S/S) Abhilasha Saxena and others v. State of Uttarakhand and others

Mr. M.C. Pant, Advocate for the petitioners. Mr. Narain Dutt, Standing Counsel for the State. Mr. Ramji Srivastava, Advocate for the Uttarakhand Medical Service Selection Board. Writ Petition No. 505 of 2024 (S/S) Laxmi Rana ......Petitioner Versus State of Uttarakhand and others ….Respondents Present: Mr. Sanjeev Kumar, Advocate for the petitioner. Mr. Narain Dutt, Standing Counsel for the State. Mr. Ramji Srivastava, Advocate for the Uttarakhand Medical Service Selection Board. JUDGMENT Hon’ble Ravindra Maithani, J. Since common questions of law and fact are involved in these writ petitions, they are heard together and being decided by this common judgment. However, the facts of WP (S/S) No. 483 of 2024 are being referred to, for the sake of convenience.

2. In all these petitions, the petitioners claim that they are eligible for appointment to the post of Nursing Officer. They seek directions of the Court that pursuant to the advertisement dated 3

11.03.2024, issued by the respondent no. 4/Uttarakhand Medical Service Selection Board (“the Board”), the cut off date for determining the age of the petitioners should be 01.07.2020 and not 01.07.20023.

3. The facts necessary to understand the controversy should be briefly stated in a chronological manner as follows:- (i) On 12.12.2020, the Uttarakhand Board of Technical Education, Dehradun (“UBTE”) advertised public advertisement for recruitment of 1238 vacant posts of Staff Nurse in the Department of Medical Health, Uttarakhand. The cut off date for age was 01.01.2020. (ii) All the petitioners did apply to it. But, this advertisement was cancelled. (iii) On 02.02.2021, the UBTE again issued a fresh advertisement for recruitment of 1238 posts of Staff Nurse in the Department of Medical Health, Dehradun. This advertisement categorically mentioned that the candidates, who had applied pursuant to the advertisement dated 12.12.2021 and subject to their eligibility are not required to re-apply. (iv) As per the condition of the advertisement, the selection was to be made on the basis of a written examination and the merit list was to be prepared on the basis of the marks obtained by the candidates in the written examination. 4 (v) On 09.02.2021, UBTE issued a corrigendum to the earlier advertisement dated 02.02.2021 and the number of vacancies were increased to

2621. It was pursuant to the fresh requisition sent by the Director, Medical Education in respect of 1383 vacancies of Staff Nurse in the various Government Medical Colleges of the State. (vi) On 23.03.2021, the nomenclature of the post in the nursing cadre was changed, and for the Staff Nurse, it was re-designated as Nursing Officer. (vii) On 17.04.2021, UBTE issued a notification by which it was notified that the cut off date for determining the age would be 01.07.2020 instead of 01.01.2020 and candidates, who were eligible to apply then, could apply. (viii) The dates of written examination were notified then postponed and it was never communicated. A decision was taken by the State Government that the direct recruitment to the post of Nursing Officer shall be conducted by the Board, instead of UBTE. (ix) On 14.10.2022, the State of Uttarakhand issued a notification in case any advertisement is issued by the Uttarakhand Subordinate Service Selection Commission 5 (“UKSSSC”)and the recruitment could not be concluded and the posts are further advertised by the Uttarakhand Public Service Commission, in such matters, the age of the candidates shall be counted from the date as was mentioned in the notification issued by the UKSSSC. (x) On 25.08,2022, the service rules of the Nursing Officers were amended and a proviso was added to Rule 15 that as a one-time measure, the selection on the post of Nursing Officer for the selection year 2022-23 will be made on the basis of the marks obtained by the candidates in their courses. (x) The recruitment process pursuant to the advertisement

12.12.2020

02.02.2021 was never taken to a logical end. They were aborted midway. (xi) On 03.01.2023, the Board issued an advertisement inviting applications for holding Nursing Officers Examination – 2023 against 1564 posts of Nursing Officer Department of Medical Health and Family Welfare, Uttarakhand and the cut off date for its examination was 01.07.2022. This cut off date was challenged by many candidates in WPSS No. 134 of 2023, Deepak Bhandari and others v. State of Uttarakhand and others, and connected matters (“the first petition”). 6 (xii) This Court on 30.10.2023 allowed the first petition and held that “in the peculiar facts and circumstances of the case, by relaxing condition no. 7 impugned advertisement dated 03.01.2023 qua the writ petitioners, a writ of mandamus is issued to the respondent-State as well as respondent no. 4-Selecting Board directing them to treat the petitioners within the maximum age limit in the selection process held vide advertisement dated 03.01.2023 and to hold them eligible to apply for the said posts insofar as their upper age is concerned.” (xiii) It was so observed by the Court noticing that the delay caused by the respondent completion of the selection process has became fatal to the interest of the petitioners, who have become overage by aborting the earlier selection process. (xiv) On 27.09.2023, the State Government again made change the service recruitment of Nursing Officers and again provided that as a one-time measure, selection to the post of Nursing Officer for the selection year 2022-23 will be made on the basis of marks obtained by the candidates in their Degree/Diploma courses. 7 (xv) On 11.03.2024, the Board issued an advertisement for selection on the post of 1455 vacancies of Nursing Officer in the Government Medical Colleges of the State, etc. and the cut off date for age determination was 01.07.2023. (xvi) The petitioners are aggrieved by this cut off date.

4. Heard learned counsel for the parties and perused the record.

5. According to the petitioners, they had applied pursuant to the advertisement dated 12.12.2020 issued by UBTE; they were eligible for appointment when second time advertisement was issued by UBTE on 02.02.2021 followed by the corrigendum dated 09.02.2021; at that time, the total vacancies were 2621; but, when the recruiting body was changed and the Board took up the process for recruitment, initially by virtue of advertisement dated advertisement dated 03.01.2023, only 1564 posts were advertised and all the posts, which were advertised in the past were not re-advertised; the selection was not on the basis of written examination; it was on the basis of passing years and the marks obtained by the candidates in the Degree/Course; therefore, the rights of the petitioners were defeated; the advertisement, which has been issued on

11.03.2024 is with regard to such posts of Nursing Officer in the Department of Medical Education, which were earlier clubbed in the notification dated 12.12.2020, 02.02.2021 and the corrigendum dated 8

09.02.2021 issued by UBTE, when the petitioners were eligible for competing in terms of age also.

6. It is further the case of the petitioners that when by virtue of advertisement dated 03.01.2023, the Board invited applications for appointment against 1564 vacancies, in the first petition, the Court held them eligible in terms of age. It is the case of the petitioners that the same treatment is to be given to the petitioners now in respect of the advertisement dated 11.03.2024 of the Board.

7. The Director, Medical Education has filed counter affidavit. The factual narrations have been stated in the counter affidavit and it is stated that the petition is devoid of merit.

8. The Board has also filed its counter affidavit and according to it, the advertisement has been issued based on the requisition sent by the employer and Clause 7 of the advertisement provides for maximum age limit of 42 years as on 01.07.2023, which is as per relevant service rules.

9. Learned counsel for the petitioners would submit that initially when on 12.12.2020 advertisement was issued for appointment of Nursing Officer by the UBTE, they were qualified; initially, there were 1238 posts pertaining to the Medical Health Department; subsequently, the posts of Nursing Officer in Medical Education Department were also added; the earlier advertisement dated 12.12.2020 was cancelled; the second advertisement was issued on 02.02.2021; by then, the petitioners had no grievance because they were deemed to have applied earlier; by the corrigendum dated 09.02.2021 of UBTE, 1383 posts were added, 9 which made total vacancies as 2621, which were never recruited by the UBTE. Learned counsel submits that thereafter the Board took up the examination; meanwhile, the rules were relaxed and competitive examination was ruled out and selection was proposed to be made on the basis of passing year and the marks obtained in the course/degree; the petitioners’ chances for appointment were also ruled out by this change in the rules.

10. Learned counsel for the petitioners further submits that on

03.01.2023, the Board advertised vacancies, but they were not all the vacancies, which were earlier advertised by the UBTE by its notification dated 0202.2021 and corrigendum dated 09.02.2021 (2621 in all); but the Board advertised only 1564 vacancies pertaining to Medical Health Department leaving many vacancies unadvertised to the detriment of the petitioners. But, in the first petition, it is argued that the candidates were held eligible in terms of age. It is argued that now by the advertisement dated 11.03.2024, the vacancies, which were advertised by UBTE by its advertisement dated 02.02.2021 and 09.02.2021 have also been advertised, but the cut off date is 01.07.2023, which is bad; the petitioners have become overage due to inaction on the part of respondent Board or UTBE for conducting recruitment on time; therefore, like the direction issued in the first petition, in this writ petition also, the petitioners should be held to be eligible in terms of age for participating in the recruitment process.

11. Learned State Counsel submits that by advertisement dated

11.03.2024, age has been fixed as given under the rules and the Court cannot make any interference in it; Court cannot give any relaxation in 10 age; it is totally a policy matter. In support of it, the learned State Counsel has placed reliance on the principles of law as laid down in the cases of Dr. Thingujam Achouba Singh and others v. Dr. H. Nabachandra Singh and others, (2020) 20 SCC 312, Rakesh Kumar Singh v. State of Uttarakhand and others, Special Appeal No. 99 of 2007 and Dr. Ami Lal Bhatt v. State of Rajasthan and others, (1997) 6 SCC 614.

12. In the case of Dr. Thingujam Achouba Singh (supra), the Hon’ble Supreme Court has held that the High Court may not relax the age for any candidate. It is of only open for the employer. In para 16 of the judgment, the Hon’ble Supreme Court observed as follows:- “16. So far as relaxation of upper age-limit, as sought by the petitioners in one of the writ petitions is concerned, the High Court has directed the competent authority and Executive Council of the Society to consider for providing such relaxation clause. We fail to understand as to how such direction can be given by the High Court for providing a relaxation which is not notified in the advertisement. While it is open for the employer to notify such criteria for relaxation when sufficient candidates are not available, at the same time nobody can claim such relaxation as a matter of right. The eligibility criteria will be within the domain of the employer and no candidate can seed as a matter of right, to provide relaxation clause”

13. In the case of Rakesh Kumar Singh (supra), the Division Bench of this Court has held that there is no statutory provision for age relaxation. In para 10 of judgment, the Hon’ble Division Bench has held as under:- “10. Reverting to the case in hand, admittedly, there is no statutory provision providing for age relaxation. Merely because age relaxation was granted in the past, no right is created in favour of the petitioner to claim age relaxation. As the petitioner has no legally enforceable right to claim age relaxation, no writ of mandamus can be 11 issued to the respondents to grant age relaxation to the petitioner in view of the above quoted dictum of the Apex Court.”

14. In the case of Dr. Ami Lal Bhatt, the Hon’ble Supreme Court while dealing with the subject relating to relaxation in age, observed in para 11 as under:- “11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.”

15. Learned counsel for the Board submits that in the advertisement dated 11.03.2024, the cut off date has been fixed in accordance with the rules; the Board is a recruitment agency; it has no role except to advertise the vacancy as per the requisition.

16. Undoubtedly, the Court cannot give relaxation in age. It is a policy matter to be decided by the employer, firstly, as to what should the age for recruitment to a particular post and, secondly, whether any relaxation is to be given and to which category of the candidates. 12

17. In the instant matter, this Court is not going to relax the age per se. What is being argued is that the recruitment process, which was initiated on 12.12.2020 has never been concluded in full, because it was cancelled by the subsequent advertisement dated 02.02.2021 of UBTE for recruitment on 1238 posts of Nursing Officer and by a corrigendum dated 09.02.2021, 1383 more posts were added and total vacancies against which the advertisement was issued were 2621. This recruitment has never taken to its logical end. It was aborted.

18. It is not in dispute that the petitioners had applied pursuant to the advertisement dated 12.12.2020 and 02.02.2021 issued by the UBTE. It is also admitted position that as per the service rules, the Nursing Officers are to be appointed on the basis of written examination. After aborting the process of recruitment, the service rules were changed and the selection, as the one time measure, was done on the basis of passing year and the marks obtained by a candidate in the diploma/degree course. The petitioners were left with no choice.

19. In the year 2021, they were eligible. They applied. They were there to compete, but the competition never held and rules of game were changed; process of recruitment aborted.

20. Thereafter, the recruiting agency was changed and on

03.01.2023, the Board advertised 1564 vacancies of the Nursing Officer in the Medical Health Department. It may be noted that earlier the vacancies in the Medial Health Department and Medical Education 13 Department, both were advertised by UBTE by its advertisement dated

02.02.2021 and 09.02.2021. They were 2621 in all, which included 1238 posts in Medical Health Department and 1383 in Medical Education Department.

21. It is clear that the total vacancies, which were advertised in the year 2021 were not re-advertised on 03.01.2023 and in the advertisement dated 03.01.2023 issued by the Board, the cut off date for age determination was 01.07.2023 and fact remains that challenge to it was accepted in the first writ petition, when the Court held that due to inaction of the recruiting body, the candidate should not suffer. The petitioners in the first petition were held eligible to compete pursuant to the notification dated 03.01.2023, in case they were otherwise eligible. On the ground of age, they were not held to be disqualified.

22. Similar is the situation now. At the copy of repetition, it is reiterated that initially 2621 posts were advertised in the year 2021, but they were never recruited. The recruitment process was aborted. The rule of game was changed. Instead of a competitive examination, selection was done based on the passing year and the marks obtained in the Diploma/Degree course. In the year 2023, the Board did not advertise all the vacancies, which were earlier advertised in the year 2021. Only 1564 vacancies were advertised. Now, on 11.03.2024, 1564 vacancies of Nursing Officer have been advertised. The Court reiterates that relaxation of age per se in rules cannot be granted by the Court. The vacancies in advertisement dated 11.03.2024 includes 1383 vacancies of Nursing Officer of Medical Education Department, which were included in the 14 advertisement dated 02.02.2021 of UBTE by its corrigendum dated

09.02.2021.

23. If one recruiting agency has issued advertisement and the process is not completed and the recruiting agency is changed and the subsequent agency further advertised the posts, in such a situation to overcome the situation of overage, the Government of Uttarakhand has issued a notification dated 14.10.2022, which is Annexure 8 to the writ petition and it categorically records that in case earlier vacancies were advertised by the Uttarakhand Subordinate Service Selection Commission, but the process is not completed and subsequently the vacancies were advertised by the Uttarakhand Public Service Commission, relaxation shall be granted to the candidates, who had earlier responded to the advertisement issued by the Uttarakhand Subordinate Service Selection Commission.

24. Similar is the case here. The earlier advertisement dated

02.02.2021 with regard to 1383 posts of Nursing Officer in the Medical Education Department were never filled up. They were not advertised on

03.01.2023 by the Board. They have been advertised now on 11.03.2024. The number of vacancies admittedly is 1455. The petitioners were eligible in the year 2021 in terms of age. More importantly, the service rules were twice changed since then. Once it was changed on 05.08.2022 when it was held that selection shall be made on the passing year and marks obtained in Diploma/Degree course and again on 27.09.2003, the rules were changed as one time measure for recruitment in the similar manner. The petitioners were deprived of their prospects in two manners, as follows:- 15 (i) In the year 2021, all the vacancies were not filled. Whatever vacancies were filled up pursuant to advertisement dated 03.01.2023, that were on the basis of change of rules. The petitioners had no competition then. (ii) All the posts were not advertised.

25. Therefore, this Court is of the view that in terms of age, the petitioners need protection of the Court. Admittedly, all the petitioners did apply pursuant to advertisement dated 12.12.2020, which continued with the advertisement dated 02.02.2021 and corrigendum dated 09.02.2021 of UBTE. Then, the cut off date for age determination was 01.07.2020. All the vacancies advertised then have never been filled up till date. For this, the petitioners cannot be faulted. The rules were changed in between. Therefore, this Court is of the view that in so far as the petitioners are concerned, even pursuant to the advertisement dated 11.03.2024, the cut off date for determination of age should be 01.07.2020. Accordingly, the petitions deserve to be allowed.

26. All the writ petitions are allowed. Pursuant to the advertisement dated 11.03.2024 of the Board, the cut off date for determining the age of the petitioners shall be 01.07.2020. By the interim orders of this Court, all the petitioners were permitted to participate in the recruitment process, but it was directed to the Board that their result shall not be declared. Now, in view of this judgment, the Board shall declare the result of the petitioners. Avneet/ (Ravindra Maithani, J.)

25.08.2025