By means of present writ petition, the petitioner is seeking a writ of certiorari for quashing the order dated 02.12.2011, passed by the opposite party no.4, contained in Annexure-1 to the writ petition, rejecting the claim of the petitioner for promotion on the post of Seench Paryavekshak on the ground that the petitioner is above 45 years of age on first January, of the selection year as per the provisions of Rule 8 (ii) of Irrigation Department Amin's Service Rules, 1954 (here-in-after referred to as the Rules, 1954), which provides that no person shall be appointed to the service under the provisions of Rule 5 (b) unless he be less than 45 years of age on the first day of January next following year in which the selection is made. The petitioner is also challenging the directions of the Superintending Engineer (opposite party no.3) addressed to the Executive Engineer, Faizabad Division, Sharda Canal, Faizabad for taking steps for promotion on the post of Seench Paryavekshak as per the provisions of Rule 8 (ii) of the Rules, 1954.
The facts in brief of the present case are that the petitioner was appointed on the post of Seench Pal in Irrigation department on 12.09.1985. The cadre of Seench Pal is a divisional cadre and the seniority of Seench Pal is determined at divisional level. The Engineer-in-Chief, Irrigation Department by means of letter dated 16.09.1996 directed all the Executive Engineers to make promotion on the post of Seench Paryavekshak/ Amin according to their seniority. Accordingly, the seniority list in Faizabad Canal Division was drawn on 11.08.2006, in which petitioner's name was placed at serial no.19. The promotion on the post of Seench Paryavekshak is to be made in pursuance to Rules, 1954. Rule 5 provides two source of recruitment, namely, (i) directly in accordance with the procedure laid down in part-V of these Rules, (ii) by promotion from amongst permanent Patrols and Tubewell Operators and by transfer of permanent Munshis recruited from Patrols in accordance with the procedure laid down in part-VI of these Rules. Rules 8 (ii) of the Rules, 1954 prescribed the age and provides that no person shall be appointed to the service under the provisions of Rule 5 (b) unless he be less than 45 years of age on the first day of January next following year in which the selection is made.
The submission of learned counsel for the petitioner is that rejection of the claim of the petitioner is contrary to Rule as cited by the opposite party no.4 in the order dated 02.12.2011, which provides that the age of a person shall not below the age of 45 years i.e. should not be less than 45 years of age and, as such, his case has wrongly been rejected for promotion by the opposite party no.4 and on the other hand, S/Sri Gaya Prasad, Ajit Pratap, Dharam Raj and Dinesh Kumar, juniors to the petitioner have been promoted by means of order dated 16.08.2010, whose names find place at serial nos. 20, 21, 26 and 33 in the seniority list dated 11.08.2006. The petitioner feeling aggrieved against his non-consideration for promotion, approached the opposite party no.4 by means of representation dated 03.04.2010 claiming his promotion strictly in accordance with the seniority list dated 11.08.2006. It is also submitted that on enquiry, the petitioner came to know that the opposite party no.4 has not promoted the petitioner on the ground that he is above 45 years of age. On further enquiry, it was revealed that the Superintending Engineer issued a letter dated 27.03.2010 addressed to the Executive Engineer of Faizabad Division indicating that for the purpose of following Rule 8 (ii) of the Rules, 1954, no person should be promoted on the post of Seench Paryavekshak, who is above 45 years of age.
Further submission of learned counsel for the petitioner is that prima-facie the letter dated 27.03.2010 is against the Rules, 1954 and more particularly Rule 8 (ii), which provides that the age of person should not be less than 45 years, whereas in the letter dated 27.03.2010, it has been indicated that the person to be promoted as Seench Paryavekshak should not be more than 45 years of age. It is also submitted that in view of the provisions of U.P. Public Service (Removal of Age Limit for Promotion) Rules, 1975 (here-in-after referred to as the Rules, 1975), no person can be precluded from being promoted on account of merely being of upper age limit and the said rules have overriding effect over all the rules prescribing the age limit for the purposes of promotion.
It is further submitted that the issue has been considered by this Court in the case of Om Prakash and others vs. State of U.P. and others reported in 2010 (1) LBESR, 665, in which it has been held that no person who is eligible for promotion in service under the State Government can be precluded from being promoted merely on account of upper age limit. The petitioner feeling aggrieved against in action of the opposite parties approached this Court by means of Writ Petition No.6557 (S/S) of 2010, Mohd. Azam Khan vs. State of U.P. & others and the said writ petition was disposed of by means of judgment and order dated 06.09.2011 with direction to the opposite party no.4 to take decision on the petitioner's representation in light of the judgment of this Court passed in Om Prakash and others vs. State of U.P. & others (supra) within three months after receipt of a certified copy of this order. The opposite party no.4 rejected the representation of the petitioner by means of order dated 02.12.2011 indicating therein that against the judgment of Om Prakash's case (supra) a special appeal was preferred, in which no interim relief was granted and the promotions were made subject to decision of appeal and the same is still pending. The petitioner feeling aggrieved against the rejection of his claim by means of order dated 02.12.2011 compelled to approach this Court once again by means of present writ petition.
I have heard learned counsel for the parties and examine the issue.
As the question involved in the present petition is purely legal in nature, therefore, with the consent of learned counsel for the parties, this Court proceeds to consider and decide the writ petition at the admission stage itself.
Admittedly, the Irrigation Department Amin's Service Rules, 1954 governs the service conditions and procedure for appointment on the post of Seench Paryavekshak. The Rule 5 (b) of Rules, 1954 provides as under:-
"(a) By direct recruitment in accordance with the procedure laid down in part-V of these Rules.
From plain reading of Rule 8 (ii), it is evident that a person claiming promotion on the post of Seench Paryavekshak should be less than 45 years of age on the first day of January next following year in which selection is made. Meaning thereby, the candidate should not be above 45 years of age. In this background, the claim of the petitioner has been rejected being above 45 years of age.
Learned counsel for the petitioner stress that the State Government in exercise of powers under proviso to Article 309 of the Constitution, has framed the Uttar Pradesh Public Services (Removal of Age Limit for Promotion) Rules, 1975, which provides that no such person shall be precluded from being promoted on account of merely of any upper age limit and these rules also have overriding effect, as such, the petitioner's claim for promotion cannot be ignored. The U.P. Public Service (Removal of Age Limit for Promotion) Rules, 1975 reads as under:-
"1. Short Title and commencement. (i) These rules may be called the Uttar Pradesh Public Services (Removal of Age-Limit for Promotion) Rules, 1975.
(ii) They shall come into force at once.
2. Upper age limit not be preclude promotion- No person otherwise eligible for promotion in substantive, temporary or officiating vacancies for any service is post under the State Government shall be precluded from being so promoted on account merely of any upper age limit.
3. Rescission- The Uttar Pradesh Public Services (Age Limit for Promotion) (Amendment) Rules 1970, and all other Rules and orders imposing any upper age limit for promotion to any service or post referred to in Rule 2 are hereby rescinded."
This issue came for consideration before this Court in Writ Petition No.5593 (S/S) of 2004 and while examining the rules of 1954 Rules, the governing cadre of Seench Paryavekshak, examined the applicability of U.P. Public Services (Removal of Age-Limit for Promotion) Rules, 1975 framed under Article 309 of the Constitution and held that these rules have overriding effect.
The similar controversy was considered by this Court in the case of Om Prakash and others vs. State of U.P. & other (supra). The learned Judge while examining the issue framed the question "whether the petitioners have rightly been denied promotion on the ground that they were over age, being above 45 years of age." and while examining the Uttar Pradesh Public Services (Removal of Age-Limit for Promotion) Rules, 1975 this Court pleased to observed in paras-14 and 15 as under:-
"14. Despite of full opportunity given to the respondents' counsel they could not show that 1975 Rules are not applicable. There is no doubt that Rule 8 (2) of Rules, 1954 provides upper age limit for promotion to the post of Sinch Paryavekshak as 45 years but the said rule has been rescinded vide Rule 3 of 1975 Rules and by virtue of Rule 2 of 1975 Rules no person who is eligible for promotion in service under the State Government be precluded from being so promoted merely on account of any upper age limit. It confers a right upon the Government Servant to claim promotion on a higher post despite of crossing the upper age limit as provided in Service Rules framed before enforcement of 1975 Rules. If one is otherwise suitable and eligible, he cannot be deprived of his promotion only on the ground of upper age limit since the effect of 1975 Rules would be to rescind the rules or part thereof pertaining to upper age limit as is evident from Rule 3 of 1975 Rules. The effect of rescission is as if sub-rule (2) of Rule 8 of 1954 Rules cease to exist on and after 27.09.1975 since 1975 Rules were published and came into force on the said date. The nature of the provisions as referred under Rule 3 of 1975 Rules stood rescinded and could not have been acted upon after the enforcement of 1975 Rules in any manner.
15. Though the Counsel for the petitioner also referred to the interim order dated 27.09.2004 passed by this Hon'ble Court in Writ Petition No.5593 (S/S) of 2004 and further submits that it appears that by notification dated 16.12.1990 even sub-rule (2) of Rule 8 of 1954 Rules already rescinded as long back as in 1960 and its existence thereafter could stood not be shown by the respondents before the Court when interim order was passed but since the notification of 1960 has not been placed before this Court for its perusal, I am not taking note of the said notification for the purpose of deciding these tow matters. In my view the selection being subsequent to 1975 Rules and the effect of 1975 Rules is also same i.e. rescission of Rule 8 (2) to the extent it provides for upper age limit in promotion, this Court is deciding the matter accordingly taking into consideration only 1975 rules."
On examining the controversy and legal issue in the present writ petition, this Court is of the considered view that in view of the provisions of Uttar Pradesh Public Services (Removal of Age-Limit for Promotion) Rules, 1975, no person, who is otherwise eligible for promotion under State Government, can be deprived from promotion merely on account of any upper age limit, as by means of these rules and all other rules and order imposing any upper age limit for promotion to any service or post have been rescinded.
In the result, the order dated 27.03.2010, passed by the opposite party no.3, contained in Annexure-5 to the petition and the order dated 02.12.2011 passed by the opposite party no.4, contained in Annexure-1 to the writ petition, are hereby quashed. The opposite party no.4 is hereby directed to examine the claim of the petitioner in the light of observations made herein above, within a period of two months from the date of receipt of a certified copy of this order.
Accordingly, the writ petition is allowed. No order as to costs.
Order Date :- 16.2.2012 Suresh/