- (1.) The challenge in this appeal is to the order dated 16.7.2004 passed by the division bench of the High Court of Allahabad in Civil Misc. Writ Petition No. 9127 of 2003 quashing the Office Memorandum dated 11.2.2003 as being violative of Rule 5(iv) and Rule 9(ii) of the Rules of U.P.Service of Engineers (Building and Roads Branch) Class-II Rules, 1936 (hereinafter referred to as the 1936 Rules). The Office Memorandum was challenged by the graduate junior engineers on the ground that the aforesaid circular has the effect of exempting the diploma junior engineers from undergoing and passing the qualifying examination for promotion from the post of Junior Engineer to the post of Assistant Engineer as it provided for assessment of their eligibility only by holding viva voce, and therefore, illegal. Aggrieved by the order of the High Court this appeal has been preferred by the diploma holder junior engineers. The present controversy revolves around the question as to whether the office order dated 11.2.2003 runs into the teeth of the 1936 Rules.
(2.) The following questions have been posed before us for determination: (a) Whether the 1936 Rules were in existence at the time when the office order dated 11.2.2003 was issued (b) If the 1936 Rules were subsisting, what is the effect of the office order dated 11.2.2003 (c) What is the meaning of the words "qualifying examination" prescribed under Rule 9(ii) of the Rules read with Rule 5(iv) of the Rules (a) Whether the 1936 Rules were in existence at the time when the office order dated 11.2.2003 was issued
(3.) Before we proceed further on this question we may point out that it was not the case of the appellant either before the High Court or before this Court that 1936 Rules had ceased to be in existence. Before the High Court it was the contention of the appellant that the 1936 Rules empowered the Governor of the State to grant relaxation and therefore the Office Order dated 11.2.2003 was nothing but grant of relaxation from the rigours of Rule 5(iv) read with Rule 9(ii) of the 1936 Rules. The High Court also noted that it was nobody's case that Rule 9(ii) ceased to exist nor had anyone challenged its validity. Even before this Court, the questions of law that have been raised are:- (A) Whether the writ petitioner had locus standi to challenge the Office Memorandum dt. 11.2.2003 issued by the State Government for purpose of the promotion of Diploma Holder's Junior Engineers from the post of Junior Engineers to the post of Assistant Engineers according to U.P. Service of Engineers (Building and Roads Branch) Class-II Rules, 1936 (B) Whether qualifying test as prescribed in the 1936 rules, for the purpose of promotion from Junior Engineer to Assistant Engineer meant merely written examination or any type of test like interview etc. (C) Whether the High Court failed to correctly interpret the provisions of 1936 Rules for the purpose of the promotion from the post of Junior Engineer to Assistant Engineer (D) Whether the Doctrine of desuetude is applicable when the promotions were being made for 30 years without holding any qualifying test as prescribed in the 1936 Rules, and the subsequent modified Service Rules ;