NANDAN PRAKASH SAROJ AND 15 OTHERSversusSTATE OF U.P. THRU. PRIN. SECY. DEPTT. MEDICAL HEALTH AND FAMILY WELFARE LKO. AND 2 OTHERS

                     Neutral Citation No. - 2024:AHC-LKO:4369

Court No. - 18

Case :- WRIT - A No. - 122 of 2024

Petitioner :- Nandan Prakash Saroj And 15 Others
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt.
Medical Health And Family Welfare Lko. And 2 Others
Counsel for Petitioner :- Alok Mishra
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Utsav
Mishra

Hon'ble Manish Kumar,J.

Heard Shri Alok Mishra, learned counsel for the petitioner,
learned Standing Counsel and learned counsel for the
respondent no. 3.

Present writ petition has been preferred for quashing of the
impugned order dated 21.11.2023 passed by the
respondent no. 1-Principal Secretary, Department of
Medical, Health & Family Welfare, Civil Secretariat,
Government of U.P., Lucknow rejecting the representation
of the petitioner for grant of weightage for considering his
candidature on the post of Optometrist in pursuance of
advertisement dated 12.07.2023 issued by the respondent
no. 3-U.P. Subordinate Services Selection Commission is
also prayed for.

The petitioners have also prayed for issuing directions in
the nature of mandamus to the opposite parties not to give
effect to the impugned order dated 21.11.2023 i.e.
rejection of representation of the petitioner and the
advertisement dated 12.07.2023 and to provide weightage
on the basis of contractual services rendered by him as
Optometrist.

Learned counsel for the petitioner has submitted that the
petitioner has continuously been functioning on the post of
Optometrist on contractual basis since the year ranging
from 2012 to 2017 under the National Health Mission
Scheme (hereinafter referred to as, the N.H.M.).

In exactly similar set of facts, this Court has passed a
judgment and order in the case of Deepak Singh vs. State
of U.P. passed in Writ A No. 8682 of 2023, which was
allowed vide order dated 04.01.2024. For convenience, the
said order dated 04.01.2024 is quoted hereinbelow:-

"1. Heard Shri Alok Mishra, learned counsel for the petitioner, learned
Standing Counsel and learned counsel for the respondent no. 3.

2. Present writ petition has been preferred for quashing of the
impugned orders dated 15.09.2023 passed by the respondent no. 1-
Principal Secretary, Department of Medical, Health & Family Welfare,
Civil Secretariat, Government of U.P., Lucknow rejecting the
representation of the petitioner for grant of weightage and age
relaxation for considering his candidature on the post of Optometrist in
pursuance of advertisement dated 12.07.2023; advertisement dated
12.07.2023 issued by the respondent no. 3-U.P. Subordinate Services
Selection Commission is also prayed for.

3. Also prayed for issuing directions in the nature of mandamus to the
opposite parties not to give effect to the impugned order dated
15.09.2023 i.e. rejection of representation of the petitioner and the
advertisement dated 12.07.2023 and to provide some age relaxation
and weightage on the basis of contractual services rendered by him as
Optometrist.

4. Learned counsel for the petitioner has submitted that the petitioner
has continuously been functioning on the post of Optometrist on
contractual basis w.e.f. 03.10.2012 in the office of Chief Medical
Officer, Fatehpur under the National Rural Health Mission Scheme
(hereinafter referred to as, the N.R.H.M.).

5. On 12.07.2023 an advertisement was published by the respondent
no. 3 for appointment on the post of Optometrist but the petitioner
was not eligible for the same as the maximum age provided for the
said post is 40 years, whereas petitioner was over-aged by 3 months
and 26 days.

6. It is further submitted that petitioner has applied against the
vacancies notified in the advertisement dated 12.07.2023 but on
inquiring, he had come to know that his candidature will not be
considered or he would not be permitted to appear in the written
examination as he has become over-aged.

7. Under these compelling circumstances, petitioner has approached
this Court by filing Writ A No. 5745 of 2023 (Deepak Singh Vs. State of
U.P. and others) seeking quashing of the advertisement dated
12.07.2023 and for providing weightage/age relaxation to the
petitioner on account of past services rendered by him on contractual
post in the light of the judgment and order dated 01.02.2013 passed in
Writ Petition No.190 (S/S) of 2013 (Seema Singh & others Vs.
State of U.P. and others). The said judgment has subsequently been
upheld in Special Appeal (Defective) No. 848 of 2013, which has also
been upheld by Hon'ble Supreme Court in S.L.P. No. 8302 of 2014.

8. This Court vide its judgment and order dated 08.08.2023 had
disposed of Writ A No. 5745 of 2023 while giving liberty to the
petitioner to make a fresh representation to the respondent no. 1 i.e.
Principal Secretary, Department of Health and Family Welfare, U.P.,
who shall consider and decide the same in the light of the judgment
rendered by this Court in the case of Seema Singh (supra) by passing
reasoned and speaking order within a period of three weeks.

9. It is further submitted that the petitioner had made a representation
in compliance of the earlier judgment and order of this Court dated
08.08.2023 and the representation of the petitioner has been rejected
by the impugned order dated 15.09.2023.

10. It is further submitted that while rejecting the representation of the
petitioner, the respondent no. 1 has wrongly interpreted the judgment
in the case of Seema Singh (supra) and distinguished the same in a
most arbitrary manner whereas the case of the petitioner is squarely
covered by the judgment in the case of Seema Singh (supra). It has
lastly been submitted that the date of examination has yet not been
notified/ declared and the examination has not been held till date.

11. On the other hand, learned Standing Counsel has submitted that
the judgment in the case of Seema Singh (supra), parity of which has
been claimed by the petitioner is not applicable in the case of
petitioner as it relates to the Health Workers (Female) and their
services are governed by the Uttar Pradesh Medical Health and Family
Welfare Department Health Workers and Health Supervisors
(Male/Female) Service Rules, 1997 (hereinafter referred to as, the
1997) whereas the services of the petitioner is governed by the Uttar
Pradesh Ophthalmic Assistant Service (First Amendment) Rules, 2000
(hereinafter referred to as, the Rules, 2000), which has been relied and
provided by the learned Standing Counsel. The source, educational
qualification and the work are different between the services of Health
Workers and the Optometrist hence there is no illegality in the
impugned order dated 15.09.2023 and the writ petition is liable to be
dismissed.

12. Learned counsel for the respondent no. 3 has fairly submitted
before this Court that the date of written examination has yet not been
notified in pursuance of the advertisement dated 12.07.2023.

13. After hearing learned counsel for the parties and going through the
record of the case, it is found that while passing the impugned order
dated 15.09.2023, respondent no. 1 has wrongly held that the
judgment passed in the case of Seema Singh (supra) would not apply
in the case of petitioner.

14. In the case of Seema Singh (supra), matter pertained to the
training on the post of health Workers (Female). The petitioners of that
writ petition were working as Auxiliary Nurses (Midwives) from last
several years under various schemes including N.R.H.M. The issue
which was to be adjudicated in that writ petition was as to whether
authorities can grant relaxation under the Rules, 1997 governing the
services of Health Workers (Female) in the age as well as qualification
relating to the training etc.

15. This Court in the case of Seema Singh (supra) has held that there is
a provision of relaxation under the Rules, 1997, hence, concerned
competent authorities can grant relaxation in age as well as in the
qualification relating to training etc. It has further been held that the
State Government has already framed U.P. Public Services (Relaxation
of the Age Limits for Recruitment) Rules, 1992 for providing relaxation
in the maximum age limit and disposed of the writ petition with the
certain directions. For convenience the relevant paras are reproduced
hereinbelow:-

'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.

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.

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

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

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.
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.'

16. The High Court has interpreted the Rule 26 of Rules, 1997
governing the services of Health Workers (Female) in the case of
Seema Singh (supra), which is the pari materia of Rule 25 of the Rules,
2000 governing the services of optometrist. Both the rules are being
reproduced hereinbelow for convenience:-

'26.Relaxation from the conditions of Service.-Where the State
Government is satisfied that the operation of any rule regulating the
conditions of service of persons appointed to the service causes undue
hardship in any particular case, it may, notwithstanding anything
contained in the rules applicable to the case, by order, dispense with or
relax the requirement of that rule to such extent and subject to such
conditions as it may consider necessary for dealing with the case in
just and equitable manner.

25.Relaxation from the conditions of Service.-Where the State
Government is satisfied that the operation of any rule regulating the
conditions of service of persons appointed to the service causes undue
hardship in any particular case, it may, notwithstanding anything
contained in the rules applicable to the case, by order, dispense with or
relax the requirement of that rule to such extent and subject to such
conditions as it may consider necessary for dealing with the case in
just and equitable manner.'

17. The Rule 26 of Rules, 1997 whereby relaxation can be granted to
Health Workers (Female) and Rule 25 of the Rules, 2000 governing the
services of Optometrist are in verbatim the same hence the case of the
petitioner is also covered by the judgment passed in the case of
Seema Singh (supra), which has also been upheld by Hon'ble Supreme
Court in S.L.P. No. 8302 of 2014.

18. That being the position that Rule 26 of Rules 1997 & Rule 25 of the
Rules, 2000 are same in nature and Rules 26 of Rules, 1997 having
been considered and interpreted in the case of Seema Singh (supra),
the authorities could not legally take a view that the case of Seema
Singh (supra) was regulated by different Rules whereas in substance,
the Rules relating to relaxation from the conditions of service are of
the same effect in both the cases. The authorities legally erred in
trying to distinguish the case of the petitioner from the judgment in
the case of Seema Singh (supra), which interpretation was upheld by
the Hon'ble Supreme Court as well.

19. In view of the discussions made hereinabove, the impugned order
dated 15.09.20223 passed by respondent no. 1 is legally not
sustainable, thus, it is hereby quashed.

20. Writ petition is allowed.

21. Respondents are directed to consider the candidature of petitioner
in the light of this judgment and the judgment passed in the case of
Seema Singh (supra) within a period of four weeks from the date of
production of certified copy of this order."

Learned Standing Counsel has not disputed                            the
applicability of the judgement quoted hereinabove.

Keeping in view the aforesaid facts and circumstances
                                         discussed in the aforesaid judgment, the impugned order
                                         dated 21.11.2023 passed by respondent no. 1 is legally not
                                         sustainable, thus, it is hereby quashed.

                                         Writ petition is allowed.

                                         Respondents are directed to consider the candidature of
                                         the petitioners in the light of this judgment and the
                                         judgment passed in the case of Seema Singh (supra) after
                                         granting weightage on account of passed services
                                         rendered by petitioners as an Optometrist on contractual
                                         basis for the last several years under N.H.M. within a
                                         period of four weeks from the date of production of
                                         certified copy of this order.

                                         Order Date :- 16.1.2024
                                         Nitesh




Digitally signed by :-
NITESH KUMAR TEWARY
High Court of Judicature at Allahabad,
Lucknow Bench