Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 1299 (KAR)

Union of India v. P. Boregowda

2010-12-24

B.V.NAGARATHNA, V.G.SABHAHIT

body2010
Judgment :- 1. These writ petition arise out of and are filled against the order passed by the central administrative tribunal, Bangalore bench (hereinafter called tribunal’)feeling aggrieved by the order dated 8-12-2009 in O.A.NOS.262/2007, 416/2007, 447/2007 & wherein the tribunal has allowed the applications by holding that rule 5(3) of the Indian Administrative Services (Appointment by promotion) Regulation, (hereinafter called the ‘Promotion Regulation’) insofar as it prohibits the committee insofar as it prohibits the committee from considering the case of the members of the state civil service who have attained the age of 54 years on the first day of January of the year in the select list to be prepared, as arbitrary and quashed rule 5(3) of the said promotion regulation and directed the applicant in O.A.NO.262/2007 to be included in the consideration zone for promotion to IAS against the vacancies available on 1-1-2007. 2. W.P.Nos.1083-6/2010 is filed by the union of India –respondent in O.A.Nos.262/2007, 416/2007, 447/2007 and 88/2008 seeking for quashing of the order passed by the tribunal in the said application. 3. W.P.Nos.38709-710,32-34/2010& 215-22/2010 are filed by respondent No.13 to 16 in O.A.No.262/2007 and the persons who are not parties before the tribunal seeking for quashing of the order passed by the tribunal dated 30-11-2010. 4. W.P.Nos.38709-710/2010&970-975/2010 are filed by respondent No.13 to 16 in O.A.No.262/2007 and the persons who are not parties before the Tribunal for quashing of order passed by the tribunal dated 30-11-2010. 5. W.P.Nos.1527-34/2010 are filed by the persons who are not parties before the Tribunal seeking for quashing of the order passed by the Tribunal by the Tribunal dated 30-11-2009. 6. W.P.Nos.38702-705/2009 & 38751-758/2009 are filed by respondent Nos. 5,6,7 and 10 in O.A. No. 262/2007 and the persons who were not parties before the Tribunal seeking for quashing of the order passed b the Tribunal dated 30-11-2010. 7. W.P.No.38138/2009 is filed by respondent No.8 in O.A.262/2007 seeking for quashing of the order of the Tribunal dated 30-11-2009. 8. Having regard to the prayer sought in the writ petitions and as all these petitions involve common question of fact and law, they are disposed of by this common order. 9. 7. W.P.No.38138/2009 is filed by respondent No.8 in O.A.262/2007 seeking for quashing of the order of the Tribunal dated 30-11-2009. 8. Having regard to the prayer sought in the writ petitions and as all these petitions involve common question of fact and law, they are disposed of by this common order. 9. The material facts of the case leading up to filing of these writ petitions are as follows with reference to the facts as averred by the applicants in O.A.No.262/2007 before the Tribunal: O.A.No.262/2007 was filed before the Tribunal by the applicants-1 to 3 seeking for the following reliefs: (i) Issue an appropriate writ, direction or order declaring Regulation 5 (3) of Indian Administrative Services (Appointment by promotion) Regulations, 1955, enacted in pursuance of sub-Rule (1) of Rule 8 of Indian Administrative Services (Recruitment) Rules, 1954, so far as it excludes the members of State Civil Services who have attained the age of 54 years from the zone of consideration for their promotion in IAS, as unconstitutional and violative of Article 14, 16 and 51-A of the Constitution of India; (ii) Issued an appropriate writ in the nature of certiorari or any other writ, direction or order quashing the list dated, nil vide Annexure A-4, prepared and circulated by State of Karnataka of eligible candidates by excluding petitioner to be considered for their promotion from Karnataka Administrative Service to Indian Administrative Service as the same is violative of Article 14, 16 of the Constitution of India: (iii) Issue an appropriate writ in the nature of mandamus or any other appropriate writ, direction order commanding respondents to include the name of petitioner in the list of eligible candidate to be considered for promotion from Karnataka Administrative service “6” vacancies available in the Year 2006-2007: (iv) Quash the letter dated. 16.03.2007 made in No.DPAR616 SAS 2006 (Part) issued by the 3rd respondent vide Annexure A-6. (v) Pass such other or further order/s as this Honorable Court may deem fit and proper in the interest of Justice. 16.03.2007 made in No.DPAR616 SAS 2006 (Part) issued by the 3rd respondent vide Annexure A-6. (v) Pass such other or further order/s as this Honorable Court may deem fit and proper in the interest of Justice. It is averred in the application that the applicants have sought for declaration that Rule 5 (3) of the Promotion Regulation enacted in pursuance of the Sub-rule (1) of Rule 8 of Indian Administrative Services (Recruitment) Rules, 1954 insofar as it excludes the members of the State Civil Services who have attained the age of 54 year from the zone of consideration for their promotion in IAD, as unconstitutional and violative of Articles 14, 16 & 51 A of the Constitution of India. It is further averred in the application that first applicant Dr. P Boregowda was born on 16-7-1952 and he has attained the age of 54 years on 16-7-2006. He was selected for Karnataka Administrative Service (KAS) Junior Scale on 25-8-1983 and was given Senior Scale on 3-10-1989 and subsequently, he has been given selection grade with effect from 10-7-2001 and Super Time Scale with effect from 26-2-2004. The second applicant – Sri Shivananjaiah was born on 2-4-1951 and he has attained the age of 54 year on 2-4-2005. He was selected for Karnataka Administrative Services 9KAS) Junior Scale on 10-1-1983. He was given Senior Scale on 3-10-1989. Subsequently, he was given selection grade with effect from 14-11-2000 and Super Time Scale with effect from 14-11-2003. The third applicant – Sri S Puttaswamy was born on 5-3-1952 and he has attained the age of 54 years on 5-3-2000. He was selected for Karnataka Administrative Service (KAS) Junior Scale on 19-1-1983. He was given Senior Scale on 3-10-1989. Subsequently, he was given selection grade with effect from 10-7-2001 and Super Time Scale with effect from 26-2-2004. 10. It is averred that fixation of cut off age as 54 years under Regulation 5 (3) for consideration of members of State Civil Services for promotion in IAS is illegal, capricious, whimsical and he has been “picked out from a hat” having no nexus with the object sought to be achieved by fixing 54 years as cut off age. 10. It is averred that fixation of cut off age as 54 years under Regulation 5 (3) for consideration of members of State Civil Services for promotion in IAS is illegal, capricious, whimsical and he has been “picked out from a hat” having no nexus with the object sought to be achieved by fixing 54 years as cut off age. It is further averred that earlier first proviso to sub-rule of Rule 16 off All India Services (Death-cum-Retirement Benefit) Rules, 1958 provided that a member of All India Services shall retire on attaining the age of 58 years and the age of retirement was increased to 60 years by notification dated 13-5-1998 and since the date of retirement has been increased from 58 to 60 years, cut of age of 54 years as mentioned in Regulation 5 (3) ought to have been increased by two years. It is further averred that fixation of age of 54 years as cut off date is arbitrary. Article 14 not only empowers equal treatment but also arbitrary action in fixing the cut off date and Rule 5 (3) puts embargo restricting the candidates who are seeking to improve their position vis-à-vis their carrier in Government service and therefore the said Regulation 5 (3) is invalid and arbitrary. It is also violative of Article 51-Aa of the Constitution of India. There is no reason or basis as to why the said embargo of 54 years of age was imposed. The said Regulation 5 (3) suffers from vice of arbitrariness and the same is violative of Article 14 & 16 of the Constitution of India. It is averred that selection proceedings were held by the selection committee on 2-11-2006 whereby selection committee recommended for the selection and appointment by promotion of 11 respondents in Indian Administrative Service (IAS) from the post of Karnataka Administrative Service and the selected members comprised of member from Union Public Service Commission (UPSC), two Joint Secretaries of Government of India. Chief Secretary, Government of Karnataka. Revenue Secretary and senior most Divisional Commissioner. State of Karnataka, In the said meeting held by the Committee, the following year-wise vacancies were considered to be filled up: Year No. of Vacancies 2003 2 2004 2 2005 6 2006 1 Total: 11 11. It is averred that KAS Officers are regularly promoted to IAS cadre based on the vacancies available during that year. State of Karnataka, In the said meeting held by the Committee, the following year-wise vacancies were considered to be filled up: Year No. of Vacancies 2003 2 2004 2 2005 6 2006 1 Total: 11 11. It is averred that KAS Officers are regularly promoted to IAS cadre based on the vacancies available during that year. The procedure for promotion is clearly laid down in the Regulation 5(5) of Promotion Regulation. It is further averred that the selecting committee is required to consider the meritorious candidate and not the seniority and the seniority will come into play when the merit is equal. It is further averred that third applicant came to know that he was given average grading for the year 2001-2002 by the select committee and the applicant has no reason to believe as to why has been given average grading and therefore, average grading given by the selecting committee for the year 2001-2002 is illegal, arbitrary and accentuated with malafide, as the selecting committee wanted to select those persons who were inferior to the applicant. It is also averred that even if it is assumed that the third applicant’s ACR for the year 2001-2002 was average, he was never informed by the department and therefore, the said ACR cannot be taken into consideration by the selection committee. It is also averred that the applicants have already crossed the age of 54 years and they will not be considered as falling within the consideration zone in view of Regulation 5 (3). The State Government has already prepared the list of members of eligible candidates of State Civil Services for consideration for promotion to IAS in their order of seniority on 1-1-2007 to fill up vacancies available in the year 2006 and the applicants name do not figure in the said list. Therefore the said list is illegal as the names of applicants should have also been incorporated in the list in view of proviso to Regulation 5 (3). The third applicant has made a representation dated 15-2-2007 and the same has been replied by the third respondent stating that the representation of the third applicant has been examined and there is no provision under the law to consider his name for promotional vacancies available as o 1-7-2007 to IAS since he has crossed the upper age limit of 54 years on 5-3-2007. Thereafter third applicant filed W.P.(C) No.200/2007 before the Honorable Supreme Court questioning the constitutional validity of Regulation 5 (3) of the Promotion Regulation. However, third applicant withdrew the said petition with liberty to file the application before the Tribunal. It is also averred that therefore there cannot be arbitrariness in fixing cut-off age after Article 14 has spread its wings in the field of administrative law following the decision in Maneka Gandhi’s case ( 1978 (1) SCC 248 . Indeed, even before the decision of Maneka Gandhi’s case. Law was that no administrative authority has absolutely discretion to decide the matter within its competence the way it chooses. Therefore, the applicants have filed the above mentioned applications for the aforesaid reliefs. The other applications were also filed on similar averments seeking for the reliefs as sought for in O.A.No.262/2007. 12. The said applications were opposed by respondent No.1 by contending that Regulation 5 of the Promotion Regulation has enumerated the process for appointment of State Civil Service Officers to the IAS and the procedure to be followed by the Committee in preparing the list of selected candidates among the officers coming under the zone of consideration. It is further averred that there is no change in the policy of recruitment under the rules and regulations pertaining to All India Services in the light of the amendment to Rule 16 of the AIS (Death Cum Retirement Benefit) Rules, 1958 providing for increase in the age of retirement from 58 years to 60 years. The upper age ceiling in the eligibility criteria for consideration of SCS officers for entering in the All India Services is not entirely dependent upon the retirement age of All India Services under the Central Government. The retirement age in the State Service is also a relevant factor for the purpose. In the Government of Kerala and Nagaland, the retirement age for the State Government servants is 55 and 57 respectively and most of the State Governments are continuing with the retirement age off 58 years with regard to State Governments. The Central Government as the Cadre Controlling Authority for All India Services is interested in obtaining the services the promoted officers for a reasonable long period after their induction in the All India Service. The Central Government as the Cadre Controlling Authority for All India Services is interested in obtaining the services the promoted officers for a reasonable long period after their induction in the All India Service. Any proposal for raising the upper age ceiling in the eligibility criteria will scuttle this benefit and will be against the interest of the cadre management of the three All India Services. As such, the present age limit of 54 years for consideration of State Service Officers for promotion to the All India Services does not need any change as the system under the present dispensation as a whole is working satisfactorily. It is further averred that the selection committee met on 2-11-2006 for preparation of select lists of SCS Officers for the years 2003 to 2006 for promotion to IAS cadre of Karnataka and it had not considered the name of the first applicant namely. Dr. P. Boregowda as his name was not included in the zone of consideration provided by the State Government. The other zone of consideration of 2005 were assessed as ‘good’ and ‘very good’ respectively and on the basis of this assessment and keeping in view their seniority in the State Civil Service, their names were not included in the select list of 2005. Therefore, they contend that no ground is made out to quash Regulation 5 (3) of Promotion Regulation which is impugned in the applications. 13. The tribunal clubbed all the applications and by a common order dated 30-11-2009 held that fixation of the age of 54 years as the upper age limit for promotion of State Civil Officers to IAS is arbitrary and by amending the Promotion Regulation in 1967 and 1979 by introduction of clause 5 (3), the Government has subjected the officers of State civil Service to a micro classification and the said classification has failed to satisfy the latter part of the ‘twin tests of intelligible differentia and the differentia having a rational nexus to the object sought to be achieved. Therefore, there is no nexus between the classification and the object sought to be achieved. The Tribunal observed that prior to 1967 there was no age limit in the eligibility condition for inclusion in the select list. Therefore, there is no nexus between the classification and the object sought to be achieved. The Tribunal observed that prior to 1967 there was no age limit in the eligibility condition for inclusion in the select list. It was only because the Central Government did not approve the action of a State Government which gave extension of service beyond retirement age to an officer who was on the verge of retirement and who was selected to IAS that the Central Government in consultation with the Law Ministry decided in March, 1967 to introduce a new provision in the Regulations laying down that the selection committee should not ‘ordinarily’ consider the cases of officers who were over 52 years of age. At that time, the Central Government was also aware of the fact that the use of the word ‘ordinarily’ would lead to inclusion in the select list of officers close to the age of superannuation. But the classification introduced in 1967 by putting the State Civil Service Officers in two groups namely, those who are less than 52 years and those who have crossed 52 years, though had an ‘avowed objective’ could not lead to the objective for the reasons that as the word ‘ordinarily’ was used, officers above 52 years with outstanding merit and suitability could be selected and also because of ‘the pressures from the State Governments and individuals, officers close to the retirement age could get selected and the decision maker was very well aware that by giving so many exceptions for the age restriction, the very purpose of prescribing such a restriction will be defeated. Thereafter the age limit was enhanced from 52 years to 54 years. Therefore, the Tribunal passed the following under: The applicant in O.A.262/2007 have challenged the eligibility list of KAS officers for consideration for promotion to the IAS as on 1-1-2007 (Annexure-A4 in O.A.NO.262/2007) and have prayed that the same may be quashed and set aside. We grant the prayer. Thereafter the age limit was enhanced from 52 years to 54 years. Therefore, the Tribunal passed the following under: The applicant in O.A.262/2007 have challenged the eligibility list of KAS officers for consideration for promotion to the IAS as on 1-1-2007 (Annexure-A4 in O.A.NO.262/2007) and have prayed that the same may be quashed and set aside. We grant the prayer. In O.A.262/2007 there is also a prayed to quash and set aside the letter dated 16-3-2007 (Annexure-A6 to the O.A) which is the reply given to the applicant no.3 by the 3rd respondent in the O.A Annexure A6 in O.A 262/2007 is quashed and set aside and the respondents are directed to grant the prayer of the applicant to include his name in the consideration zone for promotion to IAS against the vacancies available as on 1/1/2007. The applicant in O.A 447/2007 has also prayed for quashing the list of eligible officers for selection to IAS as on 1/1/2006 for the reason that the applicant’s name was not included in the list of six officers given at Annexure A2 of the O.A. on verification of the minutes of the selection committee for the assessment year of 2006 produced by respondent no.3, we find that there was only one vacancy for the year 2006 and only 3 officers were included in the eligibility list. Thus, firstly, Annexure-A2 to the O.A. is not the actual list of officers prepared by respondent no.3 who are eligible to be considered for selection to IAS for the vacancies of 2006. Secondly, the applicant is fat too junior to even the junior most officer (at sl.no3) who was included in the eligibility list viz. K Satyamurthy and thus the applicant had no chance of being included in the eligibility list for the year 2006. Further, if the applicant was aggrieved about the eligibility list as on 1/1/2006, he should have approached this Tribunal within the limitation period and not as late as on 28/11/2007 (and that too without any application for condonation of delay). For the above reasons, the prayer to quash Annexure A2 in O.A 447/2007 does not survive and we order so. Further, if the applicant was aggrieved about the eligibility list as on 1/1/2006, he should have approached this Tribunal within the limitation period and not as late as on 28/11/2007 (and that too without any application for condonation of delay). For the above reasons, the prayer to quash Annexure A2 in O.A 447/2007 does not survive and we order so. Regarding the additional prayer in O.A 88/2008, we have already stated in paragraph 28.1 of this order that the prayer for a direction to consider the applicant against the additional vacancies that became available from 30/12/2008 does not survive as the applicant has not challenged Regulation 5(1) of promotion Regulations, 1955. We hold accordingly.” 14. Being aggrieved by the above said order passed by the tribunal dated 30/11/2009; these writ petitions have been filed as referred to above. 15. We have heard the learned Additional Solicitor General, learned Sr.Counsel appearing for the petitioners and learned Sr.counsel appearing for the respondents and the reply arguments. 16. Having regard to the contentions urged, the points that arise for our determination in these writ petitions are as under: (1) Whether the finding of the tribunal in the impugned order dated 30/11/2009 holding that fixation of age of 54 years as upper age limit for promotion of the members of State Civil Services to IAS cadre as provided under Regulation 5(3) of the promotion Regulation as illegal and arbitrary, is justified or calls for interference? (2) What order? 17. The learned Addl. Solicitor General appearing for the petitioners in W.P.Nos 1803-06/2010-Union of India submitted that the order passed by the tribunal impugned in these writ petitions is liable to be set aside as the reasoning upon which the tribunal has proceeded to hold that the provisions of Rule 5(3) of the Promotion Regulation regarding consideration of SCS who have completed the age of 54 years is invalid and illegal and quashing the same is unsustainable. He further submitted that the Regulation has been framed after consulting various state governments and cut off age of 54 years has been fixed and the government has taken into account after consulting the state government, the entire facts including the age of retirement prescribed in the states for the government servants and also of the fact that after entering into the cadre of IAS, they must have a sufficiently long service and therefore, age of 54 years has been introduced in 1979 which was earlier to 52, the policy of the government fixing the age to 54 years as the cut-off date under Regulation 5(3) of the Promotion Regulation is justified and when the applicants challenged the constitutional validity of the said rule, it was for them to discharge the burden of proving that the said fixation of age of 54 years as cut off date is arbitrary and contrary to the provisions of Article 14 & 16 and 51A of the Constitution of India as averred in the application as it is always presumed that every rule which forms part of the act would be valid. The learned Addl. Solicitor General further submitted that policy decision has been taken after weighing pros and cons and in view of the necessity of increasing or deleting the age of 54 years and the classification made among the state civil servants who have completed the age of 54 years and who were not completed the age of 54 years for the purpose of promotion to the cadre of IAS forms a separate classification and there is nexus in making the said classification as the object of the Central Government is to select the best of the candidates available from each state, having regard to the availability of vacancy position every year and the Central Government also have taken into account the fact that the persons who are promoted to IAS cadre should have sufficiently long service for rendering their services to the department and policy decision of the government has not been shown to be arbitrary. The Addl. Solicitor General further submitted that no ground whatever is made out to show that there is classification within the classification by fixing the cut off date as 54 years or that there is no nexus with the object sought to be achieved as held by the tribunal. The Addl. Solicitor General further submitted that no ground whatever is made out to show that there is classification within the classification by fixing the cut off date as 54 years or that there is no nexus with the object sought to be achieved as held by the tribunal. The order of the tribunal is baseless and liable to be set aside. In support of his contention, he has relied upon the decision of the Supreme Court in the State of Jammu & Kashmir vs Triloki Nath Khosa ( AIR 1974 SC 1 ) wherein in paras 55 & 56 of the said judgment, Honorable Supreme Court has observed as follows: “55. We are therefore of the opinion that though person appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate articles 14 and 16 of the Constitution and must be upheld. 56. But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be the goal of all good government and excellence and equality are not friendly bed-fellows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert. Perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment; what after all is the operational residue of equality and equal opportunity? The learned Addl. Solicitor General has relied on another decision of the honorable Supreme Court in Ramrao & others Vs All India Backward Class Bank Employees welfare Association & others ( (2004) 2 SCC 76 ) wherein considering the fixation of cut off date for promotion. It has been observed as follows: “29. The learned Addl. Solicitor General has relied on another decision of the honorable Supreme Court in Ramrao & others Vs All India Backward Class Bank Employees welfare Association & others ( (2004) 2 SCC 76 ) wherein considering the fixation of cut off date for promotion. It has been observed as follows: “29. It is now well settled that for the purpose of effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless a cut-off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. In the instant case, the cut-off date so fixed having regard to the directions contained by the National Industrial Tribunal which had been given a retrospective effect cannot be said to be arbitrary, irrational, whimsical orcapricious. 30. The learned counsel could not point out as to how the said date can be said to arbitrary and thus, violate of Article 14 of the Constitution of India. 31. It is not in dispute that a cut-off date can be provided in terms of the provisions of the statue or executive order, in university Grants Commission vs Sadhana Chaudhary it has been observed (SCC p.546, para 21) “21. … it is settled law that the choice of a date as a basic for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (see Union of India vs. Parameswaram Match Works, SCC at 310; SCR at P. 579 and Sushma Sharma (Dr) vs. State of Rajastha, SCC at 66; SCR at P.269) 32. If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the bank to promote its employees seeks to achieve. If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend article 14 of the Constitution of India. 33. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut-off date, but, the fact that some persons or a section of society would face hardship, by itself cannot be a ground for holding that the cut-off date so fixed is ultra vires Article 14 of the Constitution. He has replied on para 9 of the decision of the Honarable Supreme Court in Food Corporation of India vs Parashotam Das Bansal & others ( (2008) 5 SCC 100 ) and para 10 of the decision of the Honarable Supreme Court in P U Joshi & others vs Accountant General & others ((2003) 2 SCC 632) The learned Addl Solicitor General submitted that since 1979 fixation of the age limit of 54 years is in operation and no grievance whatever was raised and the said cut off date is working smoothly and there was no material to take a different policy decision either to raise the cut off age or to delete the said provision. Therefore, the order of the tribunal is liable to be set aside. 18. Sri P S Rajagopal, learned Sr.Counsel appearing for the petitioners in W.P.Nos 1527-34/2010 submitted that fixation of cut off date of 54 years and thereby making classification among the persons in state services as persons who have completed the age of 54 years and the persons who have not completed the age of 54 years is valid classification and the same bears nexus with the object sought to be achieved i.e., to promote the best of the officers in the State to the IAS cadre and it is a policy decision taken by the State Government and the Rules made under Regulation would be part of the statute and wherever the same is presumed to be constitutional and burden is upon the applicants to prove that there is no nexus. He has submitted that there is no micro classification as reasoned by the tribunal and there is valid nexus between the classification made and the object sought to be achieved. The learned counsel submitted that the said classification has been operating since 1979 and no ground whatever is made out to show that the said fixation of cut off age of 54 years is arbitrary or contrary to Articles 14, 16 & 51 of the Constitution of India. The learned counsel has relied upon para 3 of the decision of the Honorable Supreme Court in Basant Lal vs State of U.P ( (1998) 8 SCC 589 ) wherein it has been held that statutory provisions are to be presumed to be constitutional, that constitutionally is to be considered only where absolutely necessary, that a statute cannot be struck down unless notice has been given to the Attorney General in the case of a Central Statute or the Advocate General in the case of a State Statute and the tribunal did not issue any notice to the Advocate General or the Solicitor General and had decided the matter in their absence and therefore, the order of the tribunal cannot be sustained. He has also relied upon the observations made in para 4 of the decision of the Supreme Court in State of Karnataka & another vs B Suvarna Malini & another ( (2001) 1 SCC 728 ) in support of his contention that policy decisions taken cannot be interfered with unless violation of fundamental right has been made out and rule made is legislative in character. He has also relied upon the decision of the Division Bench of this court in a Noronha Vs State of Mysore (ILR 1966 Mysore 418) wherein the Division Bench of this court has considered the constitutional validity of Mysore Police Service Recruitment Rules, 1965 prescribing that for being promoted as Deputy Superintendent of Police from the cadre of Circle Inspectors, the officer concerned should not have completed 52 years at the time the question of his promotion comes up for consideration and has observed as follows: “that apart, taking into consideration the nature of the duties to be performed and the responsibilities to be carried by a Deputy Superintendent of Police, we are unable to agree with Mr. Datar that the condition requiring that he should have a prospect of serving in the post in question atleast for a period of three years – the age of superannuation being 55 years- it cannot be said that the rule in question is an arbitrary one. The post of a Deputy Superintendent of Police is a responsible post. Public interest may not be best served if the official to be promoted to that post turns out be a mere bird of passage having no interest in the office to which he is promoted. We assume that this was one of the considerations which must have swayed with the government in making the impugned rule. It is true that a rule of this character can be misused. That is true of most provisions. The possibility of an officer who is not in the good books of his superiors, not being promoted in due time and thereby his chances of promotion ruined is undoubtedly thee. But the possibility of misuse of a rule is no ground for holding that rule to be bad. If it is a sound principle of law, to assume, that the persons who are in charge of the government are discharging their onerous duties and responsibilities in a fair and honest manner. This assumption, we know from experience, is not always true. But those deviations from proper conduct are exceptions, which as is said in logic, proves the rule”. He has also relied on number of decisions of the Honorable Supreme Court which will be referred to while considering the contention of the learned counsel. 19. In response to the arguments of learned counsel for the petitioners, Sri B V Acharya, learned Senior Counsel appearing for respondents 4 to 6 in W.P Nos 1803-06/2010 submitted that there may be a classification fixing the age of 54 years as cut off date and debarring the person who has completed the age of 54 years for promotion to the cadre of IAS. He submitted that apart from that, for the purpose of Article 14, to treat the equals as unequal, there should be valid classification and there should also be nexus with the object sought to be achieved and in the present case, there may be classification of persons who have completed the age of 54 years in the services of the State Government and who have not completed 54 years however, there is no nexus with the object sought to be achieved and if at all there is object, the same is defeated by proviso (1) & (2) wherein no persons who have completed the age of 54 years can be considered and therefore, in the absence of nexus between the classification and the object sought to be achieved, fixation of the age limit cannot sustained and length of service can only be the criteria for promoting State Civil Officers to the cadre of IAS. He has relied upon the decision of the Honorable Supreme Court in T N Administrative Services Officers Association vs Union of India ( (2000) 5 SCC 728 ). 20. Sri RAvivarma Kumar, learned Sr.Counsel appearing for the respondents submitted that fixation of age of 54 years under Regulation 5(3) and prohibiting consideration of persons in State Civil Services who have completed the age of 54 years for promotion to the post of IAS cadre is wholly arbitrary and is violative of Articles 14 and 16. He further submitted that rule itself is ultravires as the same is beyond regulation 8 which enables framing of the Regulation and he has relied upon number of decisions in support of his contention, which would be referred while considering the contention of the learned Sr.counsel. He further submitted that length of service can only be the criteria for effecting promotion from one cadre to higher cadre and apart from length of service, there cannot be any other criteria like age, experience, for prescribing age or experience as a condition precedent for promotion dehorse length of service. The learned Sr. Counsel submitted that even assuming that there is classification made between the State Civil Servants who have completed 54 years and those who have not completed 54 years, there is no nexus with the object of selecting the best candidates available in the state civil services for the promotion to the post of IAS cadre. The learned Sr. Counsel submitted that even assuming that there is classification made between the State Civil Servants who have completed 54 years and those who have not completed 54 years, there is no nexus with the object of selecting the best candidates available in the state civil services for the promotion to the post of IAS cadre. The learned Sr. Counsel submitted that the said classification would create classification within classification and there is no nexus between the classification and the object sought to be achieved. The learned Sr.counsel further submitted that equality and inhibition against discrimination, fairness and equality of treatment are the ingredients of article 14 and the same has been violated. In this case, fixation of prescription made under Regulation 5(3) debarring a member of the state civil service who have completed the age of 54 years is wholly arbitrary and cannot be sustained and the tribunal has passed a detailed order with valid reasons for quashing the said cut off date of 54 years and the order of the tribunal is justified. 21. Sir H Subramanya Jois, learned Sr. Counsel submitted that the jurisdiction of this court under Article 227 is limited to interpret the order impugned and this court will interfere only when there is error apparent on the face of the order. He has relied upon decision of the honorable Supreme Court in I.H Shah vs. State of Gujarat & another (1986 (2) SLR 12) wherein promotion of the civil judges to the post of the District Judges wherein the age limit has been prescribed is held to be arbitrary. He submitted that debarring a member of the State Civil services who have completed the age of 54 years from considering the post of IAS is violative of Article 14 of the Constitution of India. 22. Sri M S Bhagawat, learned counsel appearing for the respondent submitted that the condition is regulation 5(3) which was impugned before the tribunal wherein persons who have completed the age of 54 years cannot be considered for promotion to IAS cadre from the State is wholly arbitrary. Apart from reiterating the arguments made by the learned Sr. counsel in support of the order passed by the tribunal, he also relied on number of decisions which would be referred to while considering the contention of learned counsel for the parties. Apart from reiterating the arguments made by the learned Sr. counsel in support of the order passed by the tribunal, he also relied on number of decisions which would be referred to while considering the contention of learned counsel for the parties. He further submitted that the order passed by the tribunal is justified and no ground is made out for interfering with the order passed by the tribunal. 23. Sri Kantharaj, learned counsel for the respondents also adopted the arguments of learned Sr. counsel and argued in support of the order passed by the tribunal. 24. We have given our careful consideration to the contentions of learned Sr. Counsel and counsel appearing for the parties and scrutinized the material on record. 25. Before considering the contentions of the learned counsel, it is necessary to cull out the provisions of Regulation 5(3) of the Promotion Regulation which reads as under: “5(3) The committee shall not consider the cases of the members of the State Civil Services who have attained the age of 54 years on the first day of January of the year for which the select list is prepared; Provided that a member of the State Civil Service whose name appears in the select list (prepared for the earlier year) before the date of the meeting of the committee and who has not been appointed to the service only because he was included (provisionally in that select list) shall be considered for inclusion in the fresh list to be prepared by the committee, even if he has in the meanwhile attained the age of 54 years; Provided further that a member of the State Civil Service who has attained the age of 54 years on the first day of January of the year for which the select list is prepared shall be considered by the committee, if he was eligible for consideration on the first day of January of the year or of any of the years immediately proceeding the year in which such meeting is held but could not be considered as no meeting of the committee was held during such preceding year or years under item (b) of the proviso to sub-regulation (1)”. The said Regulation has been framed by the Central Government in pursuance of sub-rule (1) of Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954 and in consultation with the state governments and the Union Public Service Commission. The applicants before the Tribunal – respondents in the writ petitions have not challenged the entire provisions of Regulation 5(3) of the promotion Regulation. They have only challenged regulation 5(3) which debars the committee from considering the cases of members of the state civil services who have completed the age of 54 years on first January of every year for which select list is prepared. The proviso provide for relaxation of the age of 54 years when there is no fault on the part of the State Civil Servants and meeting of the selection committee was not held and where state civil servant was placed in the provisional list, he could not be selected for pendency of any enquiry and under such circumstances, relief is given to the persons who are in the state service even if they have completed the age of 54 years. 26. The petitioners have not challenged the provisions of Regulation 5(3) in its entirely but have only challenged the prescription of the maximum age to which persons employed in state services can be considered for promotion to IAS i.e., 54 years and have not challenged other provisions of Regulation 5(3). 27. It is clear from the averments made in the petitions that though the petitioners have contended that age ought to have been extended from 58 years to 60 years under Regulation 593), the said contention has not been pursued and the same has not been rejected by the tribunal and if the said contention is argued, the same would not enable the petitioners to argue about the arbitrariness of fixing the age as the basis for classification. Moreover, in the case of Government of Andhra Pradesh vs G Limbadri Rao wherein the tribunal has negative the said contention and the High Court has also upheld the same. The supreme court though decided the appeal on other ground, did not disturb the said finding. Therefore, it is necessary to go into the said question. 28. Moreover, in the case of Government of Andhra Pradesh vs G Limbadri Rao wherein the tribunal has negative the said contention and the High Court has also upheld the same. The supreme court though decided the appeal on other ground, did not disturb the said finding. Therefore, it is necessary to go into the said question. 28. There is no force in the contention of learned counsel appearing for the respondents that persons who are not parties before the tribunal cannot approach this court directly and they ought to have filed an application before the tribunal and thereafter come to this court. It is contended that since the persons who were not parties before the tribunal have approached this court directly by challenging the order, they must be relegated to the tribunal and thereafter may be permitted to file the writ petition. As it is clear that the validity of the order passed by the tribunal is already in challenge in the petitions filed by the persons who were parties in the applications before the tribunal and the same is being considered and therefore, at this stage, when the writ petitions are taken up for final hearing, it may not be appropriate to relegate the petitioners who are not parties before the tribunal to the tribunal to file an application and therefore approach this court as the tribunal has already decided the matter in the impugned order dated 30/11/2009. Therefore, the decision relied upon by the learned counsel in Rajeev Kumar & another vs Hemraj Singh Chauhan & others (2010 (2) Supreme Today 517) is not helpful to the respondents in the present case to contend that the petitions filed by the petitioners who are not parties before the tribunal are not maintainable and they should be relegated to the tribunal. 29. the next contention that is required to be considered is about the constitutional validity of the fixation of age 54 years in regulation 5(3) wherein the persons in state services who have completed 54 years of age cannot be considered on the first day of January, for which select list shall not be considered by committee. 29. the next contention that is required to be considered is about the constitutional validity of the fixation of age 54 years in regulation 5(3) wherein the persons in state services who have completed 54 years of age cannot be considered on the first day of January, for which select list shall not be considered by committee. The contention of the applicants before the tribunal is that fixation of age would bring about classification within classification and has no nexus to the object sought to be achieved and the said fixation of age of 54 years is arbitrary and violative of articles 14, 16&51A of the constitution of india. 30. On the other hand, it is the contention of the appellants-union of india and aggrieved writ petitioners that the policy decisions of fixing 54 years as the cut off date for consideration of the persons in the services for promotion to IAS cadre is based upon the valid grounds and the same has been working from 1979 and the government has not changed the said policy decision even after the age of retirement of central government employees was enhanced from 58 to 60 years and having regard to the prevalent age of retirement in various states and also the fact that the persons who are promoted to IAS cadre when discharging onerous responsibilities and duties as in that cadre, the government would expect them to have sufficiently long service and , therefore taking into account all the pros and cons, the age of 54 years has been fixed and the same would constitute valid classification and has nexus with the object sought to be achieved. 31. it is well settled that there is always a presumption in favour of the constitutionality of the enactment and burden is upon the person who attacks it to show that there is clear violation of constitutional principles. 31. it is well settled that there is always a presumption in favour of the constitutionality of the enactment and burden is upon the person who attacks it to show that there is clear violation of constitutional principles. In a recent decision of the hon’ble supreme court in NAGALAND SENIOR GOVT.EMPLOYEES WELFARE ASSOCIATION & OTHERS vs STATE OF NAGALAND & OTHERS (AIR 2010 SCW 4552) was considering the Nagaland retirement for public employment act(3 of 1991), section 3 as amended by (second amendment) act, 2009 wherein a person who has rendered 35 years of service is also liable to retire on superannuation and when the said cut off date was challenged before the supreme court, the honorable supreme court regarding the burden required to be discharged in cases where enactment or rule is challenged, has observed that there is presumption of constitutionally and the burden is upon the person who attacks the same to prove that it is without legislative competence or that the same violate any of the fundamental right or constitutional principles. Referring to the earlier decision of the honorable supreme court in Mohd. Hanif Quareshi & others vs State of Bihar ( AIR 1958 SC 731 ) the honorable Supreme court observed as under: “…the classification, it has been held, may be founded on different bases, namely, geographical or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the act under consideration. The pronouncements of this court further establish amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The pronouncements of this court further establish amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discrimination are based on adequate grounds.” The aforesaid legal position was reiterated in Mahant Moti Das vs S P Sahi, the special officer in charge of Hindu Religious Trust & others in the following words: “ The decisions of this court further establish that there is a presumption in favour of the constitutionally of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and further that the legislature is free to recognize degrees of harm and may confine its restrictions degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest…” The Honorable supreme court has also held that where validity of the rule is challenged as offending the Article 14 the burden is upon the applicant or the petitioner to plead and prove infirmity and it has been observed as follows: 34. In the case of State of Uttar Pradesh vs Kartar Singh, the constitution Bench of this court held that where a party seeks to impeach the validity of a rule on the ground of such rule offending article 14, the burden is not him to plead and prove infirmity. The court said: “…. If the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of art. If the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of art. 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend art.14 the burden is on him to plead and prove the infirmity is too well established to need elaboration. If, therefore the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification of the zones and the prescription of the minimum standards to each zone, and where we have a rule framed with the assistance of a committee containing experts such as the one constituted under S3 of the act, that presumption is strong, if not overwhelming……..” The honorable Supreme court has referred to the earlier decision in A C Aggarwal, Sub-divisional Magistrate, Delhi & another vs Mst.Ram Kali etc., wherein the same principle have been reiterated and in the seven-judge bench of the honorable supreme court in Pathumma & others Vs State of Kerala & others ( (1978) 2 SCC 1 ), it has been observed as under: “It is obvious that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under part III of the constitution or when the act is beyond the legislative competence of the legislature or such other grounds. The court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under part III of the constitution or when the act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the courts have recognized that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same……………” 32. In view of the above said recent decision of the honorable supreme court, it is clear that the burden is upon the applicants before the tribunal who have attacked regulation 5(3) insofar as it fixes the age of 54 years as the cut off date, to show that the said regulation is either violative of the provisions of the act or that it is without legislative competence or that it violates any of the fundamental rights of the applicants or any constitutional principles. 33. It is the case of the applicants in the present case that the impugned regulation is violative of Articles 14,16 & 51A of the Constitution of India. So far as article 51A is concerned, it is well settled that the same does not confer fundamental right on the petitioner and the main contention of the applicants is that the impugned regulation is violative of article 14 and 16(1) as it is arbitrary. It is the contention of the applicants that there is no valid classification and there is no nexus between the classification and the object sought to be achieved and the said classification would create classification within classification and therefore invalid in view of the decision of the honorable supreme court. It is their contention that the said fixation of the age of 54 years has nothing to do with the object which is sought to be achieved by promoting the persons from state civil services to the IAS cadre and the object is to select the candidates to Indian Administrative Service and the same would not in any way achieved by fixing the age as a criteria and regulating that the persons who completed the age of 54 years shall not be considered for promotion to IAS cadre from the State civil services as per regulation 5(3) which is impugned in the applications filed before the tribunal. 34. 34. The legislative competence of regulation 5(3) is not disputed. There is also no merit in the contention of learned counsel appearing for the applicants/respondents herein that regulation 5(3) is ultravires as Rule 8 does not provide for fixation of age in the regulation and therefore, the said regulation framed in exercise of power under sub-rule (1) of Rule 8 of Indian Administrative Service (Recruitment) Rules, 1954 and is void as it is clear that rule 8(1) of the said rules provides that the central government may, on the recommendation of the state government concerned and in consultation with the commission and in accordance with such regulations as the central government may, after consultation with the state government and the commission from time to time, make recruit to the service persons by promotion from amongst the (substantive) members of a state civil service. Regulation 5(3) pertains to preparation of list of suitable officers and procedure to be followed by the committee for selection of the persons from the state civil services. It is clear that the said regulation cannot be said to be without jurisdiction. Merely because rule 8(1) does not specifically prescribe that age limit can also be fixed would not mean that regulation 5(3) prescribing the age limit is ultravires and void as wide power is given to the central government to make regulations from time to time to make recruitment to the service persons by promotion from amongst substantive members of a state civil service and has legislative competence in making the regulation. Therefore, the contention that regulation 5(3) of the promotion regulation which is impugned in the applications is ultravires of rule 8(1) of the Indian Administrative services (recruitment) rules, 1954 cannot be accepted. 35. It is well settled that article 14 of the Constitution forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. When any statutory provision is assailed on the ground that it contravenes article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an inteligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second is that the differentia in question must have a reasonable relation to the object sought to be achieved by the statutory provision in question. The first test is that the classification on which it is founded must be based on an inteligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second is that the differentia in question must have a reasonable relation to the object sought to be achieved by the statutory provision in question. This principle was laid down by the Division Bench of this court in a Noronha’s case cited supra and the same has been approved by the decision of the supreme court and reiterated in several decisions relied upon by the learned counsel appearing for the applicants. When the said test is applied to the facts of the present case, it is clear that it is for the applicants to prove that the classification is not valid and it is not based upon an intelligible differentia which distinguishes things put together from others left out of the group and the differentia in question has no nexus between the classification and the object sought to be achieved by the statutory provision in question. 36. So far as classification is concerned, regulation 5(3) clearly makes a classification between the persons who have completed the age of 54 years, who cannot be considered from state civil services for promotion to IAS. Their names cannot be included and the persons in state civil services who have attained the age of 54 years on the first day of January of the year for which the select list is prepared. Therefore, there is valid classification in respect of the persons in the state civil services who have attained the age of 54 years which would clearly distinguishable from the persons who have not yet attained the age of 54 years and it cannot be said that there is any classification within classification merely because the age of 54 years is taken as the cut off date. Further, in order to alleviate the difficulty in a case where there may be a person in State civil service who has completed the age of 54 years, may have a genuine case and may be deprived of his promotion to IAS cadre though there is no fault on his part and fault was with the employer union of india, it is clear that proviso (1) which states that a person from state civil service who was in the provisional select list, shall be considered for inclusion in the fresh list to be prepared by the committee, even if he has in the meanwhile attained the age of 54 years. The second proviso provides that where the committee meets after may years, not punctually every year, then also if a person who has completed 54 years on the first day of January of the year for which the select list is prepared, will be entitled to be considered on the next sitting of the committee i.e., meeting held during such preceeding year or years under item (b) of the proviso to sub-regulation (1). This would clearly alleviate the difficulty of persons who have attained the age of 54 years and would suffer for no fault of them and no recruitment is made for a particular year by delay in the committee meeting. Therefore, there is valid classification. 37. The other question requires to be considered is as to whether the said classification has nexus to the object sought to be achieved. It is clear from the averments made in the statement of objections that having regard to the fact that object of promoting the persons in the state services to IAS cadre is to select the best of civil servants who are most efficient and outstanding to discharge the duties of IAS officers. 38. It is well settled that in view of the decision of the supreme court relied upon by learned counsel appearing for the petitioners that the fact of cut off date is always been permitted to be made and unless it is shown to be malafide and the fixation of cut off date has been upheld by the supreme court in Rama Rao’s case cited supra wherein the supreme court was considering the classification between Asst. Engineers between Diploma Holders and Degree Holders for promotion to the post of Executive Engineers and with reference to the cut off date by making classification, it has been held that admittedly, a cut off date can be provided in terms of the provisions of the statute or execute order. Therefore, those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend article 14. The supreme court has observed as under: 31. it is not in dispute that a cut-off date can be provided in terms of the provisions of the statute or executive order. In university grants commission vs Sadhana Chaudhary it has been observed (SCC p. 546 para 21) “21. …. It is settled law that the choice of a date as a basic for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely. The decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark (see. Union of india vs Parameswaram match works, SCC at 310; SCR at p. 579 and Sushma Sharma (Dr) vs. State of Rajasthan, SCC at 66; SCR at p.269) 32. If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend article 14 of the constitution of India. 33. Such a classification has a reasonable nexus with the object which the decision of the bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend article 14 of the constitution of India. 33. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut-off date, but the fact that some persons or a section of society would fact hardship, but itself cannot be a ground for holding that the cut-off date so fixed is ultra vires article 14 of the constitution. 39. The Division Bench of this court in a Noronha’s case referred to above, wherein the age limit of 52 years was fixed for promotion of a person to the cadre of Dy. Superintendent of police from the cadre of circle inspectors. The rule provided that circle inspectors or the officer concerned should not have completed 52 years at the time of his promotion comes up for consideration. The division bench of this court held that it for the legislature to decide the policy decision and having regard to the nature of duties required to be discharged by the Dy. Superintendent of police and having regard to the fact that promotes should have a reasonable long period of service in the promoted cadre and would not be a mere bird of passage having no interest in the office to which he is promoted. It is true that rule of this character can be misused, that is true of most provisions. The possibility of an officer who is not in the good books of his superiors, not being promoted in due time and thereby his chances of promotion ruined is undoubtedly there but the possibility of misuse of a rule is no ground for holding the rule to be bad. It is a sound principle of law to assume that the persons who are incharge of the government are discharging onerous duties and responsibilities in a fair and honest manner. This presumption is not always true. But those deviations from proper conduct are exceptions, which, as is said in the logic, proves the rule. 40. It is a sound principle of law to assume that the persons who are incharge of the government are discharging onerous duties and responsibilities in a fair and honest manner. This presumption is not always true. But those deviations from proper conduct are exceptions, which, as is said in the logic, proves the rule. 40. The decision relied on by the learned counsel for the respondents wherein the year of service prescribed for promotion to the post has been set aside by the supreme court on the ground that same requirement was not there for promotion from other cadres is not helpful to them in the present case. Similarly, the decision in Indian Council of Legal Aid & Advice & others vs Bar Council of India & others ((1995 ) 1 SCC 732) wherein the Resolution barring enrolment to persons who have completed 45 years of age has been struck down by the supreme court on the ground that the resolution is discriminatory, unreasonable and arbitrary as the choice of the age of 45 years is made keeping only a certain group in mind ignoring the vase majority of other persons who were in the service of government or quasi government or similar institutions at any point of time. There is also discrimination between the persons who has already enrolled and were practicing even after completing the age of 45 years and those who were enrolled as advocates while they were young and had later taken up some job in any government or quasi-government or similar institutions and had kept the sanad in abeyance are not debarred from reviving their sanads even after they have completed 45 years of age. The said decision is not helpful to the respondents in the present case having regard to the above said classification and the object sought to be achieved. 41. It is well settled that when the respondents attack regulation 5(3) insofar as it relates to fixation of age of 54 years as a bar for employees under the state civil services to be considered for promotion to IAS cadre, it is for them to aver and prove as to how the same would affect their fundamental right or constitutional principle of unreasonable. Apart from stating that fixation of age of 54 years is arbitrary and fixation of age would not enable selection of the best available persons in the state civil services to the IAS cadre, they have not proved that the said regulation violates article 14 of the constitution. It may be noted here itself that when the burden is upon the applicants to prove that the said regulations violates articles 14 & 16 of the Constitution of India, the tribunal has proceeded on the basis that the government did not justify with valid reasons for fixing the age of 54 years. The tribunal has referred to the nothings made by the joint secretary and also the Desk officer regarding fixation of the age of 54 years and merely because it was argued that there is file pertaining to the notes regarding fixation of age of 54 years as cut off year, the same has not been produced and therefore, adverse inference has to be drawn and has jumped to the conclusion that the said regulation is arbitrary, unreasonable and liable to be quashed. It is well settled that the scope of judicial review in respect of policy decisions taken by the government regarding conditions of services of employees of the state or union government is limited as the state is presumed to be the employer who knows best about the conditions of service to be fixed upon its employees and this court or tribunal cannot sit in judgment over the decision taken by the government. The scope of interference by this court has been explained by the supreme court in Triloki Nath Khosa’s case cited supra and in Dilip Kumar Garg & another ( (2009) 4 SCC 753 ) 42. In Triloki Nath Khos’s casse the supreme court has laid down that rule cannot be struck down as discriminatory on any a priori reasoning ‘ that where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend article 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration. Further in para 20 it has been observed as follows: “20. Respondents have assailed the classification in the clearest terms but their challenge is purely doctrinaire. Further in para 20 it has been observed as follows: “20. Respondents have assailed the classification in the clearest terms but their challenge is purely doctrinaire. “academic or technical qualification can be germane only at the time of initial recruitment for purposes of promotion, efficiency and experience alone must count” this is the content of their challenge. The challenge, at best, reflects the respondent’s opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents in snot to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and condition of service: and if looked at from the classification is found to rest on a reasonable basis, it has to be upheld. 32. Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature or the rule making authority on the need to classify or the desirability of achieving a particular object. 43. In Dilip Kumar Garg’s case, the Supreme Court has laid down as follows: 15. In our opinion article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from junior engineer to Asst. Engineer and it is not for this court to sit over their decision like a court of appeal. The administrative authorities have experience in administration, and the court must respect this, and should not interfere readily with administrative decisions (see union of india vs Pushpa Rani and official Liquidator vs Dayanada) 16. Engineer and it is not for this court to sit over their decision like a court of appeal. The administrative authorities have experience in administration, and the court must respect this, and should not interfere readily with administrative decisions (see union of india vs Pushpa Rani and official Liquidator vs Dayanada) 16. The decision to treat all Junior Engineers whether degree holders or diploma holders as equals for the purpose of promotion is a policy decision, and it is well settled that this court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional provision or the statute. We find no such violation in this case. 17. in Tata Cellular vs Union of india it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a rule under article 309 of the constitution.” 44. It is clear from the material on record that age of the State civil servants for consideration of promotion to IAS cadre was fixed at 52 years earlier and the same was enhanced to 54 years in the year 1979 and the same is working without any complaint and there is presumption that the said age has been fixed after taking into consideration all the pros and cons of fixing the age and to achieve the object of selecting best available persons in the state civil services who would have sufficiently long service in IAS cadre and that the classification and object sought to be achieved cannot at all be said to be arbitrary or unconstitutional. There is no merit in the contention of learned sr. counsel appearing for the respondents that this court cannot interfere with the order passed by the tribunal on a question of fact about classification and object sought to be achieved as it is well settled that the provisions of Article 227 is made for correcting the errors apparent on the face of the record committed by the tribunal in not following the constitutional principles as laid down by the supreme court where decision of the tribunal is erroneous and arbitrary being not based upon the relevant material and is based on irrelevant material. Having regard to the scope of interference under Article 226 & 227 of the constitution of india, when the order passed by the tribunal is perused, it is clear, as already held by us that the tribunal has proceeded on the basis that there is classification which is not valid and the same has no nexus to the object sought to be achieved, and as no valid ground is made out by the government for fixing the age of 54 years as cut off year, it has based its decision on the notings made by the desk officer and the joint secretary and adverse inference being drawn for non production of the file containing grounds upon which the age of 54 years was fixed. The tribunal failed to note that there is always presumption and the said age is fixed by taking into account all the relevant facts. It is also averred in the applications that the same is violative of articles 14 and 16 of the constitution. The material on record would clearly show that in the present case, the applicants have failed to prove that the said fixation of age of 54 years as a bar for promoting employees in the state civil services to IAS cadre is violative of article 14 & 16 of the constitution of India and wherefore, the said classification is justified and the classification has nexus with the object sought to be achieved and therefore, it cannot be said to be arbitrary, unreasonable, unfair and unconstitutional rights of the applicants or constitutional principles. It is already held that regulation 5(3) of the promotion regulation is not ultravires and therefore, the order passed by the tribunal is perverse and arbitrary and contrary to the constitutional honorable Supreme Court as referred to above. Regarding burden of proof, the tribunal has relied upon the irrelevant material and has proceeded without any proper foundation and proper reasoning that the impugned regulation is arbitrary. 45. having regard to the over all material on record and the reasoning as referred to above, we hold that the applicants have failed to prove that impugned regulation 5(3) of the promotion regulation as unconstitutional. Accordingly, the order passed by the tribunal is liable to be set aside and the applicants filed by the applicants/respondents herein before the tribunal are liable to be dismissed. Accordingly, the order passed by the tribunal is liable to be set aside and the applicants filed by the applicants/respondents herein before the tribunal are liable to be dismissed. Accordingly, we pass the following: ORDER All the writ petitions are allowed. The order passed by the tribunal dated 30/11/2009 in O.A No. 262/2007, 416/2007, 447/2007 and 88/2008 are set aside and the impugned regulation 5(3) of the promotion regulation is held to be constitutional. The said applications filed before the tribunal in O.S No 262/2007, 416/2007, 447/2007 and 88/2008 are dismissed. However, there shall be no order as to costs in these writ petitions.