission, Allahabad and another v. State of U.P. and another , 2007 (5) ADJ 280 (DB) in which rights of wait list candidate was considered by this Court, a Division Bench of this Court held in paras 15 and 31 as under:--

"A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list." This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi v. State of U.P., , 2001 (1) ESC 317 and Surinder Singh and others v. State of Punjab and Another, , (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment.

31..Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason."

For the aforesaid reasons, the writ petition lacks merit and is dismissed.