Dr.B.S.Chauhan, J. - (1.)The Division Bench of this Court while hearing the Special Appeal No. 1143 of 2001, Vijai Singh & ors. Vs. State of U.P. & ors. against the judgment and order of the learned Single Judge in Civil Misc. Writ Petition No.37667 of 2001, Vijai Singh & ors. Vs. State of U.P. & ors., dated 23.11.2001, wherein it had been held that provisions of the U.P. Recruitment of Service (Age Limit) Rules, 1972, hereinafter called the "Rules 1972" are not applicable in case of appointment of Sub Inspectors of Police in U.P. as the field stood occupied by the provisions of the Police Act, 1861, hereinafter called the "Act 1861", which empowers the State Government to issue Government Orders from time to time fixing eligibility including the minimum and maximum age etc., disagreed with the earlier judgment dated 23.10.2002 of another Division Bench of this Court in Subhash Chandra Sharma Vs. State of U.P. & ors., (2000) 3 AWC 2367, and referred the following questions to the larger Bench for its opinion:-
"1. Whether a rule made under Article 309 of the Constitution of India can be set at naught by an executive fiat? 2.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? 3.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 mala fide? 4.Does the Division Bench decision in Subhash Chandra's case (supra) decides correct position of law?" At the time of hearing, there has been an agreement among the members of the Bar that the question no.1 does not require any answer as it is settled law that executive fiat cannot override the statutory provisions. It requires to be re-framed and it was reframed as under:- "As to whether any order issued by the State Government in exercise of its power under Section 2 of the Police Act 1861, has statutory force and occupies the field and, therefore, there is no scope of application of Rules 1972."

(2.)Before we enter into the legal aspects of the reference, it is necessary to mention the facts briefly which are as under. To fill up 530 posts of Sub Inspectors, advertisement was issued on 04.10.1991 wherein the upper age limit for candidates was mentioned as 30 years. Fixing maximum age as 30 years was challenged by filing Writ Petition No. 32156 of 1991, Indra Bahadur Singh Vs. State of U.P. & ors. and the same was dismissed vide order dated 31.03.1992. The selection process could not be completed and it stood cancelled vide order dated 09.06.1994. A fresh advertisement was issued on 24.06.1994 for filling up 674 posts including the posts advertised earlier on 04.10.1991 of Sub Inspectors of Police fixing the upper age limit as 30 years. However, the order dated 09.06.1994 by which selection process initiated in pursuance of advertisement dated 04.10.1991 stood cancelled, was challenged before this Court in Ram Darash Rai Vs. State of U.P. & ors., 1995 (2) UPLBEC 985, which was allowed vide judgment and order dated 23.05.1995 and the order dated 09.06.1994 was quashed with a direction to complete the selection process which commenced by virtue of advertisement dated 04.10.1991. The said judgment was upheld by the Division Bench in Special Appeal with some modification in Jagdamba Prasad Singh & ors Vs. State of U.P. & ors., 1996 (4) UPLBEC 2605. The selection process was completed and result was declared on 02.12.1996 for filling up all the advertised vacancies. The advertisement dated 24.06.1994 could not be carried out further. Neither examination nor interview took place, thus, stood abandoned. In order to facilitate the applicants therein, news items were published in the newspapers that they could take back the fee etc. deposited by them. To fill up further vacancies, a fresh advertisement was issued on 04.05.1999 wherein the maximum age limit was fixed as 25 years as on 01.01.1999. The said advertisement was challenged by filing a Writ Petition No.20771 of 1999, Jai Prakash Rai & ors. Vs. State of U.P. & ors. However, the petition stood dismissed vide judgment and order dated 03.03.2000 and that order was challenged by filing Special Appeal No. 232 of 2000, Subhash Chandra Sharma (supra), which also stood dismissed. Being aggrieved, a Special Leave Petition (Civil) No.12045 of 2000 was filed before the Hon'ble Supreme Court which stood dismissed vide order dated 16.08.2000. Selection process was completed. Appointments had been made and the advertisement dated 04.05.1999 stood exhausted. Petitioner-appellants had also challenged the advertisement dated 04.05.1999, and the petition filed by them was also dismissed along with other cases vide judgment and order dated 03.03.2000. They did not challenge the said judgment further as had been done by others. Respondents further advertised the vacancies vide advertisement dated 01.09.2001 fixing the maximum age limit of 25 years which was enhanced vide Government Order dated 20.09.2001 to 28 years and last date for submission of applications was also shifted from 15.01.2001 to 31.10.2001. The Writ Petition No. 37667 of 2001 was filed by 19 petitioners challenging the eligibility criteria, i.e. fixing the maximum age as 28 years by Government Order on the ground that it was violative of the mandatory provisions contained in Rules 1972, which prescribed maximum age as 32 years and further relaxation upto five years in case of reserve category candidates. The said writ petition was dismissed vide judgment and order dated 23.11.2001. When the issue was assailed before the Division Bench, the aforesaid four questions have been referred to for opinion. In the meantime, result of the main-examinations was declared on 28.07.2003. Writ Petition, i.e. No.34757 of 2003, Durgesh Pratap Singh & ors. Vs. State of U.P. & ors., challenging the said result also has been dismissed on 26.02.2004.
(3.)The provisions of Rules 1972 provide for maximum age limit of 32 years for all posts to be filled up under the Rules for which Rule making power is with the Government. The said Rules have been made under the proviso to Article 309 of the Constitution of India. The provisions of Section 2 of the Act 1861 provide that the entire police establishment of the State shall consist of such number of officers and "shall be constituted in such manner as shall be ordered by the provincial government." Thus, for recruitment of Sub Inspectors and Police Constables, i.e. officials of subordinate ranks, the said provision empowers the State Government to issue Orders from time to time prescribing eligibility including age limit etc. The case requires to be considered in view of these statutory provisions. QUESTION NO.1