Deepak Singh Vs State of U.P. Thru. Prin. Secy. Deptt. Lko. and Another

Neutral Citation No. - 2025:AHC-LKO:10595

Court No. - 6

Case :- WRIT - A No. - 1971 of 2025

Petitioner :- Deepak Singh Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Lko. And Another Counsel for Petitioner :- Priyanshu Shukla Counsel for Respondent :- C.S.C.

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Hon'ble Alok Mathur,J.

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Heard Sri Priyanshu Shukla, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.

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By means of present writ petition the petitioner has sought direction to the opposite parties to consider candidature of petitioner on the post of Optometrist / Eye Testing Officer in pursuance to advertisement dated 12.07.2023, after granting him preference on account of past services rendered by him on contract basis with effect from 13.10.2012, keeping in view judgment and order dated 01.02.2013, passed in Writ Petition No. 190 of 2013 - Seems Singh and others Vs. State of U.P. and others. as well as judgment and order dated 04.01.2024, passed by this Court in Writ - A No. 8682 of 2023 and also judgment and order of the Division Bench of this Court in Special Appeal (D) No. 352 of 2024 - State of U.P. Vs. Deepak Singh and Another, before final selections are made in pursuance to the aforesaid advertisement.

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It has been submitted by learned counsel for the petitioner that petitioner has been working on the post of Optometrist on contract basis with effect from 03.10.2012 in the office of Chief Medical Officer, Fatehpur under the National Health Mission Scheme. The petitioner sought to participate in the regular selection process for the post of Optometrist, who was over age and accordingly had claimed certain weightage for participating in the fresh recruitment process.

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It has been submitted that the benefit which can be granted to the persons who were already working on contract basis, was subject matter of consideration before this Court in Writ Petition No. 190 (S/S) of 2013 - Seema Singh and Others Vs. State of U.P. and Others (decided on 01.02.2013), wherein this Court after considering the entire rules which are applicable for grant of relaxation as well as service rules, disposed of the

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writ petition with certain directions which are quoted herein below for ready reference :-

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" In view of above, these writ petitions are hereby disposed of with the following directions:

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1.The petitioners shall be considered for appointment on the post of Basic Health Worker (Female) taking into consideration their work and experience on the post of ANM and by giving them relaxation in the qualification relating to training for the post in question provided the petitioners have obtained the training as per the prescribed qualification at that particular time.

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2.The petitioners shall be given relaxation in case they have obtained one and half year training for the post in question from any institution other than the departmental divisional training centers.

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3.The petitioners shall be given preference against outside candidates for appointment on the post of Basic Health Worker (Female).

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4.The petitioners who have become overage for the post in question shall be granted relaxation considering their work and experience.

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5.The opposite parties shall make necessary appointment on the post of Basic Health Worker (Female) against the existing vacancies considering the petitioners and similarly situated other candidates. In case any vacancy remains unfilled the same shall be filled from outside candidates.

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6.The opposite parties shall complete the required formalities in this regard within a period of six weeks from the date a certified copy of this order is produced before the opposite party nos. 1 and 2 i.e. Principal Secretary, Department of Medical, Health & Family Welfare, Government of U.P. and Director General, Medical, Health & Family Welfare, Lucknow respectively.

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It is, however, made clear that the aforesaid directions are not for the persons who had completed the training without having the prescribed qualification at the time they had undergone the training. "

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In the judgment of Seema Singh (supra) , there was great was laid by this Court to the issue pertaining to relaxation in qualification related to training for the post in question was duly considered and in Clause 4 it was stated that the petitioner who had become over age for the post in question shall be given relaxation considering their work and experience.

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The petitioner has been claiming benefit of judgment of this

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Court in the case of Seema Singh (supra) . Subsequently, it has been submitted by learned counsel for the petitioner that petitioner had also approached this Court by filing Writ Petition No. 8682 of 2023, assailing order dated 15.09.2023, passed by the Principal Secretary, Department of Medical Health and Family Welfare, Lucknow wherein representation of the petitioner for grant of weightage and age relaxation was considered in detail on the post of Optometrist, was rejected. The coordinate Bench of this Court after considering in detail the judgment of Seema Singh (Supra) , was of the view that the matter pertaining to relaxation in age limit has already been provided for by the State Government in U.P. Public Service (Relaxation of Age Limit) Recruitment Rules, 1992 and the same rules would be applicable in the case of the petitioner also and accordingly, held that decision of the respondents in not extending benefit of age relaxation was illegal and arbitrary and allowed the writ petition and remitted the matter to the authorities to consider candidature of the petitioner in the light of the judgment in the case of Seema Singh (supra) .

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The State Government being aggrieved by the aforesaid judgment and order dated 04.01.2024, had preferred special appeal being Special Appeal (D) No. 352 of 2024 - State of U.P. Thru. Principal Secretary Department of Medical health and Family Welfare U.P., Lucknow and Another Vs. Deepak Singh and Another. In the said judgment in paragraph 18 it has been recorded that learned counsel for the petitioner had not prays for weightage and did not seek any relaxation in qualification, but only wanted relaxation in age. For ready reference, relevant portion of judgment and order of Division Bench of this Court in State of U.P. Vs. Deepak Singh (supra) is quoted herein below :-

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" 17. After going through the judgment in Seema Singh (supra) dated 01.02.2013 and the judgment passed on the review petition arising from the same case on 12.10.2013 we find that in Seema Singh (supra) the writ Court had granted relaxation in age as also qualification in the body of its judgment. In addition to it in operative part it also issued certain other directions such as grant of preference to the petitioners therein.

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18. It was contended by the State counsel that weightage was also granted, but, we do not find any such observation in the body of the judgment dated 01.02.2013 nor any such direction in its operative part. The use of the words 'the petitioners shall be considered for appointment on the post of Basic Health Worker (Female) taking into consideration their work and experience on the post of ANM' would not amount to giving them weightage. In point no. 3 in the operative portion it has

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been provided that the petitioners shall be given preference against outside candidate which is not weightage but preference. Even in the judgment passed in review petition we do not find any such weightage having been given for the past services. Weightage as ordinarily understood in service jurisprudence in the context with which we are concerned would mean particular marks being given for completing particular years of service on account of the experience gained therein, which is not the case herein. In fact, Mr. Alok Mishra, learned counsel for the respondents very fairly submitted that though his clients had prayed for weightage before the writ petition but he does not press it, meaning thereby, he does not press it in this case. Similarly he informed us that no relaxation in qualification is being sought. His clients only wanted a consideration for relaxation in age.

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19. It appears that on being informed that the matter is similar to Seema Singh (supra), the writ Court has simply allowed the writ petition in the light of Seema Singh (supra) without considering the fact of this case.

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20. Now, the fact of the matter is that in this case the only question involved is of relaxation in age. In view of the provisions contained in the U.P. Public Services (Relaxation of the Age Limit for Recruitment) Rules, 1992 which have been considered in Seema Singh (supra), we see no reason as to why the claim of the respondents herein for such relaxation should not be considered unless it has already been considered. As the counsel for the respondents does not press for any weightage to the respondents nor for relaxation in qualification herein, therefore, that question does not arise for consideration of the same.

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21. In this view of the matter, we are also of the view that the judgment passed in review petition arising out of Seema Singh's case (supra) has no application to the facts of this case as there essentially question of qualification of the applicants seeking review was considered and the said judgment was confined to the facts of the said case without being a precedent for other matters, certainly not any tangible bearing on its result.

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22. In view of the above, judgment dated 04.03.2024 passed in Civil Misc. Review Application No. 37 of 2024 is set-aside and we dispose of this special appeal with the observation/direction that the judgment of the writ Court shall be complied by the appellants herein as regards consideration of the respondents herein for grant of age relaxation is concerned unless that has already been done, in which case the order shall be communicated to the respondents. We do not find any need for making any other observations or issuing any other directions, except that neither weightage nor relaxation in qualification is

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being claimed by the respondent(s). 23. The special appeal is disposed of with the aforesaid clarification of the judgment of the Writ Court. "

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Accordingly, the Division Bench had clarified the said issue that what is being sought by the petitioner is only relaxation in age and accordingly proceeded to dispose of the special appeal with observation that the judgment of the writ Court shall be complied with by the appellants for consideration of the respondents " for grant of age relaxation is concerned unless that has already been done, in which case the order shall be communicated to the respondents. We do not find any need for making any other observation or issuing any other directions, except that neither weightage nor relaxation in qualification is being claimed by the respondent(s). " The Division Bench restrained from making any other observation or order or direction, considering that neither weightage nor relaxation in qualification has been claimed by the respondents.

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In the aforesaid circumstances, the petitioner has been allowed to participate in the written examination held on 19.01.2025 and the result of which has not been declared so far. It is in the meanwhile that the petitioner has again given representation claiming preference in appointment to the post of Optometrist. The said representation has been given on 03.02.2025 and present writ petition has been filed on 12.02.2025 seeking direction to the respondent no. 1 to decide the said representation.

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Considering the fact that all the issues raised by the petitioner pertaining to benefit sought by him for appearing in the direct recruitment process for the post of Optometrist was also subject matter of Writ Petition No. 4937 of 2023 and again before the Division Bench of this Court in Special Appeal (D) No. 352 of 2024. Before the Division Bench the petitioner (respondents therein) have stated that they do not seek weightage but immediately thereafter they have moved representation seeking preference.

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On a pointed query being made to learned counsel for the petitioner as to whether there is any Rule or Government Order providing for grant of preference to the petitioner in the said recruitment for the post of Optometrist, none can be pointed out by learned counsel for the petitioner.

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Even otherwise, this Court finds that process of recruitment is under way and advertisement for the same was issued in 2023 and any change in the rules of recruitment would render the entire selection process arbitrary and liable for interference by

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the writ Court. Even otherwise, this aspect of the matter has been recently considered by a seven Judges Bench of the Hon'ble Supreme Court in the case of Tej Prakash Pathak and Others Vs. Rajasthan High Court and Others - Civil Appeal Nos. 2634, 2635 and 2636 of 2013 (decided on 07.11.2024), where it has categorically been held that eligibility criteria for being placed in the select list, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the Rules so permit or the advertisement, which is not contrary to the extent Rules so permit. Even if, such change is permissible under the Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution of India and satisfy the test of non-arbitrariness.

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Accordingly, once advertisement has been issued and the recruitment process is under way, then unless and until rules and provisions so provide, no change in conditions of recruitment including the eligibility criteria can be made. Hence, any direction as sought by the petitioner would amount to interference in the said recruitment process and even any such direction to the respondents to decide representation cannot be passed in the peculiar circumstances of the present case, considering the fact that same would run contrary to the dictum of the Apex Court in the case of Tej Prakash Pathak (supra) .

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Even otherwise, this Court finds that claim made by the petitioner for grant of weightage and other benefits counting the previous services on contract basis has already been subject matter of consideration at the behest of petitioner before the writ Court and even direction in this regard have been passed by the Division Bench of this Court in the special appeal and this Court do not find any occasion for the petitioner to have approached this Court during pendency of the recruitment process.

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For the reasons aforesaid, this Court does not find any reason to interfere or grant relief as sought by the petitioner. Accordingly, the writ petition being devoid of merits is dismissed .

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Order Date :- 18.2.2025 A. Verma

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(Alok Mathur, J.)

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Digitally signed by :- ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

Deepak Singh v. State of U.P. Thru. Prin. Secy. Deptt. Lko. and Another

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Deepak Singh v. State of U.P. Thru. Prin. Secy. Deptt. Lko. and Another

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