Shyamal Kumar Sen, J. - (1.) THIS appeal arises out of judgment and order dated 23.11.2001 passed by learned Single Judge dismissing the writ petition No. 37667 of 2001 of the writ petitioners -appellants. Brief facts of the case are that 675 posts of Sub -Inspector in U.P. Police Service advertised on 24.6.1994. In the said advertisement, the maximum age limit was 30 years. The writ petitioners -appellants had applied and they also underwent physical and medical tests. They were found physically and medically fit and were allotted roll numbers for the written test. However, for the reasons best known to the department, the written tests could not be held. Thereafter, another advertisement was issued inviting applications for appointment to the post of Sub -Inspector on 1.1.1999. However, in this advertisement, the maximum age limit was fixed as 25 years. Again on 1.9.2001, advertisement was issued for appointment of 987 posts of Sub -Inspector. In the meantime, maximum age limit has been enhanced to 28 years vide Government order dated 20.9.2001 contained in Annexure 5 to the writ petition. Writ petitioners challenged the action of the respondents in reducing the maximum age limit through writ petition No. 37667 of 2001. They sought issuance of a writ of mandamus commanding the respondents to allow the writ -petitioners, who had applied for the post of Sub -Inspector against the advertisement dated 24.6.1994, for which no selection was held, to appear for selection of Sub -Inspectors against the advertisement dated 1.9.2001. The writ petition was dismissed by learned Single Judge on 23.11.2001 and feeling aggrieved, the writ petitioners -appellants have preferred the instant appeal.
(2.) HEARD Sri V.K.S. Chaudhary, learned Senior Advocate assisted by S/Sri A.K. Singh and Om Prakash Singh on behalf of the appellants and Sri Sabhajeet Yadav, learned Standing Counsel on behalf of the State Government. Mainly following three questions arise for consideration and determination in the instant appeal: - - (i) Whether a rule made under Article 309 of the Constitution of India can be set at naught by an executive fiat? (ii) Whether the Fundamental Right of a citizen to equal opportunity in the matter of employment guaranteed under Article 16(1) of the Constitution has been denied to the appellants by lowering the upper age limit? (iii) Whether change in criterion and age made by executive order without any authority of law and/or reason can be upheld on the anvil of Articles 14 and 16(1) of the Constitution of India or are malafide?
(3.) SO far as the first question is concerned, Sri V.K.S. Chaudhary, learned Senior Advocate on behalf of the appellants contended that in the instant case, the provisions of the U.P. Recruitment to Service (Age Limit) Rules, 1972 (hereinafter referred to as the Rules) framed under the proviso to Article 309 of the Constitution of India have been amended merely by executive first, which is not permissible under law. Rule 2 of the Rules provides that the upper age limit for recruitment to all such services and posts under the rule making power of the Governor, for which the upper age limit is less than 32 years, shall be 32 years. There being no rules providing for age limits in the matter of recruitment to Subordinate Police Service in this State, the provisions contained in the Rules shall apply. In support of his contention, Sri Chaudhary relied on the decisions of the Apex Court in Jagannath Prasad Sharma v. State of U.P. : AIR 1961 SC 1245, Lakshman Rao v. State of Karnataka : AIR 1975 SC 1646, B.S. Vadera v. Union of India : AIR 1969 SC 118, State of Maharashtra v. Jagannath Achyut : AIR 1989 SC 1133, B.N. Nagarajan v. State of Mysore : AIR 1966 SC 1242, Sant Ram v. State of Rajasthan : AIR 1967 SC 1910, A.B. Krishna and others v. State of Karnataka : (1998) 3 SCC 495. On the other hand, Sri Sabhajeet Yadav, learned Standing Counsel repelled the argument advanced by Sri Chaudhary and vehemently urged that in the absence of any provision prescribing maximum age limit for appointment to the post of Sub -Inspectors, the State Government had the authority and jurisdiction to determine the maximum age, and therefore, no illegality was committed by the State Government by reducing the upper age limit for recruitment to the post of Sub -Inspectors. Citing a Division Bench decision in Subhash Chandra v. State of U.P. : 2000 (III) AWC 2367, Sri Yadav contended that in that case, the Division Bench of this court was confronted with a similar situation. In that case, Division Bench of this court refused to grant similar relief to the petitioners -appellants and it was held that as no rules have been framed prescribing upper age limit for recruitment, the matter has to be governed by the Government orders. Moreover, a Policeman has to perform very hard and arduous duties, round the clock, and he has to be well built and strong and must be a man of sound physique. Therefore, young and energetic persons should be appointed. According to Sri Yadav, the main enacting provision of Article 309 of the Constitution contemplates Act of the appropriate legislature regulating the recruitment and conditions of service of persons appointed to public services. Proviso to Article 309 contemplates two categories of legislation. The first category relates to rules framed by the President or such person as he may direct and the second category is Act of appropriate legislature. Since Act is pre -constitutional Act of appropriate legislature/competent authority, therefore, the provisions contained in the Act regulate the recruitment and conditions of service of persons appointed to subordinate rank of Police Force and it holds the entire field. Therefore, he contends that the proviso to Article 309 for the Constitution cannot be pressed into service or cannot be invoked at all. According to Sri Yadav, the Act regulates the appointment and other conditions of service of police personnel and the State Government is fully empowered to frame Rules under section 46 of the Act. Therefore, the Act contains specific law and provisions of Rules framed under Article 309 of the Constitution cannot be given overriding effect. In this behalf, he placed implicit reliance on the decision of the Apex Court in Chandra Prakash Tiwari v. Shaukuntla Shukla : (2002) AIR SCW 2457; Mukhtar Singh v. State and others : AIR 1959 Allahabad 569; Ram Darash Rai and another v. State of U.P. and others : 1995 (2) UPLBEC 985 and Shankar Saran v. Union of India : 1991 (3) SCC 47.;