DR. B. S. CHAUHAN, J.

( 1 ) THE Division Bench of this Court while hearing the Special Appeal No. 1143 of 2001, Vijai Singh and ors. Vs. State of U. P. and ors. against the judgment and order of the learned Single Judge in Civil Misc. Writ Petition No. 37667 of 2001, Vijai Singh and ors. Vs. State of U. P. and 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. and 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 o

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