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2025 DIGILAW 940 (ALL)

Babita @ Babita Chandra v. State of U. P.

2025-07-15

AJIT KUMAR

body2025
JUDGMENT : Ajit Kumar, J. Instructions filed today are taken on record. Heard Sri Braj Mohan Singh, learned counsel for the petitioner and Sri M.C.Chaturvedi, learned Additional Advocate General assisted by Sri Gaurav Singh, learned Standing Counsel appearing for the State respondents. By means of present petition filed under Article 226 of the Constitution, petitioner has prayed for a writ of certiorari to set aside the entire selection process undertaken by respondent Commission pursuant to Advertisement no. 5-Examination/ 2022 dated 4th July, 2022. The argument advanced by learned counsel for the petitioner is that list of selection pursuant to the selection held is in total de hors the procedure laid down in Rule 5(4)(2) of the U.P. Child Development and Nutrition (Subordinate) Service Rules, 1992 (For short Rules, 1992) on the post of Mukhya Sewika so advertised. Learned counsel for the petitioner has taken the Court to the relevant rule 4(2) of the relevant rules that provides for 50 per cent of the recruitment on the post of Angarnbari Worker to be made through Selection Committee in accordance with Rule 15 B of Rules from amongst Anganwari Worker who are having high school certificate or equivalent examination certificate and have 10 years of continuous service as such and have attained the age of 45 years as on first day of the year of recruitment. It is further contended that since petitioner has discharged her duties as Anganbari Worker since 2007, her candidature ought to have been considered under said Rule 4(2) and hence any select list if prepared ignoring experience of Anganbari Worker, then selection would be bad and would be liable to be set aside. Per contra, learned Additional Advocate General has argued that Rule 1992 that have been cited before the Court provided two mode of selection one by way of direct recruitment and the order by way of promotion through Selection Committee which is apparent from Rule 4(1) and Rule 4(2) itself. He has further taken the Court to the Rule 8 of the Rules that provide for academic qualification and submits that for the post of Mukhya Sewika, the essential qualification is bachelor’s degree in Arts, Sociology, Social Science or Home Science as one of the subjects or Nutrition and Child Development or a degree recognized by Government as equivalent thereto. He has further taken the Court to the Rule 8 of the Rules that provide for academic qualification and submits that for the post of Mukhya Sewika, the essential qualification is bachelor’s degree in Arts, Sociology, Social Science or Home Science as one of the subjects or Nutrition and Child Development or a degree recognized by Government as equivalent thereto. He submits that for promotion, as provided, qualification is only high school or equivalent and 10 years experience as Anganbari Worker. According to him in the present case by advertising vacancies falling in 50 per cent direct recruitment quota vide advertisement no. 5 Examination/2022 applications for direct recruitment have been invited and the academic qualifications prescribed was graduate degree recognized from a recognized University in the subject of Social Science or Social Worker or Home Science as one of the subjects or Nutrition and Chief Development or any degree recognized by Government as equivalent thereto. He has taken the Court to Clause 6 of the advertisement that prescribe for academic qualification. He further submits that petitioner had applied for direct recruitment, and therefore, she could not have pressed into service Rule 4(2) to ask the Commission to count her experience as Anganbari Worker because such experience deserves to be counted when vacancy is sought to be filled up by way of promotion. Meeting the above arguments, learned counsel for the petitioner sought to contend in rejoinder that all the posts of Anganbari Worker have been advertised instead of 50 per cent quota but upon query being put to him, he could not give any details or statistics in support of his argument, nor could show anything from pleadings as supportive of his argument. Having heard learned counsel for the respective parties and having perused the records, I find that Rule 1992 vide its Rule 4 provide for direct recruitment against 50 percent vacancies of Mukhya Sevika and provide 50 per cent recruitment by way of promotion through Selection Committee in accordance with Rules. Rule 4 of the said rules are reproduced hereunder: "4. Mukhya Sevika- (1) Fifty per cent through the Selection Committee from amongst female candidates on the basis of competitive examination and interview. (2) Fifty per cent by direct recruitment through the Selection Committee in accordance with Rule 15-B from amongst High School or equivalent examination pass. Rule 4 of the said rules are reproduced hereunder: "4. Mukhya Sevika- (1) Fifty per cent through the Selection Committee from amongst female candidates on the basis of competitive examination and interview. (2) Fifty per cent by direct recruitment through the Selection Committee in accordance with Rule 15-B from amongst High School or equivalent examination pass. Anganwadi Workers who have competed ten years continuous service as such and have not attained the age of more than forty five years on the first day of the year of recruitment." Rule 15 provides procedure for direct recruitment through Departmental Selection Committee. Rules 15 is reproduced hereunder in its entirety: “15. Procedure for direct recruitment through the Departmental Selection Committee. (1) For the purpose of direct recruitment there shall be constituted a Departmental Selection Committee comprising: (a) Appointing authority, or (b) An officer belonging to Scheduled Castes or Scheduled Tribes, nominated by the District Magistrate if the appointing authority does not belong to Scheduled Castes or Scheduled Tribes: If the appointing authority belongs to Scheduled Castes or Scheduled Tribes an officer other than belonging to Scheduled Caste or Scheduled Tribe, to be nominated by the District Magistrate. (c) Two officers nominated by the appointing authority, one of whom shall be an officer belonging to minority community and the other one to the backward caste. If such suitable officers are not available in his department such suitable officers shall on the request of the appointing authority, by nominated by District Magistrate and on his failure to do so, by reason of non-availability of suitable officers, such officers shall be nominated by the Divisional Commissioner. (2) The Departmental Selection Committee shall scrutinize the applications and having regard to the need for securing due representation of the candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under rule 6, call for interview such number such number of candidates, who fulfil the requisite qualifications, as it considers proper. (3) The Departmental Selection Committee shall prepare a proficiency list of candidates in order of merit as disclosed by the marks obtained in the interview. If two or more candidates obtain equal marks, the Selection Committee arrange their names in order of merit on the basis of their general suitability for the post. (3) The Departmental Selection Committee shall prepare a proficiency list of candidates in order of merit as disclosed by the marks obtained in the interview. If two or more candidates obtain equal marks, the Selection Committee arrange their names in order of merit on the basis of their general suitability for the post. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of vacancies the Departmental Selection Committee shall forward the list to the appointing authority.” Then I find Rules 16 provides for direct recruitment thorough Commission on the basis of competitive examination and Rule 17 lays down the same procedure: Rules 16 and 17 are reproduced hereunder: “16. Procedure for direct recruitment through the Commission on the basis of Competitive examination. (1) Applications for permission to appear in the competitive examination shall be invited by the Commission in the Prescribed pro forma published in the advertisement issued by them. (2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission. (3) After the results of the written examination have been received and tabulated the Commission shall, having regard to need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories mentioned in rule 6, prepare a list of candidates who have come up to the standard fixed by the Commission in this respect. (4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidate at the written examination and recommend such number of candidates as they consider fir for appointment. If two or more candidates obtain equal marks in the written examination, the names of the candidates will be arranged viewing their general suitability. vacancies. The commission shall forward the list to the appointing authority. 17. Procedure for direct recruitment through the Commission on the basis of Competitive examination and interview.-- (1) Applications for permission to appear in the competitive examination shall be invited by the Commission in the prescribed Pro forma published in the advertisement issued by the Commission. by more than 25 per cent) than the number of (2) No candidate shall be admitted to the examination unless he holds admit card issued by the Commission. by more than 25 per cent) than the number of (2) No candidate shall be admitted to the examination unless he holds admit card issued by the Commission. (3) After the results of the written examination have been received and tabulated. The Commission shall having regard to the need for securing during representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under rule 6, summon for interview such number of candidates as, on the result of the written examination have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination. (4) The Commission shall prepare a list of candidate in order of their proficiency as disclosed by the aggregate of marks obtained by each candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examinatio.. shall be placed higher in the list. The number of names in the list shall be larger (but not larger by more than 25 per cent) than the number of vacancies. The Commission shall forward the list to the appointing authority.” Rules 18 provides for recruitment through Selection Committee, which runs as under: “18. Procedure for recruitment by promotion through the Selection Committee. (1) Recruitment by promotion shall be made on the basis of seniority subject to the rejection of unfit through the Selection Committee to be consisted in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee (for posts outside the purview of the Public Service Commission) Rules. 1992 (2) The appointing authority shall prepare eligibility lists of the candidates in accordance with the Uttar Pradesh Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility List rules, 1986, and place the same before the Selection Committee along with their character rolls and such other record, pertaining to them, as may be considered proper. (3) The selection committee shall consider the cases of candidate on the basis of the records, referred to in sub-rule (2), and. if it considers necessary. (3) The selection committee shall consider the cases of candidate on the basis of the records, referred to in sub-rule (2), and. if it considers necessary. it may interview the candidate also. (4) The selection Committee shall prepare a list of selected candidates arranged in order of seniority as it stood in the cadre from which they are to be promoted and forward the same to the appointing authority.” Rule 20 also provides that appointment, both in matter of direct recruitment and through promotion: “20. Appointment. (1) Subject to the provisions of sub-rule(2) the appointing authority shall make appointment by taking the names of candidates in the order in which they stand in the lists prepared under rules 15, 16, 17, 18 or 19 as the case may be. (2) Where, in any year of recruitment appointments are to be made both by direct recruitment and by promotion regular appointment shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with rule 19. (3) If more than one order of appointment are issued in respect of any one selection a combined order shall also be issued mentioning the names of persons in order of seniority as determined in the selection or as the case may be as it stood in the cadre from which they are promoted if the appointments are made both by direct recruitment and by promotion names shall be arranged in accordance with the cyclic order referred to in rule 19.” In order to appreciate the arguments advanced by learned counsel appearing for the petitioner, it is necessary to appreciate various provisions contained under Part-III of the Rules that provide for recruitment on different posts either by inviting applications from open market through Commission on the basis of competitive examination or by promotion through Selection Committee or even by Departmental Selection committee through open interview. Rule 5 of the part-III of recruitment as prescribed under Rules are reproduced hereunder: PART III-RECRUITMENT 5. Source of recruitment. —Recruitment to the various categories of posts in the service shall be made from the following sources : 1. Field Reporter —(1) 50 per cent by direct recruitment through the Commission on the basis of competitive examination and interview. Rule 5 of the part-III of recruitment as prescribed under Rules are reproduced hereunder: PART III-RECRUITMENT 5. Source of recruitment. —Recruitment to the various categories of posts in the service shall be made from the following sources : 1. Field Reporter —(1) 50 per cent by direct recruitment through the Commission on the basis of competitive examination and interview. (2) 50 per cent by promotion through the Selection Committee from amongst substantively appointed Social Worker, Instructors who have completed eight years service, as such, on the first day of the year of recruitmert. 2. Nutritionist. —(1) 50 per cent by direct recruitment through the Commission on the basis of competitive examination and interview. 2) 50 per cent by promotion through the Selection Committee from amongst substantively appointed Health Instructors who have completed eight years service, as such on the first day of the year of recruitment. 3. Law Assistant. -By direct recruitment through the Commission on the basis of competitive examination. 4. Mukhya Sevika.— (1) Fifty per cent through the Selection Committee from amongst female candidates on the basis of competitive examination and interview. (2) Fifty per cent by direct recruitment through the Selection Committee in accordance with Rule 15-B from amongst High School or equivalent examination pass, Anganwadi Workers who have completed ten years continuous service as such and have not attained the age of more than forty five years on the first day of the year of recruitment. Rule 5(4) -Mukhya Sevika-Advertisement in the order 1995-- Amendment in 1996 and 1998 will not apply--Selection is valid. Munni Pal...k (Sm.) and others Vs. Director Mahila and Bal Vikash Vabhag, U.P. Lucknow and others (1999) 2 U.P.L.B.E.C. 1275 NOTES. Only women candidates shall be eligible for appointment to the post of Mukhya Sevika: 5. Social Work Instructor. —By direct recruitment through the Commission on the basis of competitive examination and interview. 6. Health Instructor. —By direct recruitment through the Commission on the basis of competitive examination and interview. 7. Pre-School Instructor .—-By direct recruitment through the Commission on the basis of competitive examination and interview. STATISTICAL WING 8. Statistical Assistant. —By promotion through the Selection Committee from amongst substantively appointed investigators-cum- Computers who have completed seven years service, as such, on the first day of the year of recruitment. 9. Investigator-cum-Computer.— By direct recruitment through the Commission on the basis of Competitive Examination. STATISTICAL WING 8. Statistical Assistant. —By promotion through the Selection Committee from amongst substantively appointed investigators-cum- Computers who have completed seven years service, as such, on the first day of the year of recruitment. 9. Investigator-cum-Computer.— By direct recruitment through the Commission on the basis of Competitive Examination. AUDIT WING 10.Senior Auditor -By promotion through the Selection Committee from amongst substantively appointed auditors, who have completed seven years service, as such, on the first day of the year of recruitment. 11. Auditor. —By direct recruitment through the Commission on the basis of competitive examination and interview. ACCOUNT WING 12. Assistant Accountant. (Headquarters). —(1) 50 per cent by direct recruitment through the Departmental Selection Committee on the basis of interview. (2) 50 per cent by promotion through the Selection Committee from amongst substantively appointed Accounts Clerks who have completed seven years service, as such on the first day of the year of recruitment. 13. Accounts Clerk.— By promotion through the Selection Committee from: amongst substantively appointed Junior Accounts Clerk who have completed seven years service, as such on the first day of the year of recruitment. 14 Junior Accounts Clerk.- By direct recruitment through the Departmental Selection Committee on the basis of the interview. Upon reading of the aforesaid provisions, it clearly transpires that in the matter of Field Reporter, 50 percent posts are to be filled up by direct recruitment through Commission on the basis of competitive examination and interview whereas appointments on 50 percent posts are to be made by promotion through Departmental Selection Committee and so also in the case of Nutritionist and Mukhya Sevika , Assistant Accountant (Headquarters), whereas in the matter of Law Assistant, the vacancy is to be filled by direct recruitment through Commission on the basis of Competitive Examination and so also appointment on the post of Social Worker Instructor, Health Instructor Pre- School Instructor- Cum- Computer Operator. In so far as post of Statistical Assistant, Senior Auditor, Accounts Clerk are concerned, appointments are to be made by promotion through Departmental Selection Committee whereas in the matter of Junior Accounts Clerk, the appointment has to be made by direct recruitment through Departmental Selection Committee on the basis of interview. This three modes of selection have been provided: (i). direct recruitment through Commission on the basis of Competitive Examination and/or interview; (ii). This three modes of selection have been provided: (i). direct recruitment through Commission on the basis of Competitive Examination and/or interview; (ii). by way of promotion through Departmental Selection Committee on the basis of competitive examinations and/ or interview; and (iii). through Departmental Selection Committee on the basis of interview. In so far as Rule 15 is concerned as already produced above in this judgment, I find that this Departmental Promotion Committee is for direct recruitment which provides for scrutinising the application form in the first instance and then calling for interview [15 (2)] and thereafter it will prepare for proficiency list of candidates in order of merit merit to make recommendations to the appointing authority for the purposes of appointment [15(3)] the post of Junior Accounts Clerk and Mukhya Sevika [5(4) (14)] only provides for selection through interview to be conducted by Departmental Selection Committee, and therefore, in the matter of Mukhya Sevika, 50 precent post would be filled up from amongst Anganbari Workers through Selection Committee under Rule 15-B and not by way of competitive examination to be conducted by Commission. Admittedly in the present case, an advertisement has been issued by the Commission, hence Rule 16 and 17 would be attracted in the matter and not Rule 15-B. It is worth noticing that vide Rule 4(2), the academic qualification for the purposes of promotion through selection is high school with 10 years’ experience as Angabari Worker whereas Rule 8(4) for the post of Mukhya Sewika, the essential qualification is bachelors’ degree. Rule 8 (4) is reproduced hereunder: "4. Mukhya Sevika : Essential qualification- Must possess Bachelor's degree in Arts with Sociology or Social Work or Home Science as one of the subjects or Nutrition and Child India or degree recognize by the government as equivalent thereto." Now when there are two modes of recruitment provided, it is required to be seen as to what mode of recruitment process was undertaken in the present case and whether petitioner has made out a case for consideration as per Rule 4(2). The advertisement was issued in the year 2022 vide Rule 5-Examination/2022, requiring candidates to apply online and prescribing academic qualification vide clause 6 is as under: (emphasis added) Petitioner having applied against vacancy so advertised, in the first instance, could not have questioned the qualification prescribed under the advertisement for She herself had submitted to the advertisement by moving application as per qualification mentioned therein and secondly, this being a case of direct recruitment through competent examination by Commission as contemplated under rule 17 of the Rules, it cannot be said to be confused with recruitment through Departmental Selection Committee as contemplated under Rule 18. In view of above, therefore, petitioner cannot be permitted to take plea that selection process is de hors the procedure as 10 years experience on the post of Anganbari Worker which is prescribed under Rule 4(2) has not been taken into consideration. Petition thus being devoid of merits, is accordingly dismissed.