JUDGMENT Hon’ble Sudhir Agarwal, J.—Since both these matters involve common questions of law and facts, therefore, have been heard together with the consent of learned counsels for the parties and are being decided by this common judgement. 2. The pleadings are complete hence as requested and agreed by learned counsel for the parties, this writ petition is being decided finally under the Rules of the Court at this stage. 3. Heard Sri S.N. Pandey, learned counsel for the petitioner, learned Standing Counsel for respondents No. 1 and 2 and Sri Anoop Trivedi, learned counsel representing for respondents No. 7 to 12. 4. Three petitioners in Writ Petition No. 631 of 2004 (hereinafter referred to as the first petition) namely Om Prakash, Jai Singh and Soran Singh and one petitioner in Writ Petition No. 50140 of 2003 (hereinafter referred to as the second petition) namely Satya Pal Singh @ Satpal were working on the post of Sinch Pal posted under the Executive Engineer, Meerut Division Ganga Canal Meerut. They are aggrieved by the order dated 6.10.2003, (Annexure No. 8 to the first petition) whereby the respondents No. 7 to 12 in the first petition have been promoted to the post of Sinch Paryavekshak in the pay scale of Rs. 4000-6000 in promotion quota of 75% meant for the persons working as Sinch Pal. They have prayed for issuance of writ of certiorari for quashing the aforesaid order of promotion dated 6.10.2003 and to issue a writ of mandamus commanding to the respondents to promote the petitioners strictly in accordance with rules. 5. It is not in dispute that the promotion to the post of Sinch Paryavekshak which is earlier known as irrigation Amins, is governed by Sinchai Vibhag Ka Amin, Sewa Ke Niyam, 1954 (hereinafter referred as 1954 Rules). A copy of the 1954 Rules has been placed on record as Annexure No. 1 to the supplementary affidavit dated 10.11.2003 in second petition. 6. In the seniority list of Sinch Pals, Meerut Division, Ganga Canal Meerut, the petitioners of first petition are at serial No. 9, 15 and 29 while the name of the second petitioner is not shown in the said seniority list dated 5.10.1999 (Annexure No. 2 to the second petition) but has been shown at serial No. 50 in the seniority list dated 26th March, 1995 (Annexure No. 1 to the second petition). 7. 7. The names of all the respondents are below the petitioners except that of Nanak Chand, respondent No. 10 who is senior to the petitioner of the second petition but junior to the petitioners of the first writ petition. All these petitioners have been denied promotion on the ground that they were over 45 years of age when the process of selection was initiated in the year 2002. The respondents have clearly stated in paragraph 19 of their counter affidavit in the second petition that the selection committee has considered and promoted only those candidates who were below 45 years of age as per the requirement of Rules. Regarding the petitioner of second petition, it has further been said by the respondents that since he was transferred to Irrigation Construction Division, Ghaziabad, in the year 2003 where he joined on 15.12.2003 pursuant to the order dated 17th June, 1998 and, therefore, he was not shown in the seniority list of Meerut Division prepared in 1999 and was not entitled to be considered for promotion in the said division. 8. The questions up for consideration before this Court are : (a) Whether the petitioners have rightly been denied promotion on the ground that they were over age, being above 45 years of age. (b) Whether non consideration of the petitioner of second petition on the ground that he was transferred to Ghaziabad pursuant to transfer order dated 7.6.1998 is valid, just and in accordance with law. 9. Whether criteria of merit as provided under Rule 17 of 1954 Rules has already been applied by the respondents or the selection ought to have been made on the criteria of seniority subject to rejection of unfit as provided under “Uttar Pradesh Sarkari Sewak (Paddonnati Dwara Bharti Ke Liye Mandand) Niyamawali, 1994? 10. Learned Standing Counsel placed reliance on Rule 8(2) of 1954 Rules which provides that a person who is not below 45 years on the first January of the next year in which selection is made shall not be selected for promotion under the said rules. 10. Learned Standing Counsel placed reliance on Rule 8(2) of 1954 Rules which provides that a person who is not below 45 years on the first January of the next year in which selection is made shall not be selected for promotion under the said rules. It is reproduced below : 8&vkq&¼1½ bl lsok ds fu;e 5 ¼d½ ds v/khu lh/ks HkrhZ fd;s tkus okys mEehnokj dh vk;q pquko ds o"kZ ds vxys o"kZ dk igyh tuojh dks 18 o"kZ dh vkSj 22 o"kZ ls de gksuh pkfg;sA fdUrq izfrcU/k ;g gS fd ;fn dksbZ mEehnokj fdlh ,sls o"kZ esa] ftlesa dksbZ pquko u gqvk gks] vk;q ds fopkj ls pquko esa lfEefyr gksus dk vf/kdkjh gksrk rks ;g vk;q dh n`f"V ls vxys pquko esa lfEefyr gksus dk vf/kdkjh le>k tk;sxA ¼2½ fu;e 5 ¼[k½ ds micU/kks ds v/khu dksbZ Hkh O;fDr bl lsok esa fu;qDr u fd;k tk;sxk] tc rd fd mldh vk;q pquko ds o"kZ ds vxys o"kZ dh igyh tuojh dks 45 o"kZ ls de u gksA 11. The effect of Rule 8(2) of 1954 Rules, therefore, is if selection is being made in the year 2002, the persons who are going to attain the age of 45 years on 1.1.2003 would not be eligible for promotion. In the counter affidavit filed on behalf of respondent No. 7, 8, 10, 12 it is said that the eligibility pertaining to age has been stressed upon by authorities of irrigation department from time and again and it could not have been ignored. They have also filed copies of the letter dated 2.12.1996 of the Engineer in Chief, Irrigation Department, U.P. stating that persons above 45 years of age as on first January of next year of the year of selection shall not be eligible for promotion to the post of Sinch Paryavekshak. The field officers were directed to ensure the above requirement of the rules. To the similar effect is the letter dated 18.9.2003 issued by the Chief Engineer, Irrigation Department, U.P. 12. In the rejoinder affidavit the petitioners have placed on record as Annexure No. 1, a copy of the letter dated 27.2.1997 issued by the Engineer-in-Chief cancelling order dated 2.12.1996 with respect to promotion of Sinch Paryavekshak. To the similar effect is the letter dated 18.9.2003 issued by the Chief Engineer, Irrigation Department, U.P. 12. In the rejoinder affidavit the petitioners have placed on record as Annexure No. 1, a copy of the letter dated 27.2.1997 issued by the Engineer-in-Chief cancelling order dated 2.12.1996 with respect to promotion of Sinch Paryavekshak. Reliance is also placed to an interim order dated 27.9.2004 passed by this Court in Writ Petition No. 5593 (S/S) of 2004 wherein this Court has taken note of a notification dated 16.12.1960 whereby sub-rule (2) of Rule 8 of 1954 Rules is said to have been repealed. 13. Sri S. N. Pandey, petitioners’ counsel submitted that in any case, the U.P. Public Services (Removal of Age Limit for Promotion) Rules, 1975 (hereinafter referred as 1975 Rules) have done away the requirement of upper age limit in respect of promotion matters by rescinding the rules or orders in this respect. The above 1975 Rules were published in U.P. Gazette dated 27.9.1975 and it would be appropriate to reproduce Rule 2 & 3 thereof as under : 2. Upper age-limit not to preclude promotion.—No person otherwise eligible for promotion in substantive, temporary or officiating vacancies for any service or post under the State Government shall be precluded from being so promoted on account merely of any upper age limit. 3. Rescission.—The Uttar Pradesh Public Services (Age-limit for Promotion) (Amendment) Rules, 1970, and all other rules and orders imposing any upper age-limit for promotion to any service or post referred to in rule 2 are hereby rescinded. 14. Despite of full opportunity given to the respondents’ counsel they could not show that 1975 Rules are not applicable. There is no doubt that Rule 8(2) of Rules 1954 provides upper age limit for promotion to the post of Sinch Paryavekshak as 45 years but the said rule has been rescinded vide Rule 3 of 1975 Rules and by virtue of rule 2 of 1975 Rules no person who is eligible for promotion in service under the State Government be precluded from being so promoted merely on account of any upper age limit. It confers a right upon the Government Servant to claim promotion on a higher post despite of crossing the upper age limit as provided in Service Rules framed before enforcement of 1975 Rules. It confers a right upon the Government Servant to claim promotion on a higher post despite of crossing the upper age limit as provided in Service Rules framed before enforcement of 1975 Rules. If one is otherwise suitable and eligible, he cannot be deprived of his promotion only on the ground of upper age limit since the effect of 1975 Rules would be to rescind the rules or part thereof pertaining to upper age limit as is evident from Rule 3 of 1975 Rules. The effect of rescission is as if sub-rule 2 of rule 8 of 1954 Rules cease to exist on and after 27.9.1975 since 1975 Rules were published and came into force on the said date. The nature of the provisions as referred under Rule 3 of 1975 Rules stood rescinded and could not have been acted upon after the enforcement of 1975 Rules in any manner. 15. Though the counsel for the petitioner also referred to the interim order dated 27.9.2004 passed by this Hon’ble Court in Writ Petition No. 5593 (S/S) of 2004 and further submits that it appears that by notification dated 16.12.1960 even sub rule 2 of rule 8 of 1954 Rules already rescinded as long back as in 1960 and its existence thereafter could stood not be shown by the respondents before the Court when interim order was passed but since the notification of 1960 has not been placed before this Court for its perusal, I am not taking note of the said notification for the purpose of deciding these two matters. In my view the selection being subsequent to 1975 Rules and the effect of 1975 Rules is also same i.e. rescission of rule 8(2) to the extent it provides for upper age limit in promotion, this Court is deciding the matter accordingly taking into consideration only 1975 rules. 16. In my view the selection being subsequent to 1975 Rules and the effect of 1975 Rules is also same i.e. rescission of rule 8(2) to the extent it provides for upper age limit in promotion, this Court is deciding the matter accordingly taking into consideration only 1975 rules. 16. The petitioners despite of their seniority have been denied promotion only on the ground that they were above 45 years of age as on 1.1.2003, since the selection was made in the year 2002 and for that purpose the learned Standing Counsel placed reliance of Rules 8(2) which as I have discussed in view of 1975 Rules stood rescind w.e.f. 27.9.1975 and have no doubt in holding that the respondents have erred in law by denying promotion to the petitioners only on the ground of being over age, though they could not have been deprived of such promotion. The first issue is decided accordingly. 17. Now coming to the second issue which is being considered in respect to the petitioner of the second petition, I find that though the petitioner Satya Pal Singh was transferred to Ghaziabad by order dated 17.6.1998, Annexure CA-1 but the aforesaid transfer order came to an end pursuant to order dated 1.12.2000 whereby the petitioner of the second petition was again transferred under Meerut Khand as is evident from Annexure RA-1 to the rejoinder affidavit. The charge certificate shows that the petitioner of the second petition took over charge in the said Khand on 15.12.2000. At the time of selection in 2002 he was posted in Meerut Khand. He was thus entitled to be considered for promotion in the said division and merely because subsequently i.e. in December 2003 he was transferred to Ghaziabad again. The same would not justify his non promotion. The selection was made in 2002 and promotion letter was issued on 6.10.2003 i.e. before the transfer of petitioner of second petition to Ghaziabad where according to official reports he joined on 15.12.2003. The non promotion of the petitioner of second petition, therefore, on this ground also is held illegal. 18. Now I come to the last issue. The selection was made in 2002 and promotion letter was issued on 6.10.2003 i.e. before the transfer of petitioner of second petition to Ghaziabad where according to official reports he joined on 15.12.2003. The non promotion of the petitioner of second petition, therefore, on this ground also is held illegal. 18. Now I come to the last issue. The counsel for the petitioner submitted that under Rule 17 of 1954 Rules though the criteria for selection for promotion is merit but in view of criteria prescribed in Rule 4 of 1994 Rules, the selection ought to have been made on the criteria of seniority subject to rejection of unfit since the above rules have overriding effect over any other rules providing otherwise. He referred to para 9 of the counter affidavit filed on behalf of respondent No. 1, 2 and 3 in the first petition and contended that it is evident that criteria for selection followed by the respondents is “merit and seniority” though under 1994 Rules it ought to have been “seniority subject to rejection of unfit” and not “merit” and thus also the entire selection is vitiated in law. 19. In my view, this submission is misconceived and has to be rejected Rule 1 and 4 of 1994 Rules provides for application of the said rules and reads as under : 1. Short title, commencement and application.—(1) These rules may be called the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994. (2) They shall come into force at once. (3) They shall apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the principles to be followed in making promotions under the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954, as amended from time to time. 4. Criterion for recruitment by promotion.—Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs. 4. Criterion for recruitment by promotion.—Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs. 18,300 or above shall be made on the basis of merit, and to the rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-Gazetted post to a Gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit. 20. The application of above rules with reference to Rule 1(3) of 1994 Rules read with U.P. Public Service Commission (Limitation of Function) Regulation 1954 has been considered by a Division Bench of this Court (in which I was also a member) in Virendra Kumar Mishra v. State of U.P. and others, 2008 (2) ESC 1028 and it has been held therein that 1994 Rules are not applicable to services which are not within the purview of U.P. Public Service Commission. 21. Since the post of Sinch Paryavekshak is admittedly not a post which is within the purview of U.P. Public Service Commission, 1994 Rules obviously have no application to this service and have the promotion to the post of Sinch Paryavekshak is to be made in accordance with 1954 Rules. It cannot be said that the criteria adopted by the respondents for making promotion to the post of Sinch Paryavekshak is incorrect and this issue is also answered accordingly. 22. Though on behalf of private respondents a preliminary objection for maintainability of this writ petition on the ground of alternative remedy has been raised but is not pressed seriously. However, It may be pointed out that in the counter affidavit it is pleaded that petitioners have an alternative remedy before the Administrative Tribunal under Administrative Tribunal Act, 1985 but after going through the provisions of the said Act and noticing the fact that Tribunal created therein is only with respect to the employees of the Central Government and certain statutory bodies, Companies and Corporations of the Central Government and not for the State Government employees, the said objection has been given up. The objection was, however, during the course of argument was clarified that the petitioners being government servant have a statutory alternative remedy by filing claim petition under Section 4 of the U.P. Public Service Tribunal Act, 1976. Considering the fact that the pleadings are complete in this case, the issue involved is purely legal i.e. the effect of 1975 Rules and this matter is pending before this Court for the last 5 years, I am not inclined to non-suit the petitioners on the ground of alternative remedy so as to prolong the dispute which can be decided at this stage without wasting any further time either of this Court or of any other adjudicatory forum, I, therefore, reject the preliminary objection. 23. In the result, the writ petitions succeed and is allowed. The impugned order of promotion of respondents No. 7 to 12 is hereby quashed. The respondents are directed to hold fresh selection in accordance with law and in the light of the observations made above, within a period of 3 months from the date of production of a certified copy of this order. ————