JUDGMENT N.V. DABHOLKAR, J. :- By this writ petition, petitioner challenges the judgment and order passed by Maharashtra Administrative Tribunal, Bench at Aurangabad on 5-11-2004 (Exh.Y). By the impugned judgment, learned Members of MAT were pleased to dismiss Original Application Nos. 937/2004; 946/2004 and 964/2004. Present petitioner was a petitioner in Original Application No. 937/2004. By seeking quashment of the impugned judgment, petitioner also seeks directions to respondent Nos. 1 to 4 to provide relaxation of upper age limit for in-service candidates, during the process of filling up the posts, which were likely to be advertised on 24-10-2007 (writ petition is filed on -20-10-2007) i.e. Maharashtra Engineering Services Examination 2007 (refer schedule of examinations published by MPSC on 16-7-2007 - Exhibit X). In fact, petitioner had filed Writ Petition No. 7356/2004 challenging this very judgment, by which prayer for relaxation of upper age limit for in-service candidates was turned down by relying upon the provisions of the Maharashtra Civil Services (Provision of Upper Age Limit for Recruitment by Nomination) Rules, 1986. During the pendency of said writ petition, a statement was made on behalf of respondents that the issue of relaxation of upper age limit was under consideration by the Government and, therefore, this Court was not inclined to entertain the matter. The said writ petition came to be disposed of accordingly by order dated 15-12-2004 (Exhibit Z). Eventually, although learned Government Pleader has opposed the writ petition tooth and nail, contentions such as laches and res judicata were not raised in all fairness and, therefore, the events regarding previous writ petition have not remained of any significance. 2. Petitioner, on completion of Diploma in Civil Engineering (DCE) in the year 1983, joined service as Junior Engineer under respondent No. 2 i.e. Irrigation Department, with effect from 2-11-1983. He was promoted to the post of sectional Engineer with effect from 1-4-1989. While in service, he acquired' qualification of Associate Membership of Institute of Engineers (AMIE) in 1994, which is regarded as equivalent to Bachelor in Engineering. Consequently, petitioner was elevated from the post of sectional Engineer to that of Assistant Engineer Grade II (for short AE-II). Lastly, petitioner was promoted to the post of Sub Divisional Engineer by an order dated 24-3-2003 and at present he is working in that capacity. Consequently, petitioner was elevated from the post of sectional Engineer to that of Assistant Engineer Grade II (for short AE-II). Lastly, petitioner was promoted to the post of Sub Divisional Engineer by an order dated 24-3-2003 and at present he is working in that capacity. Petitioner has given hierarchy in the cadre of engineering services in Irrigation and Public Works Department as under: Secretary Chief Engineer Superintending Engineer Executive Engineer Deputy Engineer (This is said to be otherwise called Assistant Engineer Grade-lor AE-I) AE-II/sectional Engineer Junior Engineer. (In fact, if the hierarchy given in para 10 of the petition is taken into consideration, AE-II and sectional Engineer do not seem to be unequal posts although petitioner claims that from the post of sectional Engineer, he was promoted as AE-II in the year 1994. In the hierarchy itself, petitioner has not shown his present post i.e. Sub Divisional Engineer.) For the post of Deputy Engineer, appointments are by three sources; 34% by nomination through MPSC, 33% from amongst in-service engineering, graduates i.e. AE-II and 33% from in-service diploma holder civil engineers commonly known as sectional Engineers. In paras 11 to 20, petitioner has given a detailed account of the cadre, 800 to 850 posts being 34% of the cadre of Deputy Engineers, available for being filled in by nominations through MPSC and how there is backlog in that region, either due to rare occasions of recruitment and due to recruitment of less number of candidates than actual vacancies whenever such process was carried out. For the purpose of adjudication of present writ petition, these details are not necessary, but petitioner seems to have added those in order to demonstrate that due to lack of vigilance in filling in the posts as and when there were vacancies in the cadre, in-service candidates have lost opportunity and now the opportunity is being totally denied as a result of in-service candidates like petitioner and similarly placed individuals, having crossed the upper age limit for appointment by nomination. These contents can be read as an argument on behalf of petitioner that for no fault on the part of in-service candidates, they did not get sufficient opportunities to contest with fresh candidates applying in response to advertisement for appointment by nomination to the post of Deputy Engineer/ AE-I and that seems to be alternative argument for considering the age relaxation. Petitioner has also given some details as to how Dr. Babasaheb Ambedkar National Association of Engineers had represented to the Government in its Irrigation Department for filling up the backlog as also for relaxation of age limit. Petitioner claims that it has been a common practice of not applying upper age limit to those candidates, who are already in Government service whenever they submit their candidature for appointments by nomination. According to petitioner, rules governing upper age limit for recruitment by nomination framed in 1986 the Maharashtra Civil Services (Provision of Upper Age Limit for Recruitment by Nomination) Rules, 1986 - henceforth referred to as 1986 Rules, for the sake of brevity) do not regulate the candidature of in-service candidates. In para 22, petitioner has referred to couple of instances wherein either relaxation/non-application of upper age limit to in-service candidates is evident in the advertisements published by MPSC for appointments by nominations. Copies of these advertisements are at Exhibits K and L. Exhibit K is an advertisement dated 21-1-1999 for appointments as Executive Engineer (Electrical), Deputy Engineer (Electrical), and five other posts and there is a special note that for employees in the service of Government of Maharashtra, there is no upper age limit although upper age limit for these posts is prescribed to be not more than 40 and 32 years respectively. Exhibit L is an advertisement dated 13-9-2007 for Deputy Engineers (Mechanical) in the Maharashtra Service of Mechanical Engineers Group-A. Although upper age limit is said to be not more than 32 years as on 1-1-2008, relaxable as per rules, there is also a note that this shall not apply to the employees of Government of Maharashtra. A reference is made to Government resolutions dated 17-8-2004 and circular dated 1-11-2003 (collectively Exhibit M). By Government resolution dated 17-8-2004, upper age limit for State Government service in Groups A to D, which was 30 and 35 years for open and reserved candidates is enhanced to 33 and 38 years respectively. By the circular, it is laid down that Government servants should not be given relaxation in the upper age limit in case they apply for appointments by nominations, but for the posts wherein experience of some years is included in the eligibility criteria, age relaxation may be allowed to the extent of upper age limit plus period of experience for eligibility. It is also added that in case of requirement of specialisation, upper age limit may be relaxed upto 45/50 years for those in Government service as officers/employees. According to petitioner, these clearly indicate the intentions of the Government to remove the upper age limit so far as Government servants are concerned. Petitioner has placed reliance upon Bombay Civil Services (Classification and Recruitment) Rules, 1939 (henceforth referred to as 1939 Rules for the sake of brevity) and more particularly Rule 7 Note (3)(b) and it is pleaded that the same does provide that condition of upper age limit shall not apply to in-service candidates. According to petitioner, these rules still hold field and have neither suffered any amendment or supersession and, therefore, there is no justification or propriety in not extending the benefit of age relaxation to in-service candidates. According to petitioner, 1939 Rules are not substituted or superseded by 1986 Rules. While challenging the view taken by learned Members of MAT, that 1986 Rules supersede 1939 Rules, petitioner has also referred to a decision of this High Court in Writ Petition No. 6643/2004 dated 26-10-2004 and it is submitted that the said writ petition was by employees of Zilla Parishad, who are not governed by State Government rules, but have their own distinct set of rules and, therefore, according to petitioner, said decision of this High Court dated 26-102004 is not applicable to the case of petitioner and similarly placed Government servants. Lastly, petitioner has pointed out that in spite of making a statement before the Court that the issue is under consideration when this Court was dealing with Writ Petition No. 7356/2004, the Government has not taken any decision on the issue and hence petitioner is required to challenge 2004 decision of MAT by present writ petition. 3. The three applications dealt with by learned Members of Maharashtra Administrative Tribunal were filed pursuant to advertisement issued on 15-92004, which prescribed that the applicants must be born between 2-1-1972 and 11-1986 for being eligible. The age limit was relaxed by 5 years only for ex-servicemen and backward categories and upto 45 years for handicapped persons. Even before MAT, it was submitted that age limit of 33 years prescribed in the advertisement was contrary to Rule 7 Note 3(B) of 1939 Rules. It was also submitted that there was heavy backlog in filling in 34% posts by nomination. Even before MAT, it was submitted that age limit of 33 years prescribed in the advertisement was contrary to Rule 7 Note 3(B) of 1939 Rules. It was also submitted that there was heavy backlog in filling in 34% posts by nomination. By placing reliance upon circular dated 1-11-2003, it was pleaded that non relaxation was against consistent policy of Government to grant age relaxation to in-service candidates. The submission was opposed on behalf of the State by pointing out that the earlier advertisements relied upon by petitioner were pertaining to posts for which advertisements were issued as per provisions of recruitment rules of the Department concerned and those were the posts wherein experience was required. The advertisement dated 15-9-2004 was for recruitment of "fresh candidates" and it was for the authority concerned to decide as to which kind of candidate it should seek. The Government resolution dated 1-11-2003 would apply for relaxation of age limit even up to 45/50 years when required experience is also one of the eligibility criteria and not when fresh candidates are required to be recruited. It appears that reliance was placed on behalf of the State on the decision of this High Court in Writ Petition No. 6643/2004 dated 26-10-2004, saying to be decision in identical matter. Apart from accepting the argument of learned Presenting Officer based upon reliance on the decision of this High Court in Writ Petition No. 6643/2004 that age relaxation can be considered only when "experience" is part of eligibility criteria, the learned Members also dealt with Rule 7 Note 3(B) of 1939 Rules in the light of 1986 Rules. The learned Members observed that circular dated 1-112003 and communication dated 9-9-2004 (Exh.U) received by applicant have no force of law and they cannot take place of the rules. According to learned Members, proviso to Rule 3 of 1986 Rules clearly indicates that where recruitment rules for any particular post, cadre or service provide the upper age limit above 28 years, then the upper age limit shall be as prescribed in the recruitment rules for the particular post, relaxable by 5 years in respect of persons belonging to backward classes. As such, the learned Members observed: "It can not be said that Rule 7 Note 3(B) of 1939 Rules still holds good and that respondents ought to adhere to the same i.e. age relaxation." 4. As such, the learned Members observed: "It can not be said that Rule 7 Note 3(B) of 1939 Rules still holds good and that respondents ought to adhere to the same i.e. age relaxation." 4. A detailed and elaborate reply is filed on behalf of respondent Nos. 1 to 4 by Shri K. R. Kulkarni, Under Secretary to Government of Maharashtra, Human Resources Department, Mantralaya, Mumbai, with suitable annexures. In spite of service, no appearance is filed on behalf of respondent No.5. Otherwise also, respondent No. 5 has no contesting interest about the issue under consideration, which is a dispute between the employees and the State regarding relaxation of age limit, thereby enabling the employees to contest for direct appointments to the higher posts. Hence, by mutual consent, the matter was heard for final disposal by making the Rule returnable forthwith. 5. Learned counsel for petitioner invited us to consider whether 1986 Rules regarding upper age limit would supersede 1939 Rules, which according to him, provide relaxation of upper age limit. Referring to preamble of both the Rules, it was submitted that preamble of 1986 Rules nowhere suggests that those are enacted in supersession of earlier 1939 Rules. According to him, if the earlier Rules are not specifically superseded by subsequent enactment, those would still govern the field. For supporting such an argument, he has placed reliance upon certain contents in the judgment of a Division Bench of this High Court reported at 1984 Mh.L.J. 998, Municipal Council, Achalpur vs. Shaikh Rahim Shaikh Rustam. The first portion, relied upon from para 5, is borrowed by earlier Division Bench from Halsbury's Law of England, Fourth Edition, Volume 44, para 966 and the same reads: "The rule is, therefore, that one provision repeals another by implication, if but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together. If it is reasonably possible so to construe the provisions as to give effect to both, that must be done...." Contents from para 8, relied upon, are also contents borrowed by learned Division Bench from Blackpool Corporation vs. Starr Estate Co. If it is reasonably possible so to construe the provisions as to give effect to both, that must be done...." Contents from para 8, relied upon, are also contents borrowed by learned Division Bench from Blackpool Corporation vs. Starr Estate Co. Ltd., (1992) AC 27 at page 34 and these observations read: "Wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously there arises a presumption that if in a subsequent statute the legislature laid down a general principle, that general principle is not to be taken as meant to rip up what the legislature had before provided for individually unless an intention to do so is specifically declared." According to learned counsel, applying these tests, 1939 Rules cannot be said to have been superseded by 1986 Rules, which prescribe age limit for appointment in the services of Government of Maharashtra. Observations from para 14 of the judgment in the matter of Chandra Prakash Tiwari and others vs. Shakuntala Shukla and others, 2002 AIR SCW 2457 are also relied upon to support the proposition that 1986 Rules have not superseded relaxation as available in 1939 Rules. This was a matter pertaining to promotion of police officers from Sub Inspector to Inspector in the State of Uttar Pradesh in 1997 for vacancies for the period between 1992 and 1996. Learned Single Judge from Allahabad High Court had negated the selections and allowed the grievance of petitioners upon recording a finding that selection had caused great injustice to senior Sub Inspectors, who had a totally unblemished service record. The appellate Bench, by a detailed judgment, affirmed the judgment of learned Single Judge, but for different set of reasons. It was held that criteria for selection "seniority subject to rejection of the unfit", as laid down in the rules, was not followed and secondly that the selection committee failed to prepare the list for each year, keeping in view the number of vacancies in that year. It was held that criteria for selection "seniority subject to rejection of the unfit", as laid down in the rules, was not followed and secondly that the selection committee failed to prepare the list for each year, keeping in view the number of vacancies in that year. The core question that fell for consideration before the Hon'ble the Supreme Court was: "Whether the selection as effected was to be made under the specific police related order of 5th November, 1965, or the basis of seniority under General D.P. Government Service (Criteria for Recruitment by Promotion) Rules, 1994, framed under Article 309 of the Constitution?" There was a conflict between the special order dated 5-11-1965 issued' under section 2 of the Police Act and the rules framed under Article 309 of the Constitution. The order prescribed "merit" to be the criteria, whereas the rules prescribed "seniority" as the criteria. We may state here itself that the circular issued was under the Police Act No.5 of 1861, a legislation much before enactment and adoption of the Constitution of India. The contents relied upon by learned counsel from para 14 are borrowed by the Hon'ble the Apex Court from its earlier judgment in the matter of A.B. Krishna and others vs. State of Karnataka and others, (1998) 3 SCC 495 and those read as under: "It is no doubt true that the rule-making authority under Article 309 of the Constitution and section 39 of the Act is the same, namely, the Government (to be precise, the Governor, under Article 309 and the Government under section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, rules can be made under the law so made by the legislature and not under Article 309. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, rules can be made under the law so made by the legislature and not under Article 309. It has also to be noticed that rules made in exercise of the rule-making power given under an Act constitute delegated or subordinate legislation, but the rules under Article 309 cannot be treated to fall in that category and, therefore, on the principle of "occupied field", the rules under Article 309 cannot supersede the rules made by the legislature." The principle laid down is that the powers under Article 309 cannot be exercised in case there is a law or rules occupying the field by authority competent to legislate under the provisions of a statute. In fact, in para 14 of the judgment, the Hon'ble the Apex Court has borrowed paras 9 to 13 from the earlier decision and so far as implied supersession is concerned, in para 10 of the earlier judgment, the basic principle, as set out in Maxwell's Interpretation of Statutes (11th Edition page 168), is reproduced. It reads : "A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so'." The Hon'ble the Apex Court set aside the concurrent judgments of Allahabad High Court by concluding observations in para 36 as under: "36. On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rule framed under Article 309 should or would also govern the existing special rules concerning the police rules. ' Admittedly, the guide-lines as contained in the Governn1ent Order dated 5-11-1965 have been under and in terms of the provisions of the Police Act. On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rule framed under Article 309 should or would also govern the existing special rules concerning the police rules. ' Admittedly, the guide-lines as contained in the Governn1ent Order dated 5-11-1965 have been under and in terms of the provisions of the Police Act. There is special conferment of power for framing of Rules dealt with more fully hereinbefore, which would prevail over any other Rule.' Since no other rule stands formulated and the Government Order of 1965 being taken as the existing rule pertaining to the subject-matter presently under consideration with recent guide-lines as noted above, its applicability cannot be doubted. Unless the General Rule specifically repeal the effectiveness of the special rules, question of the latter rule becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather an imaginary repeal. It is now a well settled principle of law for which no dilation is further required that law Courts rather loath repeal by implication." 6. Learned counsel for petitioner had taken us to preamble of both the set of rules. The 1939 Rules framed in exercise of the powers conferred by Government of India Act, 1935, and in supersession of Bombay Civil Services (Classification and Recruitment) Rules, 1929, were framed "to regulate the classification of and the methods of recruitment to the services and posts". As against this, 1986 Rules are framed by the Governor in exercise of the powers conferred by Article 309 for "regulating the upper age limit of recruitment by nomination in Class I, Class II, Class III and Class IV posts in the Maharashtra Civil Services. No doubt, as argued by Advocate Shri Deshpande, the preamble of 1986 Rules does not suggest supersession of 1939 Rules, however, we cannot avoid a feeling that the preambles clearly suggest that two sets of rules operate in two different regions. The learned Members of MAT have referred to and relied upon Rule 3 of 1986 Rules by which they felt that Rule 7 Note 3 B of 1939 Rules stood superseded. Said Rule 3 reads thus: "3. The learned Members of MAT have referred to and relied upon Rule 3 of 1986 Rules by which they felt that Rule 7 Note 3 B of 1939 Rules stood superseded. Said Rule 3 reads thus: "3. Notwithstanding anything contained in any rule, order or instmment for the time being in force relating to recruitment by nomination to any posts, cadre or service in Class-I, Class-II, Class-III and Class-IV, the upper age-limit for the purpose of recruitment by nomination to the said post, cadre or service in Class-I, Class-II, Class-III or Class-IV shall be 28 years and in respect of persons belonging to Backward Classes, it shall be 33 years: Provided that, where a recruitment rule for any particular post, cadre or service in Class-I, Class-II, Class-III or Class-IV provides the upper age limit above 28 years, then the upper age-limit shall be as prescribed in that recruitment rule for that particular post, relaxable by 5 years in respect of persons belonging to Backward Classes." On reading the text of the rule, it is evident that in fact upper age limit is enhanced to 28 and 33 years for open/reserved category candidates. Reading the text of the rule and proviso together, it can be deduced that the rule operates where the upper age limit prescribed earlier was below 28 years and the proviso protects those rules from being superseded by present rule, wherein the upper age limit already prescribed is above 28 years. In fact, we are unable to appreciate that this rule has any superseding effect over the rule relating to relaxation, if any, as contained in earlier rules. In fact, Rule 3 does not touch the aspect of relaxation at all. Hypothetically considered, if there were any set of rules earlier by which upper age limit prescribed was below 28 years, but by provision for relaxation, the same could be stretched beyond 28 years, probably, it could have been possible to say that such relaxation stands abridged by Rule 3. However, in view of proviso, even that would be a debatable proposition. While considering the preambles of two sets of rules, and even after considering Rule 3, relied upon by learned Members of MAT as superseding 1939 Rules, we feel that Rule 3 operates in a totally different region and does not overlap or supersede relaxations, if any, prescribed in the earlier set of rules. While considering the preambles of two sets of rules, and even after considering Rule 3, relied upon by learned Members of MAT as superseding 1939 Rules, we feel that Rule 3 operates in a totally different region and does not overlap or supersede relaxations, if any, prescribed in the earlier set of rules. The submission of learned counsel that 1986 Rules do not supersede 1939 Rules in express terms is, therefore, required to be upheld. For implied supersession, learned Government Pleader has not demonstrated to us as to which provisions of the two sets of rules are so inconsistent with or repugnant to each other that the two sets are incapable of standing together. 7. In fact, learned Government Pleader adopted a totally different line of argument. According to him, by Article 395 of the Constitution of India, the Government of India Act, 1935, is repealed and, therefore, rules framed thereunder stand repealed as soon as new Rules (1986) are framed by invoking powers under Article 309 of the Constitution. We are afraid, that such a submission is not acceptable. Article 395 of the Constitution reads: "395. Repeals - The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed." Thus, the Government of India Act, 1935, and all enactments either amending or supplementing the same are repealed by the force of Article 395. However, Article 372 (1) reads as under: "372. Continuance in force of existing laws and their adaptation - (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." From the non obstante clause with which Article 372(1) begins and by specific reference to Article 395, it is not possible to accede to the submission of learned Government Pleader that because the Government of India Act, 1935, is repealed, the rules framed thereunder can be said to have become ineffective. The rules framed at the time when the then Government was competent and empowered to frame those have statutory force and all the laws in force in the territory of India immediately before the commencement of the Constitution are saved by Article 372(1) and are to continue to be in force until altered or repealed or amended by competent legislature or other competent authority, of course subject to other provisions of the Constitution. Learned Government Pleader has not placed reliance upon any other provisions of the Constitution indicating that subordinate legislations enacted either under the Government of India Act, 1935, or the Indian Independence Act, 1947, which are repealed by Article 395, have stood repealed. Considering the principles of repeal, we have found that 1986. Rules have not repealed 1939 Rules in express terms. In fact, we have found that the two sets of rules operate in different fields. We have, therefore, accepted the submission of Advocate Shri Deshpande that 1939 Rules are not repealed by 1986 Rules in express words. 8. Learned Government Pleader has advanced an alternative submission that neither in the Rules of 1939 nor in the Rules of 1986, there is any provision relaxing the age limit for in-service candidates, so as to enable them to compete for appointment by nomination in the higher post in the hierarchy of the cadre along with and as applicants for appointment by nomination. It was submitted by learned Government Pleader that unless such relaxation is provided in the rules, it is not possible for the authorities to do so in the advertisement and in the recruitment process. Having gone through the two sets of rules, eventually, this submission of learned Government Pleader has considerable force. Rules 1986 are for regulating the upper age limit for recruitment by nominations to all classes of Maharashtra Civil Services and within this brief set of six rules, there is no provision indicating any relaxation to in-service candidates much less a general relaxation to all in-service candidates, as desired by petitioner. So far as 1939 Rules are concerned, which we have held, are not superseded. So far as 1939 Rules are concerned, which we have held, are not superseded. Emphasis was laid on Note 3 B to Rule 7, which reads thus; "Note 3 B : The concession granted under these rules to Government servants that the age limit prescribed therein shall not be applicable to them shall be available only to the following classes of Government servants, namely: (1) Permanent Government Servants (2) Temporary Government servants whether officiating in (i) substantive, (ii) deputation or (iii) leave vacancies, if they are in continuous service for not less than six months on the date of their applications." This is also a set of 12 rules and relaxation, if any, regarding the age limit is contained only in Notes 1 to 3 preceding the Note 3 B relied upon. Note 1 grants relaxation by 3 years for educationally intermediate and backward classes including Muhammadans. But even this relaxation is not without recording in writing the special reasons in each case. Note 2 in fact prescribes that rule about age limit should be strictly observed and over aged candidates should not be appointed even to temporary vacancies. The relaxation is worded, thus: "If in any case it is considered essential to appoint a candidate who has passed the age limit the previous approval of Government to such appointment should be obtained stating fully the reasons for making the appointment." Thus, it is evident that appointment of a candidate, who has passed the age limit, is exceptional, for the reasons to be recorded and also by obtaining approval of the Government as is evident from latter part of the said note. Having gone through Notes 3 and 3 A, we have failed to find any age relaxation for appointment by nomination in the same, much less a blanket relaxation by saying that the upper age limit shall not apply to in-service candidates in case they desire to compete for appointment by nomination to the higher post in the same cadre. Rule 7 reads: "7. Government shall prescribe the qualifications in respect of age and education which shall be required to be possessed by candidates for admission to the Provincial and subordinate service. Rule 7 reads: "7. Government shall prescribe the qualifications in respect of age and education which shall be required to be possessed by candidates for admission to the Provincial and subordinate service. The qualification so far prescribed are stated in Appendices C and D." Since Rule 7 empowers the Government to prescribe the qualifications i.e. age and education, giving a liberal construction to the words "these rules" from Note B as also applicable to the rules framed by the Government, we have also referred to Appendix C. The rules regarding Bombay Service of Engineers are contained in section V titled as "Provincial Services under the control of Public Works Department" (Clause 53 of the Appendix). The Bombay Service of Engineers are classified into Class I and Class I and for both, age limit for appointment by nomination is prescribed to be not less than 21 and not more than 24 years, upper age limit relaxable by 3 years for Muslim candidates and candidates belonging to intermediate and backward classes. These rules prescribing these age limits will have to be termed as superseded or rather amended by 1986 Rules, which now prescribe upper age limit to be 28 and 33 years for open and backward classes. However, 1939 Rules also do not indicate that in-service candidates will not be governed by the upper age limit. The submission of learned Government Pleader that either in the Rules of 1939 or Rules of 1986, there is no provision for which upper age limit can be disregarded so far as in-service candidates desirous of competing for appointment by nomination to higher post in the cadre deserves to be upheld. In the absence of any rule, it must be said that petitioner has no statutory right, which can be enforced by directions of the Court. 9. Reliance was placed upon Government resolution/circular (collectively Exhibit M). By Government resolution dated 17-8-2004 (paper book page 40), upper age limit 30/35 years for open / reserved categories is enhanced to 33/38 years. By Government circular dated 1-11-2003 (paper book page 41), the relaxation of upper age limit is indicated, but by saying that only for the posts for which experience of certain number of years is prescribed as eligibility criteria, then upper age limit can be relaxed to that extent for Government officers/employees. By Government circular dated 1-11-2003 (paper book page 41), the relaxation of upper age limit is indicated, but by saying that only for the posts for which experience of certain number of years is prescribed as eligibility criteria, then upper age limit can be relaxed to that extent for Government officers/employees. There is also advice that according to specialisation and necessity, the age limit may also be relaxed upto 45/50 years for officers in the Government service and employees. The resolution and circular certainly indicate the mood of the State Government. Eventually, the writ petition is not based on the allegation that Government circular dated 1-11-2003 is discriminatory, because it permits age relaxation to the extent of number of years of experience required as eligibility criteria, but it does not relax the upper age limit where experience is not the eligibility criteria and hence we cannot consider whether the said condition imposed in the circular dated 1-11-2003 is discriminatory. The communications at Exhibit M, therefore, support the cause of petitioner only to indicate that Government is in a mood to relax the upper age limit since it has enhanced the same from time to time and it is also in a mood to relax the age limit upto 45/50 years in case of specialisation and necessity for the same. However, in the absence of existing statutory right, it may not be possible for us to direct the Government to issue directions of relaxing upper age limit for all in-service candidates for all appointments by direct nomination. This may be indirect legislation by the Court, because by that, we will be inducting within the service rules prescribing qualification in terms of age, the views of the Court. Petitioner not having any statutory right of age relaxation, it may not be possible. for us to direct respondent No. 5 - MPSC to relax the same for examinations to be held in February 2008 pursuant to advertisement dated 24-10-2007, either for petitioner or for all in-service candidates placed similarly as petitioner. The writ petition, therefore, would fail and Rule will have to be discharged. 10. Reliance was also placed by learned counsel for petitioner on the observations of the Supreme Court in the matter of Indravadan H Shah vs. State of Gujarat and another, AIR 1986 SC 1035 . The writ petition, therefore, would fail and Rule will have to be discharged. 10. Reliance was also placed by learned counsel for petitioner on the observations of the Supreme Court in the matter of Indravadan H Shah vs. State of Gujarat and another, AIR 1986 SC 1035 . This was a case regarding age restriction for promotion to the post of Assistant Judge in the judicial service of Gujarat State and, therefore, the observations in the said judgment and more particularly those from para 13, which were relied upon by learned counsel for petitioner, are of no assistance to the cause of petitioner. Judgment in the matter of State of Karnataka and others vs. C. Lalitha, (2006) 2 see 747 was relied upon for a limited purpose. Advocate Shri Deshpande, in all fairness, submitted that in case this Court is inclined to grant age relaxation to petitioner by allowing the writ petition, he urged for the benefit of the same to all in-service candidates similarly placed by suitable directions to respondent No.5 - MPSC. For the purpose, he had placed reliance upon headnote B of the reported matter and the views expressed in para 29, which read: "Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the Court, that would not mean that persons similarly situated should be treated differently." 11. No doubt, with the conclusion drawn by us, as in paragraphs above, petitioner would not be entitled to any relief at present, but we feel to record our views on certain issues those have been placed before us, may be as our suggestions to respondent Nos. 1 to 4 or rather to respondent No.1, with emphasis. On reference to Exhibit A, it is evident that although quota of 34% is prescribed to be filled in by nomination and through MPSC by Government resolution dated 19-12-1970, from 1971 onwards till 2000, as per details furnished by petitioner, there had been no examinations in the years 1975 to 1979; 1986 to 1988; 1990-91; 1994 to 1997 and 2000. Out of 30 years, there had been no recruitment for 15 years. If figures as given by petitioner are accurate, it is evident that there has been no sincere attempt to make up all the vacancies. Out of 30 years, there had been no recruitment for 15 years. If figures as given by petitioner are accurate, it is evident that there has been no sincere attempt to make up all the vacancies. The maximum number of appointments had been in 1998 of 76 persons when there were 699 vacancies. Otherwise, there is a pitiable picture that when there were more than 800 vacancies, there were hardly 10 to 40 appointments, which is less than 5% of the total vacancies. This does not speak well either about the efficiency of the administration or about its capacity of good governance. The argument of petitioner certainly has substance that if there is a cap/upper age limit for in-service candidates to contest for appointment by nomination, the respondents ought to be vigilant to fill the vacancies either periodically or as and when the number of vacancies is alarming. In fact, the mode of periodical recruitment would be more advisable since that would eliminate the possibility of decision to hold recruitment being arbitrary. There is no reason why recruitment should be ordered only when number of vacancies is 101, but not when number of vacancies is 99 and that is why we would favour a decision to go for recruitment by nomination, periodically. The vacancies available for being filled in by nomination may be considered to be filled in by periodical recruitment, may be alternate year by calculating the number of vacancies as may be available in that year plus 10% wait list for the eventuality of a selected candidate not joining. This will ensure that the cadre works with full strength. If this is not done, the effect with which petitioner feels aggrieved i.e. denial of opportunities or atleast reduction in the opportunities for in-service candidates to contest for appointment by nomination takes place. Let us take a hypothetical case. An engineering graduate enters the service at the lowest ladder in the hierarchy of engineering services of the State, may be at the age of 25 years. He climbs the ladder by couple of ranks as in the case of petitioner. By the time, he finds himself to be aged 35 years and then not in a position to compete with the candidates, who seek appointment to the post by nomination, because of upper age limit. He climbs the ladder by couple of ranks as in the case of petitioner. By the time, he finds himself to be aged 35 years and then not in a position to compete with the candidates, who seek appointment to the post by nomination, because of upper age limit. No doubt, an argument may be advanced that in-service candidates have their own opportunity for appointment by promotion and it is for the employer to decide whether he needs fresh blood or an experienced old hand. We are unable to appreciate and would certainly not agree with the philosophy that fresh blood is always a better option than experienced hand in the department. Unless the experienced hand in the department has become a dead wood so far as efficiency is concerned or has started tending towards being a dead wood, and in any case, such a candidate would not score over fresh blood at the competitive examination for appointment by nomination, there is no reason to treat the proposition as gospel truth that fresh blood is always a better option than experienced hand from the department. The conclusion will have to be drawn by considering each case on its own merits, whether it be an appointee fresh graduate from the college or a departmental promotee having served for few years. Such an argument may be advanced in order to justify the Government circular dated 1-11-2003. It may be submitted that wherever experience is required, the State has been generous to allow age relaxation to in-service candidates equivalent to the number of years of which experience is expected as eligibility criteria. We are also unable to appreciate as to which may be the posts where experience may not be required at all or where experience will be detrimental to the efficiency. In fact, experience must always be treated as additional qualification. We are of a considered view that there may not be a post under the Sun for which experience would prove disqualification. We may hasten to add the caution that with the passage of years in the department, if the person has become or proceeding towards becoming a dead wood, such a candidate would always get weeded out at the competitive examination or further process of elimination by interviews during which, we believe, his departmental record would be under consideration. We may hasten to add the caution that with the passage of years in the department, if the person has become or proceeding towards becoming a dead wood, such a candidate would always get weeded out at the competitive examination or further process of elimination by interviews during which, we believe, his departmental record would be under consideration. Any remarks regarding his inefficiency, developed bad habits such as frequently remaining' absent or inviting complaints, can always be considered at that stage of elimination, even if he scores over a direct nominee at the written examination/screening test. An in-service candidate certainly cannot take an exception, if he is allowed to compete with direct applicants by age relaxation,' and is being considered for a post which otherwise amounts for him promotion if he is to travel departmentally, in department considering his performance during the service rendered till then. In fact, Government has shown a trend of raising upper age limits in the past. Upper age limit for Government service was 25/30 years for open/reserved candidates. With the passage of time, it was raised to 28/33 years respectively and thereafter to 30/35 years and now by Government resolution dated 28-101992 issued by General Administration Department, it is 33/38 years. The Government, therefore, principally admits that advance age does not necessarily make a man "a dead wood". With the passage of time, Government is willing to accept an open candidate, aged 33 years and a reserved candidate aged 38 years for first appointment. The submission of petitioner that Government is in a mood and intends to relax the age is, thus, required to be considered as acceptable. Advertisements at Exhibits K and L could be easily distinguished by learned Government Pleader by saying that those were posts of engineers for electrical division and mechanical division. That in those advertisements, practical experience was part of eligibility criteria. We have already commented about age relaxation only when experience is part of eligibility criteria and denial of age relaxation otherwise, in the paragraph hereinabove. But we may add that whether Government will be able to answer an argument if a question is raised that whether electrical and mechanical are the engineering divisions where experience is required and a must, and civil branch of engineering does not require any experience? Can a fresh engineering graduate be considered for being appointed directly as Chief Engineer or Superintending Engineer? Can a fresh engineering graduate be considered for being appointed directly as Chief Engineer or Superintending Engineer? (highest two posts in the hierarchy of engineering service and permitted to be superior of all other engineering graduates, who have passed their graduation, may be 20 years before the fresh graduate and have also gained experience by working for 20 years. The philosophy that it is the choice of employer, whether to have fresh blood or experienced hand, is attractive, but we are unable to accede to an argument that fresh blood is always a better option than experienced hand, atleast for some posts. Whenever there are more than one sources for appointment and more particularly when there is appointment by nomination, directly to the posts of higher level in the hierarchy of the cadre, there have arisen disputes and litigation between the candidates from different sources, regarding seniority and almost all the times department is also dragged into the legal battle. The department or the State will not be able to exonerate itself by saying that always the employees are the cause for litigation. As stated earlier, by not being punctual in filling the vacancies timely, available for each source and not working the roster properly, regularly and in a disciplined manner, the department or the State ignites and fuels the fire of such disputes between the employees within the department. It may not be out of place to say that the departments have not been regular in timely conducting the process of filling up the posts by promotion. Apart from the heart burning and frustration suffered by the employees, this has an effect of creating ill feelings between the groups of employees from respective sources, attitude of non-cooperation when they are clubbed together and thereby causing adverse effect on the efficiency of the department. We do not think, although as a formal party, the Government can litigate free of cost when such disputes between employees erupt. Coming back to the illustration, which we have taken, would be the best case to demonstrate as to how there can be a spark for heart burning, ill feelings and attitude of non-co-operation. Petitioner at the age of 43 years is now stranded as Assistant Engineer Grade I. A Deputy Engineer, by direct nomination, a fresh engineering graduate, may take over as his boss at the age of 26 years. Petitioner at the age of 43 years is now stranded as Assistant Engineer Grade I. A Deputy Engineer, by direct nomination, a fresh engineering graduate, may take over as his boss at the age of 26 years. And from whom the new boss will learn the trade secrets once he resumes as Deputy Engineer? We believe, from none else, but his first subordinate Assistant Engineer - I. We do not need better argument than this illustration to demonstrate the adverse effect that departmental candidates are required to suffer, if they are not allowed to compete by age relaxation, although they are good enough to compete. (The bad element would eliminate itself at the screening test or interview.). For all above reasons, we, therefore, feel that there is a case with sufficient and good reasons for the State to consider the issue of complete age relaxation favourably for in-service candidates. If this is not done, there shall continue instances where fresh graduates appointed by nomination shall be superiors of educationally equally qualified people having experience of number of years. A copy of the order passed by this Court in Writ Petition No. 7356/2004 is available for reference at paper book page 106. The Division Bench recorded following order while disposing of the said writ petition: "By this petition, the petitioner seeks mandamus directing respondent State to increase the upper age limit for employees of the State in the matter of competing in the Maharashtra Public Service Commission examinations held for further recruitments. This question is under consideration of Government and the committee has been duly appointed in such circumstances. We do not feel it necessary to interfere. The petition disposed of." It was not submission of learned Government Pleader that committee has already taken a decision, may be against relaxation of age limit. If it has taken a negative decision, we feel, there exist strong reasons, as above, to reconsider the same. We, therefore, believe that Government still has to consider the issue and, therefore, we have expressed our views, as above, which the Government may consider as our suggestions, if not directions. We feel that the departmental candidates claiming age relaxation for competing for appointment by nomination to a post higher in the same department seem to have good reasons for removing the cap of upper age limit in its totality. We feel that the departmental candidates claiming age relaxation for competing for appointment by nomination to a post higher in the same department seem to have good reasons for removing the cap of upper age limit in its totality. The issue may be considered not for any particular department or particular posts, but for all services ofMaharashtra State Government wherever there are rules for appointment by direct nomination at a higher location in the ladder of the departmental hierarchy. This would be necessary in view of observations of the Hon'ble the Supreme Court in the matter of C. Lalitha (supra). We, therefore, direct learned Government Pleader to place a copy of this judgment before the Chief Secretary of the State for considering the views and suggestions, discussed hereinabove, while considering age relaxation by not only petitioner but by in-service candidates of any department in the State Government service for relaxation/removal of upper age limit, if any, prescribed by the rules. We are aware that such an exercise may require amendment to the• Service Rules of all the departments, in case there are different sets of rules for different departments. But we are of a firm view that the age relaxation if is to be made available, will have to be made available to in-service candidates of all the departments of the State Government service and not only to few departments, which would amount to pick and choose or discrimination. 12. The writ petition is dismissed. Rule is discharged. Petition dismissed.