RULE 9 OF THE U.P. SERVICE OF ENGINEERS (BUILDING AND ROADS BRANCH) CLASS II RULES, 1987 IS ULTRA VIRES AS IT IS UNWORKABLE WITHOUT RULES 5 AND 6 AND IS NOT SEVERABLE FROM THEM.

M. Katju, J.

By means of this writ petition the Petitioner prays for regularisation as Assistant Engineer in the U.P. Public Works Department in accordance with the U.P Regularisation of ad hoc promotions Rules, 1988 (Annexure 7 to the writ petition). The Petitioner had obtained a Diploma in Civil Engineering and he joined the Public Works Department, U.P. on 20-6-1956 as a trainee Overseer. On successful completion of his training he was appointed as ad hoc Overseer on 23-10-1956 and as officiating Overseer on 20-6-1957 The Petitioner's appointment as an Overseer was approved by the U.P. Public Service Commission in 1959 and he was placed in the list of Overseers prepared by the Commission; The nomenclature of the post of Overseer was changed to Junior Engineer in 1959 and the Petitioner was confirmed in the said post. The Petitioner has been promoted as Assistant Engineer in 1981 and be has been working as Assistant Engineer in ad hoc capacity since then. Now by this writ petition the Petitioner prays that he should be considered for regularisation first before promoting other Junior Engineers who are not working as Assistant Engineers.

2. A counter affidavit has been filed in this case in which it has been asserted on the basis of various provisions that the Petitioner is not qualified to be appointed as Assistant Engineer.

3. I have heard Shri S.C. Budhwar, learned Counsel for the Petitioner and learned standing counsel for Respondents.

4. Rule 5(1)(3) of the U.P. Service of Engineers (Building and Roads Branch) Class II Rules. 1987 had provided the source of appointment of Assistant Engineer by promotion. Rule 9 laid down the qualifications for appointment as Assistant Engineer and this rule stated that only those persons can be promoted as Assistant Engineer who had either got A.M.I.E. certificate or bad passed the departmental examination. By the amendment of 1969 and 1971, Rules 5 and 6 were substituted by the new rules, but these new rules were declared ultravires by a Division Bench of this Court in writ petition No. 2447 of 1980 V.N. Mittal v. State of U.P. and Ors. decided on 14-1-82 In para 113 of this judgment it was observed that since the substituted rules have been declared ultravires, the old rules will not get revived. Reference was made in this connection to the decision of the Hon'ble Supreme Court in Firm A.T.B. Mehtab Majid and Co. Vs. State of Madras and Another, AIR 1963 SC 928, where the Hon'ble Supreme Court held that once the old rule has been substituted by the new rule it ceases Jo exist and it does not automatically get revived when the new rule is held to be invalid. In B.N. Tiwari Vs. Union of India (UOI) and Others, AIR 1965 SC 1430, the Hon'ble Supreme Court held that the carry forward rule of 1952 was substituted by the 1955 Rule and hence the striking down of the 1955 rules as un-constitutional did not revive the 1952 Rules:

5. In view of the aforesaid judgments of Hon'ble the Supreme Court which have been referred to by the Division Bench in V.N. Mittal's case it is obvious that the original rules 5 and 6 which laid down the source of recruitment did not revive

6. It may be noticed that in V.N. Mittal's case the division bench did not expressly strike down Rule 9. The contention of Shri Budhwar, learned Counsel for the Petitioner, however is that Rule 9, which provides the qualification for appointment as Assistant Engineer, is unworkable without Rubs 5 and 6. In other words, Shri Budhwar's contention is that if Rules 5 and 6 fall, then Rule 9 also falls by implication as it cannot exist independently without the former and hence is not severable from Rules 5 and 6. In my opinion Shri Budhwar's contention is correct. In fact Rule 9(1) begins with the words 'No person shall be recruited to the service under the provisions of Rule 5(i), 5(ii) or 5(iii) unless. "This makes it clear that Rule 9 is unextricably linked with Rule 5 and cannot survive without the latter. When there is no presc