2004 Supreme(All) 1250

HIGH COURT OF ALLAHABAD
Honble S. Rafat Alam, J. Honble Dr. B.S. Chauhan, J. Hon. R.K. Agarwal, J.
Vijay Singh
Versus
State of U.P.
Special Appeal 1143 of 2001
Decided On : 28 July 2004
SPECIAL APPEAL 1143 Of 2001

Statutory rules cannot be set at naught by issuing executive instructions.

Headnote:

POLICE SERVICE - RECRUITMENT - AGE LIMIT - RULES 1972 - APPLICABILITY - ACT 1861 - FIELD OCCUPIED - EXECUTIVE ORDERS - STATUTORY FORCE - CONSTITUTIONAL PROVISIONS - INTERPRETATION - FUNDAMENTAL RIGHTS - DENIAL - MALA FIDE - RATIO DECIDENDI.

Fact of the Case:

The Division Bench of the 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 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 Chandras case (supra) decides correct position of law?

Finding of the Court:

The Court held that the provisions of Rules 1972 could not be applicable in case of recruitment of Sub Inspectors of Police as the field stood occupied by the provisions of Act 1861 which is in operation by virtue of the provisions of Article 313 of the Constitution. The Court further held that the government orders issued for fixing the maximum age for recruitment on subordinate police posts operate in an entirely different field and are not in conflict with the Rules 1972.

Issues: 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 Chandras case (supra) decides correct position of law?

Ratio Decidendi: 1. Statutory rules cannot be set at naught by issuing executive instructions. 2. The field was already occupied by the provisions of Section 2 of the Act 1961. 3. The Legislature while enacting the provisions of Section 2 of Act 1961 itself delegated the power to the statutory authorities to fix the eligibility including the age etc. 4. The statutory authorities had performed their duties in exercise of the delegated powers from time to time without any deviation there from. 5. In such facts and circumstances, there was no occasion for His Excellency, the Governor to frame the Rules under the proviso to Article 309 of the Constitution, also applicable in the case of recruitment of subordinate police officers.

Final Decision: The Court answered the first question in the affirmative and held that the field was occupied by the government orders issued under Section 2 of the Act 1861. The Court further held that the issues raised in questions 2 and 3 were interrelated and no person has a right of appointment but has a right only to be considered against the vacancies if he fulfils the eligibility prescribed under the Statute.