Point of Law : Employer is at liberty to legislate and provide conditions of recruitment and selection, including, age - Court would not substitute discretion of the employer until it is shown that the Rule itself is inherently arbitrary to be violative of Article 14.

JUDGMENT :

1. Heard Sri Seemant Singh, learned counsel for the petitioner and learned Standing Counsel for the State-respondent.

2. Petitioner applied for the post of Sub-Inspector (Civil Police) and other equivalent post pursuant to Direct Recruitment 2020-21 initiated vide Notification dated 25 February 2021, by the second respondent, Uttar Pradesh Police Recruitment and Promotion Board, Lucknow (for short ‘Board’).

3. By the instant petition, petitioner is challenging the validity of Rule 10 of Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service (Second Amendment) Rules, 2016 (for short ‘Rules 2016’).

4. Rule 10 provides for eligibility in respect of age. The Rule as initially enacted reads thus:

“Age-10. A candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of more than 28 years on the first day of July of a calendar year in which vacancies for direct recruitment are advertised:

Provided……...”

5. The Rule subsequently came to be amended in following terms. The amended Rule reads thus:

“Age-10. A candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of 28 years on the first day of July of a calendar year in which vacancies for direct recruitment are advertised:

Provided……………”

6. Petitioner is aggrieved that as per Rule 10 of Rules 2016, a candidate must not have attained the age of 28 years on the first day of July of a calendar year. In other words, the candidate must be aged less than 28 years i.e. the candidate attaining the age of 28 years on 30 June at 12.00 P.M. becomes ineligible as he would cross 28 years on first day of July of the calendar year. As per the earlier Rule it was mandated that the candidate must not have attained the age of more than 28 years on the first day of July of the calendar year, meaning thereby, the candidate who has attained 28 years of age on first day of July was eligible. In other words, the Rule under challenge mandates that the candidate must be below 28 years of age as on first July of the calendar year. The petitioner, herein, was born on 01 July, consequently, attained the age of 28 years and one day on the cut of date i.e. he had attained the age of 28 years, hence, hit by Rule 10.

7. The afore extracted Rule is under challenge.

8. In this backdrop, it is submitted that the Rule 10 is manifestly arbitrary and is liable to be declared ultra vires of Articles 14 and 16 of the Constitution of India.

9. Rival submissions fall for consideration.

10. The question that arises is as to whether the impugned Rule is manifestly arbitrary/unreasonable to render it violative of Article 14 of the Constitution of India.

11. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who challenges it to show that it is ultra vires/invalid. It is also well recognized that subordinate legislation can be challenged under any of the following grounds:

"(a) Lack of legislative competence to make the sub-ordinate legislation.

(b) Violation of Fundamental Rights guaranteed under the Constitution of India.

(c) Violation of any provision of the Constitution of India.

(d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

(e) Repugnancy to the laws of the land, that is, any enactment.

(f) Manifest arbitrariness/unreasonableness (to an extent where the Court might well say that the legislature never intended to give authority to make such rules)."

(Refer: State of T.N. vs. P. Krishnamurthy, (2006) 4 SCC 517 & Cellular Operators Association of India and others vs Telecom Regulatory Authority Of India and others, (2016) 7 SCC 703)

12. One of the tests for challenging the constitutionality of subordinate legislation is that the subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds