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Patna High Court · body

2005 DIGILAW 634 (PAT)

Anil Kumar v. State of Bihar

2005-07-22

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ORDER Heard both the parties. 2. In 1952, the Bihar Service Code was made under proviso to Article 309 of the Constitution of India and the same came into force from 5th of December,1952. Clause 54 of the said Code provided that except as otherwise expressly provided in the rules regulating the methods of recruitment to a particular service or post, a person whose age exceeds twenty five years and in the case of a person belonging to the scheduled castes and backward tribes whose age exceeds 28 years, may not be admitted into the pensionable service of Government. The language used in the said clause would show that the same is applicable to direct recruits. The said clause further authorised the State Government to relax the embargo in special cases. The State Government by its resolution No. 22679 dated 9th November, 1974 raised the age limit up to 27 years for general category candidates and up to 32 years for SC/ST category candidates seeking direct appointments to the State services. There after, by a resolution No. 17105A, dated 10th,September,1977 the age limit was raised to 30 years and 35 years respectively for general category and SC/ ST category candidates. This was done up to 1979. Thereafter, the State Government further extended the age limit by a resolution No. 3/R1-308/838-2155 dated 21st,February,1986. Thereby the age limit was increased up to 30 years for general category and up to 35 years for SC and ST candidates seeking direct recruitment in the State Government Services. By a further resolution No. 3/M/208/91 1600 dated 4th February, 1991 the age limit for direct recruits was raised up to 35 years for general category candidates, up to 37 years for backward class/most backward class candidates, up to 38 years for lady candidates and up to 40 years for schedule caste and schedule tribe candidates. 3. On 3rd,July,1954 when the age limit for the direct recruits was 25 years for genera! category candidates and 28 years for scheduled caste and scheduled tribe candidates, yet another rule was framed under proviso to Article 309 of the Constitution of India for recruitment to the post of Sub-Inspector of Excise. 3. On 3rd,July,1954 when the age limit for the direct recruits was 25 years for genera! category candidates and 28 years for scheduled caste and scheduled tribe candidates, yet another rule was framed under proviso to Article 309 of the Constitution of India for recruitment to the post of Sub-Inspector of Excise. the said rules provided that Sub-Inspector of the Excise shall be appointed either by direct recruitment by means of written examination to be held in accordance with said rules or by the promotion of the selected Assistants or clerks below the age of 35 years. At the same time, it was provided that the candidates for direct appointment shall on the 1st July of the year in which the appointments are to be given, must not be less than 20 years or more than 25 years of age and in case of schedule caste and schedule tribes, the candidates should not be more than 30 years of age. There is no dispute that in order to be promoted, the candidate must pass the departmental examination held at the Police Training College, Hazaribagh. A person, in addition to passing the departmental examination held at the Police Training College, Hazaribagh, is required to pass the departmental examination under Rule 157J of the Bihar Boards Miscellaneous Rules in order to become a permanent employee of the State in order to become entitle to be promoted. There is also no dispute that in order to be promoted despite having had passed the aforementioned examinations, one is required to have seven years experience. 4. A person, who had been appointed at the age of 25 within 35 years could acquire seven years experience and also could pass the aforementioned examinations. When the said recruitment rules were made on 3rd July, 1954 the age limit for direct recruits was fixed, in consonance with the mandate of the Code, at 25 years for general category candidates but for schedule caste and schedule tripe candidates the age limit was fixed at 30 years as against 28 years as prescribed in the Code. 5. Although, by the resolutions as mentioned above the age limit of direct recruits as prescribed in the said Code had been increased but none of the said resolutions specifically dealt with increase of the age limit mentioned in the said recruitment rules made on 3rd July, 1954. 5. Although, by the resolutions as mentioned above the age limit of direct recruits as prescribed in the said Code had been increased but none of the said resolutions specifically dealt with increase of the age limit mentioned in the said recruitment rules made on 3rd July, 1954. Despite that by an advertisement published on 13th May, 2000 for filling up the posts of Sub-Inspector of Excise by direct recruitment, applications were invited from general category candidates whose age has not crossed 35 years as on 1st October, 1999 and from backward and most backward classes, whose age has not crossed 37 years on the said date and from ladies whose age has not crossed 38 years on the said date and from scheduled caste and swchedule tribe candidates whose age has not crossed 40 years on the said date in Consonance with the increase effected of the age limit as prescribed in the said Code. 6. In the case of promotees, however, it is being contended that the age limit is 35 years and if the promotee has crossed the age of 35 years he cannot be promoted. The State respondents have not taken note of the fact that while the 1958 rules 'had 'been made for direct recruitment, the age limit was 25 years, whereas for the promotees the age limit was fixed at 35 years. While for direct recruitment, the age limit has been increased to 35 years for general categories, the age limit for the promotees has not been increased correspondingly. 7. The rules provide that not more than 25 per cent of the vacancy shall ordinarily be filled up by promotion and if for any reason, the Commissioner of Excise considers it desirable, he may upon getting approval of the Board of the Revenue, fill up 50 per cent of the vacancies by promotions. Therefore, 25 per cent of the vacancies are to be filled up by promotees. If by reason of shifting of the age limit, the candidates, who are entitled to be promoted, had been appointed at the age of 28 years plus, then they cannot be promoted at all as they will not be in a position to acquire seven years of mandatory experience, despite having passed the examinations mentioned above. In a situation of that nature, the vacancies will never be filled up. In a situation of that nature, the vacancies will never be filled up. This aspect of the matter has not been considered by the respondents. 8. In such view of the matter, keeping the mandate of minimum seven years of experience, until such time the rules are altered, it is declared that the respondents are bound to promote candidates up to the age limit of 42 years and accordingly, the writ petition is disposed of by quashing the impugned order and directing the respondents to reconsider the case of promotion of the petitioner within a period of 12 weeks from the date of service of a copy of this order upon the respondent no.1. This disposes of the writ petition.