5. In pursuance thereof the impugned order has been passed on the ground that on the 1st day of recruitment year i.e. 1.7.1998 she was more than 45 years old and therefore, was ineligible to be considered for recruitment to the post in accordance to the Rules.
6. It is urged that the process of promotion started in 1996 and, therefore, her age had to be considered as on 1.7.1996 and the amendment of 1998 not being retrospective, would not apply to her case. In support thereof reliance is placed upon the decisions of the Apex Court in the case of P. Mahendran and others Vs. State of Karnataka and others (AIR 1990 SC 405 (1) and B.L. Gupta Vs. Municipal Corporation of Delhi (1998 SCC (9) 223). It is further urged that the case of the petitioner is covered by a single Judge decision of this Court in the case of Smt. Rekha Gupta Vs. State of U.P. (W.P. No. 45619 of 1999, decided on 12.9.2002).
7. The argument of the petitioner proceeds on a total misconception that Anganwadi Worker is entitled to promotion on the post of Mukhya Sevika because she is not even a member of service under the 1992 Rules but under the 1996 Amendment she is entitled to be considered for direct recruitment on the post. It is no doubt true that once the process of recruitment had begun and the incumbents had applied for being appointed, change in the recruitment rules would not make any difference to their rights, unless the rules were retrospective, as held in P. Mahendran & others Vs. State of Karnataka and others and B.L. Gupta Vs. Municipal Corporation of Delhi cases (Supra). But the crucial question is whether it will apply on the present facts and whether the process had begun in 1996.
8. Under Rule 5 (4) of the rules of 1992 the post was to be filled up 100% by direct recruitment through a Departmental Selection Committee on the basis of interview. The determination of vacancies which are to be filled up in that year have to be determined under Rule 14 while the procedure itself is provided in Rule 15(2). For ready reference Rule 5 (4); Rule 14 and Rule 15 (2) are quoted below:
"5. Source of recruitment.-- Recruitment to the various categories of posts in the service shall be made from the following sources:
4. Mukhya Sevika.-- By direct recruitment through the Departmental Selection Committee on the basis of interview."
"14.Determination of Vacancies- The appointing authority shall determine the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6. The vacancies to be filled through the Commission shall be intimated to them. The vacancies to be filled by direct recruitment through the Departmental Selection Committee shall be notified to the Employment Exchange. The appointing authority may also invite applications directly from the persons who have their names registered in the Employment Exchange for this purpose, the authority shall issue an advertisement in a local daily newspaper besides pasting the notice for the same on the Notice Board. All such applications shall be placed before the Departmental Selection Committee"
"15.-Procedure for direct recruitment through the Departmental Selection Committee:-
(2) The Departmental Selection Committee shall scrutinize the applications and having regard to the need for securing due representation of the candidates belonging to Schedule Castes, Scheduled Tribes and other categories under Rule 6 call for interview such member of candidates, who fulfil the requisite qualifications, as it considers proper."
9. A perusal thereof shows that after determination of vacancies by the appointing authority to be filled up during the course of the year, information has to be sent to the Public Service Commission for the vacancies to be filled by them and the vacancies to be filled up by the Departmental Selection Committee are to be notified to the Employment Exchange and the appointing authority may also invite applications directly from such persons and for this purpose it shall issue advertisement in local newspaper besides pasting it on the Notice Board.
10. The aforesaid Rules of 1992 were amended vide notification dated 25.12.1996 and thereby Rule 5 (4) was amended and instead of 100% recruitment through direct recruitment for the posts of Mukhya Sevika, it was provided that 75% would be by direct recruitment through competitive examination and interview while 25% would be reserved for Anganwadi Workers who have passed High School and have completed 10 years of continuous service and at the time of recruitment are less than 45 years of age only on the basis of interview. For ready reference the amended rule is quoted below:-
"4. Mukhya Sevika (1) 75% by direct recruitment through the Selection Committee from amongst female candidates on the basis of competitive examination and interview.
(2) 25% by direct recruitment through the Selection Committee on the basis of interview from amongst High School or equivalent examination pass Anganwadi Workers who have completed ten years continuous service as such and have not attained the age of more than 45 years on the first day of the years of recruitment."
(2) Fifty per cent by direct recruitment through the Selection Committee in accordance with rule 15-B from amongst High School or equivalent examination pass, Anganwadi Workers who have completed ten years' continuous service as such and have not attained the age of more than forty five years on the first day of the year of recruitment."
13. Correspondingly Rule 15 B was added providing the composition of the Selection Committee in Clause (1) while preparation of merit list and norm for awarding marks is provided in Clauses (3) and (4).
14.By the 1998 amendment fifty per cent of the post of Mukhya Sevika was earmarked for direct recruitment from qualified Anganwadi Worker but on merit as provided in clause (3) of Rule 15-B. However, Rule 14 remained untouched by any amendments. The first step which is to be taken before any proceedings for recruitment are put in motion is provided under Rule 14. The Appointing Authority has to determine the vacancies which have to be filled during the course of the year by Anganwadi Worker and only thereafter it has to proceed to inform the Employment Exchange and then publish a notice in the local daily newspaper inviting applications for such recruitment and may also paste the notice on the Notice Board. It is only thereafter that all the applications so received are to be placed before the Departmental Selection Committee.
15.In this background, let us examine the pleadings of the petitioner as to how the proceedings for recruitment were set in motion. In paragraphs 13,14 and 15 it is alleged that the Joint Director had asked all the Project Officers to collect and send the list of High School pass Anganwadi Workers who have completed 10 years and are below 45 years in age vide letter dated 4.10.1996 followed by a reminder dated 6.11.1996 and by another letter dated 9.8.1997 additional information was sought to initiate the process for recruitment. It is to be borne in mind that only after amendment of 1996 which came into force in Dec. 1996, Anganwadi Worker was made eligible for recruitment to the post of Mukhya Sevika and no proceeding could have been initiated even prior to the said amendment. It is also explained in paragraph nos. 14 and 15 of the counter affidavit that only information was sought for policy decision as the selection process was not clear, but no selection proceedings were initiated in 1996. The writ petition is silent as to when any advertisement inviting applications was published and when the petitioner applied. Mere collecting data for any purpose even before enforcement of the rule, cannot lead to any inference that process of selection had started. As noticed earlier, the proceedings for recruitment could only be started after this first step is taken under Rule 14.
16.The petitioner has sought the benefit of the decision of this Court in the case of Smt. Rekha Gupta (Supra). A copy of the judgment is annexed with the petition. In the said case the learned Single Judge proceeded on the basis of Rule 18 which postulates recruitment by promotion and apart from mentioning Section 14 fleetingly, it did not consider the import of the said rule. Thus, to this extent, the decision is per incurium. Further in the said case, the incumbent had been called for facing interview vide notice dated 3.8.1998 fixing the interview on 8.9.1998. It was only thereafter that the changed criteria by the 1998 amendment was sought to be introduced and in these circumstances, it held that once the incumbent had been called for the interview, the amended rules could not be enforced in her case as the amendment was not retrospective. However, as observed hereinabove that in the case of the present petitioner, no step was taken to start the recruitment process and she was also never called for interview on the strength of the 1996 amendment. Therefore, the decision does not help the petitioner.
17.For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India.
18.The writ petition is accordingly rejected.