Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Recruitment Of Homeopathic Pharmacist; Matter Of Policy..the Fixation Of A Minimum Age Requirement ...cannot Be Regarded As Being Arbitrary Or ....
JUDGEMENT TITLE : Maneesha And 9 Others Vs. State Of U.P. And 2 Others On 10/06/2015 By Allahabad High Court
CASE NO : WRIT - C NO. 55518 OF 2015
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Yashwant Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR

Case :- WRIT - C No. - 55518 Of 2015

Petitioner :- Maneesha And 9 Others
Respondent :- State Of U.P. And 2 Others
Counsel For Petitioner :- Siddharth Khare,Ashok Khare
Counsel For Respondent :- C.S.C.,K.S. Kushwaha

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

(Per : Dr D Y Chandrachud, CJ)

The Petitioners Have Passed The Intermediate Certificate Examination And Possess A Two Year Diploma As Homeopathic Pharmacists. The Recruitment To The Post Of Homeopathic Pharmacist In The Service Of The State Government Is Governed By A Set Of Rules Known As The U.P. Homeopathic Pharmacist Service Rules 19911. On 28 May 2015, The Rules Which Have Been Framed Under Article 309 Of The Constitution Were Amended By The U.P. Homeopathic Pharmacists Service (First Amendment) Rules, 2015. As A Result Of The Amendment, Rule 8 Was Substituted. Rule 8 Which Provides For The Academic Qualifications Now Stipulates That A Candidate Must Have Passed The Intermediate Examination With Science (Mathematics Or Biology Group) Of The Board Of High School And Intermediate Education Of Uttar Pradesh Or An Examination Recognized By The Government Equivalent Thereto And Must Have Obtained A Two Year's Homeopathic Pharmacist Diploma From A Recognized Institution And Must Have Undergone A Three Months' Training Course. Prior To The Amendment, The Prescribed Qualification Was Passing Of The High School Examination.
The Pre Amended Rule 8 And The Substituted Provision Are As Follows:
"Column-1 Column-2
Existing Rule Rule As Hereby Substituted
Academic 8
qualification
A Candidate For Direct Recruitment To The Posts In The Service Must Have Passed High School Examination From The Board Of High School And Intermediate Education, Uttar Pradesh Or An Examination Recognized By The Government As Equivalent Thereto, And Must Have Successfully Undergone One Year's Homeopathic Compounder's Training Course In An Institution Recognized Or Maintained By The Government Or Have Two Years Practical Experience As Homeopathic Compounder In A Government Recognized Institution Or Have Three Years Practical Experience As Homeopathic Compounder Under A Medical Practitioner Duly Registered With The Homeopathic Medicine Board.
Academic 8
qualification
A Candidate For Direct Recruitment To The Posts In The Service Must Possess The Following Qualifications:
(i) Must Have Passed The Intermediate Examination With Science (Mathematics Or Biology Group) Of The Board Of High School And Intermediate Education, Uttar Pradesh Or An Examination Recognized By The Government As Equivalent Thereto,
(ii) Must Have Obtained Two Year's Homeopathic Pharmacist Diploma From An Institution Recognized By The Government And Has Undergone Three Months Homeopathic Pharmacist Training Course From An Institution Recognized Or Maintained By The Government, And
(iii) Must Be Registered With The Homeopathic Medicine Board, Uttar Pradesh.

The Age Stipulation In Rule 10 Prior To The Amendment Was That A Candidate For Direct Recruitment Must Have Attained The Age Of Eighteen Years And Must Not Have Attained The Age Of More Than Thirty Two Years On The First Day Of July Of The Calendar Year In Which The Vacancies Are Advertised By The Commission. After Amendment, Rule 10 Provides That A Candidate Must Have Attained The Age Of Twenty One Years And Must Not Have Attained The Age Of More Than Forty Years On The First Day Of July Of The Calendar Year In Which The Vacancies Are Advertised.
The Pre Amended Rule And The Rule As Amended Read As Follows:
"Column-1 Column-2
Existing Rule Rule As Hereby Substituted
Age 10
A Candidate For Direct Recruitment Must Have Attained The Age Of Eighteen Years And Must Have Not Attained The Age Of More Than Thirty Two Years On The First July Of Calendar Year In Which Vacancies Are Advertised By The Commissioner:
Provided That The Upper Age Limit In The Case Of Candidates Belonging To The Scheduled Castes, Scheduled Tribes And Such Other Categories As May Be Notified By The Government From Time To Time Shall Be Greater By Such Number Of Years As May Be Specified.
Age 10
A Candidate For Direct Recruitment Must Have Attained The Age Of Twenty One Years And Must Not Have Attained The Age Of More Than Forty Years On The First Day Of July Of The Calendar Year In Which Vacancies Are Advertised:
Provided That The Upper Age Limit In The Case Of Candidates Belonging To The Scheduled Castes, Scheduled Tribes And Such Other Categories As May Be Notified By The Government From Time To Time Shall Be Greater By Such Number Of Years As May Be Specified.

The Petitioners Have Not Completed The Age Of Twenty One Years And Hence Challenge The Amendment Enhancing The Minimum Age From Eighteen To Twenty One As Being Arbitrary And Violative Of Article 14.
The Submission Which Has Been Urged On Behalf Of The Petitioners By The Learned Senior Counsel Is That There Is No Reasonable Basis For Enhancing The Minimum Age From Eighteen To Twenty One. Moreover, It Was Sought To Be Urged That The Advertisement Which Has Been Issued By The U.P. Subordinate Services Selection Commission On 7 October 2015 For Filling Up Posts In Various Services Would Indicate That The Minimum Age For Appointment Of A Pharmacist Allopath Under The Director, Employees' State Insurance Scheme2 Is Eighteen Years. The Same Minimum Age Of Eighteen Years, It Has Been Submitted, Has Been Stipulated For Appointment Of Pharmacist Homeopaths Under The Director, ESIS And Pharmacist, Ayurved. Hence, It Was Submitted That There Is No Reason Or Justification To Provide A Minimum Age Requirement Of Twenty One Years In The Case Of A Pharmacist Falling Under The Director Of Homeopathy.
At The Outset, It Must Be Emphasized That The Basic Principle Is That The Fixation Of Minimum And Maximum Age For Direct Recruitment To A Service Is Primarily A Matter Of Policy. Undoubtedly, The Stipulation In Regard To The Minimum Age For Entry Into The Service, As Indeed The Fixation Of A Maximum Age, Cannot Be Arbitrary And Must Be Based On Some Reasonable Basis. However, Unless It Is Established Before The Court That The Fixation Of An Age Of Entry For Direct Recruitment Is Palpably Unreasonable So As To Lead The Court To Come To The Conclusion That There Is A Situation Of Manifest Arbitrariness, The Court Would Not Exercise Its Power Of Judicial Review To Strike Down A Subordinate Legislation As Being Violative Of Article 14 Of The Constitution.
The Notification Which Was Issued On 28 May 2015 Enhances The Educational Qualifications Required For Appointment To The Post Of Homeopath Pharmacist From The High School Examination To The Passing Of The Intermediate Examination With Science In Mathematics Or Biology Group Of The Board Of High School And Intermediate Education. Ordinarily, The Rule Making Authority Would Be Entitled To Take Cognizance Of The Fact That A Candidate Commences Primary Education At The Age Of Six And Would Complete The High School Examination At The Age Of Sixteen. The Candidate Would Pass The Intermediate Examination At The Age Of Eighteen. The Two Year Diploma Which Is Mandated By The Rule Would Ordinarily Hence Be Completed By A Candidate At The Age Of Twenty.
Having Due Regard To This Background, It Cannot Be Postulated That Fixing The Minimum Age As Twenty One Years For Direct Recruitment Is Arbitrary Or That It Suffers From Perversity. The Matter Can Be Looked At From An Alternate Perspective As Well. The State Is Entitled To Take The View While Fixing The Minimum Age Requirement, That A Candidate Should Have A Degree Of Maturity While Entering Upon Service. This Is Undoubtedly A Matter Of Policy On Which It Would Not Be Possible For The Court To Second Guess The Wisdom Of The Subordinate Legislative Authority.
We Are Not Impressed With The Submission That The Minimum Age Has Been Fixed Below Twenty One In The Case Of Other Posts. Admittedly, The Rules For Those Posts Are Independent Rules Framed Under Article 309 Of The Constitution. In That Sense, There Cannot Be A Parity Between Posts Which Are Governed Under A Different And Independent Set Of Rules And The Rules Which Have Been Framed Under Article 309 While Enhancing The Educational Qualification, As In The Present Case, From High School To Intermediate. The State Government While Framing The Subordinate Legislation Has Come To A Considered View That It Is Expedient To Fix The Minimum Age Requirement As Twenty One Years. The Maximum Age In The State Has Been Extended To Forty Years.
The Learned Counsel Relied Upon The Judgment Of The Supreme Court In Indravadan H. Shah Vs. State Of Gujarat And Another3. That Was A Case Where The Rules For Judicial Service In The State Of Gujarat Had Been Amended To Provide That A Civil Judge (senior Division) After Completing The Age Of Forty Eight Years Would Not Be Eligible For Consideration For Promotion To The Post Of Assistant Judge And His Name Though Appearing In The Select List Was Liable To Be Struck Off On His Completing The Age Of Forty Eight. This Rule Was Held By The Supreme Court To Have No Nexus To The Object Sought To Be Achieved.
The Supreme Court Observed As Follows:
"...There Is No Nexus To The Object Sought To Be Achieved By Introducing The Age Restriction As Regards The Promotion By Appointment To The Post Of Assistant Judge From Amongst The Members Of The Gujarat Judicial Service (Junior Branch), As Provided In Rules 6(4)(i) And 6(4)(iii)(a) Of The Said Rules. But In Respect Of Appointment To The Higher Post Of A District Judge By Promotion From Amongst The Members Of The Junior Branch Who Have Served As Assistant Judges, No Such Restriction Of Age Has Been Provided In Rule 6(2)(i)(a) And (b) Of The Said Rules. There Is Obviously No Rationale, Nor Any Reasonableness For Introduction Of This Age Bar In Regard To Appointment By Promotion To The Post Of An Assistant Judge..."

This Was Therefore A Case Where The Imposition Of An Age Restriction For Appointment Of An Assistant Judge By Promotion From Amongst Members Of The Service Holding Posts Of Civil Judge (junior Division) And Those In The Cadre Of Civil Judge (senior Division) In Regard To Persons Whose Name Were Entered In The Select List Was Held To Be Without Any Basis. These Are The Distinguishing Facts Of That Case.
The Decision Of The Apex Court In Indian Council Of Legal Aid & Advice And Ors. Vs. Bar Council Of India And Anr.4 Dealt With A Situation Where The Bar Council Of India Had Framed Rules Which Had The Effect Of Shutting Out From The Legal Profession Those Who Sought Entry After Completing The Age Of Forty Five Years. This Was Held To Be Ultra Vires.
The Supreme Court Observed As Follows:
"The Next Question Is, Is The Rule Reasonable Or Arbitrary And Unreasonable? The Rationale For The Rule, As Stated Earlier, Is To Maintain The Dignity And Purity Of The Profession By Keeping Out Those Who Retire From Various Government, Quasi-Government And Other Institutions Since They On Being Enrolled As Advocates Use Their Past Contacts To Canvass For Cases And Thereby Bring The Profession Into Disrepute And Also Pollute The Minds Of Young Fresh Entrants To The Profession. Thus The Object Of The Rule Is Clearly To Shut The Doors Of The Profession For Those Who Seek Entry Into The Profession After Completing The Age Of 45 Years. In The First Place, There Is No Reliable Statistical Or Other Material Placed On Record In Support Of The Inference That Ex-government Or Quasi-government Servants Or The Like Indulge In Undesirable Activity Of The Type Mentioned After Entering The Profession. Secondly, The Rule Does Not Debar Only Such Persons From Entry Into The Profession But Those Who Have Completed 45 Years Of Age On The Date Of Seeking Enrolment. Thirdly, Those Who Were Enrolled As Advocates While They Were Young And Had Later Taken Up Some Job In Any Government Or Quasi-Government Or Similar Institutions And Had Kept The Sanad In Abeyance Are Not Debarred From Reviving Their Sanads Even After They Have Completed 45 Years Of Age. There May Be A Large Number Of Persons Who Initially Entered The Profession But Later Took Up Jobs Or Entered Any Other Gainful Occupation Who Revert To Practise At A Later Date Even After They Have Crossed The Age Of 45 Years And Under The Impugned Rule They Are Not Debarred From Practising. Therefore, In The First Place There Is No Dependable Material In Support Of The Rationale On Which The Rule Is Founded And Secondly The Rule Is Discriminatory As It Debars One Group Of Persons Who Have Crossed The Age Of 45 Years From Enrolment While Allowing Another Group To Revive And Continue Practise Even After Crossing The Age Of 45 Years. The Rule, In Our View, Therefore, Is Clearly Discriminatory. Thirdly, It Is Unreasonable And Arbitrary As The Choice Of The Age Of 45 Years Is Made Keeping Only A Certain Group In Mind Ignoring The Vast Majority Of Other Persons Who Were In The Service Of Government Or Quasi-Government Or Similar Institutions At Any Point Of Time. Thus, In Our View The Impugned Rule Violates The Principle Of Equality Enshrined In Article 14 Of The Constitution."
This Decision Of The Supreme Court Involved The Fixation Of An Upper Age Limit. The Rule Was Held To Be Discriminatory As It Allowed One Group Of Persons To Revive And Conduct Practice Even After Crossing The Age Of Forty Five While Debarring Others. The Supreme Court Also Held That The Rule Was Unreasonable Since The Fixation Of Age Was Made Keeping In Mind Only A Certain Group While Ignoring A Vast Majority Of Other Persons Who Were In The Services Of The Government Or Quasi-Government Or Similar Organizations.
Ultimately, These Decisions Indicate That The Issue As To Whether The Fixation Of An Age Requirement Is Arbitrary Would Depend Upon The Facts Of That Case.
In The Present Case, For The Reasons That We Have Already Indicated, The Fixation Of A Minimum Age Requirement Of Twenty One Years Cannot Be Regarded As Being Arbitrary Or Violative Of Article 14 Of The Constitution.
Hence, We See No Merit In The Writ Petition.
The Writ Petition Is, Accordingly, Dismissed. There Shall Be No Order As To Costs

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