# Mohd. Azam Khan v. State of U.P.Through Secy. Deptt. of Irrigation Lko. & others

- **Citation:** (2012) 1 ILRA 130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-02
- **Bench:** Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-azam-khan-v-state-of-u-p-through-secy-deptt-of-irrigation-lko-others-42139
- **Pages:** 6

## Headnote

Rules
1954-Rule
8(ii)-readwith
U.P.
Public
Services
(Removal
Age
Limit
for
Promotion)
Rules
1975
Rule-2Promotion
on
Post
of
Seench
Parvekshak-juniors promoted, but claim
of Petitioner rejected as rossed 45 yearswhile
by
letters
dated
27.03.2010
Superintendent Engineer directed the
1 All] Mohd. Azam Khan V. State of U.P.Through Secy. Deptt. of Irrigation Lko. & others

131
candidate should not be more than 45
years-contrary to rules -provisions of
Rule 2 of Rule 75 having overriding
effect-petitioner-held
eligible
for
promotion-order
impugned
Quashedwith consequential directions.

Held : Para 13 and 14

On examining the controversy and legal
issue in the present writ petition, this
Court is of the considered view that in
view of the provisions of Uttar Pradesh
Public Services (Removal of Age-Limit
for Promotion) Rules, 1975, no person,
who is otherwise eligible for promotion
under
State
Government,
can
be
deprived from promotion merely on
account of any upper age limit, as by
means of these rules and all other rules
and order imposing any upper age limit
for promotion to any service or post have
been rescinded.

In
the
result,
the
order
dated
27.03.2010, passed by the opposite
party no.3, contained in Annexure-5 to
the
petition
and
the
order
dated
02.12.2011 passed by the opposite party
no.4, contained in Annexure-1 to the
writ petition, are hereby quashed. The
opposite party no.4 is hereby directed to
examine the claim of the petitioner in
the light of observations made herein
above, within a period of two months
from the date of receipt of a certified
copy of this order.
Case law discussed:
2010 (1) LBESR, 665

## Text

130 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

is also to the same effect. This Court held as
follows:-

"It is now well settled that even if the
voluntary retirement notice is moved by an
employee and gets accepted by the authority
within the time fixed, before the date of
retirement is reached, the employee has
locus poenitentiae to withdraw the proposal
for voluntary retirement. The said view has
been taken by a Bench of this Court in the
case of Balram Gupta versus Union of
India."

15. In Nand Keshwar Prasad versus
Indian Farmers Fertilizers Cooperative
Ltd. & Ors. [(1998) 5 SCC 461], in
paragraph 11, the Apex Court reiterated that
it is open to the employee concerned to
withdraw letter before the date indicated in
the notice of voluntary retirement.

16. In Power Finance Corporation
Ltd. versus Pramod Kumar Bhatia
[(1997) 4 SCC 280] the Apex Court went a
step further and observed thus:-

"It is now settled legal position that
unless the employee is relieved of the duty,
after acceptance of the offer of voluntary
retirement or resignation, jural relationship
of the employee and the employer does not
come to an end."

17. Considering the well settled
position of law, we are of the view that
though there is discretion with the
respondent not to permit the employee to
withdraw his notice of voluntary retirement
as provided under the Regulation but that
discretion needs to be exercised only if
there are cogent and valid grounds available
with the Department. In absence of any
valid and cogent grounds available and
without assigning any reasons worth the
name, the respondent-Corporation, in the
present case, could not have refused
permission to the petitioner to withdraw his
notice of voluntary retirement.

18. For the reasons aforesaid, the writ
petition is allowed, the impugned order
dated 2.2.2012 (Annexure-1) passed by the
Chairman-Cum-Managing
Director
is
hereby quashed. The petitioner shall be
deemed to be in service and shall be
allowed to function on the post in question.
However, it will be open for the authorities
to consider the application for withdrawal of
notice sent by the petitioner in light of the
observations made hereinabove, if they so
desire.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.02.2012

BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA,J.

Service Single No. - 378 of 2012

Mohd. Azam Khan

 ...Petitioner
Versus
State of U.P.Through Secy. Deptt. of
Irrigation Lko. & others ...Respondents

Counsel for the Petitioner:
Sri Abdul Moin
Sri Abhinav N.Trivedi

Counsel for the Respondents:
C.S.C.

Irrigation
Department
Service
Rules
1954-Rule
8(ii)-readwith
U.P.
Public
Services
(Removal
Age
Limit
for
Promotion)
Rules
1975
Rule-2Promotion
on
Post
of
Seench
Parvekshak-juniors promoted, but claim
of Petitioner rejected as rossed 45 yearswhile
by
letters
dated
27.03.2010
Superintendent Engineer directed the
1 All] Mohd. Azam Khan V. State of U.P.Through Secy. Deptt. of Irrigation Lko. & others

131
candidate should not be more than 45
years-contrary to rules -provisions of
Rule 2 of Rule 75 having overriding
effect-petitioner-held
eligible
for
promotion-order
impugned
Quashedwith consequential directions.

Held : Para 13 and 14

On examining the controversy and legal
issue in the present writ petition, this
Court is of the considered view that in
view of the provisions of Uttar Pradesh
Public Services (Removal of Age-Limit
for Promotion) Rules, 1975, no person,
who is otherwise eligible for promotion
under
State
Government,
can
be
deprived from promotion merely on
account of any upper age limit, as by
means of these rules and all other rules
and order imposing any upper age limit
for promotion to any service or post have
been rescinded.

In
the
result,
the
order
dated
27.03.2010, passed by the opposite
party no.3, contained in Annexure-5 to
the
petition
and
the
order
dated
02.12.2011 passed by the opposite party
no.4, contained in Annexure-1 to the
writ petition, are hereby quashed. The
opposite party no.4 is hereby directed to
examine the claim of the petitioner in
the light of observations made herein
above, within a period of two months
from the date of receipt of a certified
copy of this order.
Case law discussed:
2010 (1) LBESR, 665

(Delivered by Hon'ble D.K.Arora,J. )

1. By means of present writ petition,
the petitioner is seeking a writ of
certiorari for quashing the order dated
02.12.2011, passed by the opposite party
no.4, contained in Annexure-1 to the writ
petition, rejecting the claim of the
petitioner for promotion on the post of
Seench Paryavekshak on the ground that
the petitioner is above 45 years of age on
first January, of the selection year as per
the provisions of Rule 8 (ii) of Irrigation
Department Amin's Service Rules, 1954
(here-in-after referred to as the Rules,
1954), which provides that no person
shall be appointed to the service under the
provisions of Rule 5 (b) unless he be less
than 45 years of age on the first day of
January next following year in which the
selection is made. The petitioner is also
challenging
the
directions
of
the
Superintending Engineer (opposite party
no.3)
addressed
to
the
Executive
Engineer, Faizabad Division, Sharda
Canal, Faizabad for taking steps for
promotion on the post of Seench
Paryavekshak as per the provisions of
Rule 8 (ii) of the Rules, 1954.

2. The facts in brief of the present
case are that the petitioner was appointed
on the post of Seench Pal in Irrigation
department on 12.09.1985. The cadre of
Seench Pal is a divisional cadre and the
seniority of Seench Pal is determined at
divisional level. The Engineer-in-Chief,
Irrigation Department by means of letter
dated
16.09.1996
directed
all
the
Executive Engineers to make promotion
on the post of Seench Paryavekshak/
Amin
according
to
their
seniority.
Accordingly, the seniority list in Faizabad
Canal Division was drawn on 11.08.2006,
in which petitioner's name was placed at
serial no.19. The promotion on the post of
Seench Paryavekshak is to be made in
pursuance to Rules, 1954. Rule 5 provides
two source of recruitment, namely, (i)
directly in accordance with the procedure
laid down in part-V of these Rules, (ii) by
promotion
from
amongst
permanent
Patrols and Tubewell Operators and by
transfer of permanent Munshis recruited
from Patrols in accordance with the
procedure laid down in part-VI of these
132 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Rules. Rules 8 (ii) of the Rules, 1954
prescribed the age and provides that no
person shall be appointed to the service
under the provisions of Rule 5 (b) unless
he be less than 45 years of age on the first
day of January next following year in
which the selection is made.

3. The submission of learned
counsel for the petitioner is that rejection
of the claim of the petitioner is contrary to
Rule as cited by the opposite party no.4 in
the
order
dated
02.12.2011,
which
provides that the age of a person shall not
below the age of 45 years i.e. should not
be less than 45 years of age and, as such,
his case has wrongly been rejected for
promotion by the opposite party no.4 and
on the other hand, S/Sri Gaya Prasad, Ajit
Pratap, Dharam Raj and Dinesh Kumar,
juniors to the petitioner have been
promoted by means of order dated
16.08.2010, whose names find place at
serial nos. 20, 21, 26 and 33 in the
seniority list dated 11.08.2006. The
petitioner feeling aggrieved against his
non-consideration
for
promotion,
approached the opposite party no.4 by
means of representation dated 03.04.2010
claiming
his
promotion
strictly
in
accordance with the seniority list dated
11.08.2006. It is also submitted that on
enquiry, the petitioner came to know that
the opposite party no.4 has not promoted
the petitioner on the ground that he is
above 45 years of age. On further enquiry,
it was revealed that the Superintending
Engineer issued a letter dated 27.03.2010
addressed to the Executive Engineer of
Faizabad Division indicating that for the
purpose of following Rule 8 (ii) of the
Rules, 1954, no person should be
promoted
on
the
post
of
Seench
Paryavekshak, who is above 45 years of
age.

4. Further submission of learned
counsel for the petitioner is that primafacie the letter dated 27.03.2010 is against
the Rules, 1954 and more particularly
Rule 8 (ii), which provides that the age of
person should not be less than 45 years,
whereas in the letter dated 27.03.2010, it
has been indicated that the person to be
promoted as Seench Paryavekshak should
not be more than 45 years of age. It is also
submitted that in view of the provisions of
U.P. Public Service (Removal of Age
Limit for Promotion) Rules, 1975 (herein-after referred to as the Rules, 1975), no
person can be precluded from being
promoted on account of merely being of
upper age limit and the said rules have
overriding effect over all the rules
prescribing the age limit for the purposes
of promotion.

5. It is further submitted that the
issue has been considered by this Court in
the case of Om Prakash and others vs.
State of U.P. and others reported in 2010
(1) LBESR, 665, in which it has been
held that no person who is eligible for
promotion in service under the State
Government can be precluded from being
promoted merely on account of upper age
limit. The petitioner feeling aggrieved
against in action of the opposite parties
approached this Court by means of Writ
Petition No.6557 (S/S) of 2010, Mohd.
Azam Khan vs. State of U.P. & others and
the said writ petition was disposed of by
means of judgment and order dated
06.09.2011 with direction to the opposite
party no.4 to take decision on the
petitioner's representation in light of the
judgment of this Court passed in Om
Prakash and others vs. State of U.P. &
others (supra) within three months after
receipt of a certified copy of this order.
The opposite party no.4 rejected the
1 All] Mohd. Azam Khan V. State of U.P.Through Secy. Deptt. of Irrigation Lko. & others

133
representation of the petitioner by means
of order dated 02.12.2011 indicating
therein that against the judgment of Om
Prakash's case (supra) a special appeal
was preferred, in which no interim relief
was granted and the promotions were
made subject to decision of appeal and the
same is still pending. The petitioner
feeling aggrieved against the rejection of
his claim by means of order dated
02.12.2011 compelled to approach this
Court once again by means of present writ
petition.

6. I have heard learned counsel for
the parties and examine the issue.

7. As the question involved in the
present petition is purely legal in nature,
therefore, with the consent of learned
counsel for the parties, this Court
proceeds to consider and decide the writ
petition at the admission stage itself.

8.

Admittedly,
the
Irrigation
Department Amin's Service Rules, 1954
governs the service conditions and
procedure for appointment on the post of
Seench Paryavekshak. The Rule 5 (b) of
Rules, 1954 provides as under:-

"(a)
By
direct
recruitment
in
accordance with the procedure laid down
in part-V of these Rules.

(b) By promotion from amongst
permanent Patrols, Tubewell Operators
and by transfer of permanent Munshis
recruited from patrols in accordance with
the procedure laid down in part-VI of
these Rules."

Rule 8 (ii) of Rules, 1954 prescribes
the age and since the present controversy
is involved with respect to the promotion.
The Rule 8 (ii) is relevant for determining
the present controversy. Rule 8 (ii) of
Rules, 1954 provides as under:-

"8 (ii) no person shall be appointed
to the service under the provisions of Rule
5 (b) unless he be less than 45 years of
age on the first day of January next
following year in which the selection is
made."

9. From plain reading of Rule 8 (ii),
it is evident that a person claiming
promotion on the post of Seench
Paryavekshak should be less than 45 years
of age on the first day of January next
following year in which selection is made.
Meaning thereby, the candidate should
not be above 45 years of age. In this
background, the claim of the petitioner
has been rejected being above 45 years of
age.

10. Learned counsel for the
petitioner
stress
that
the
State
Government in exercise of powers under
proviso to Article 309 of the Constitution,
has framed the Uttar Pradesh Public
Services (Removal of Age Limit for
Promotion) Rules, 1975, which provides
that no such person shall be precluded
from being promoted on account of
merely of any upper age limit and these
rules also have overriding effect, as such,
the petitioner's claim for promotion
cannot be ignored. The U.P. Public
Service (Removal of Age Limit for
Promotion) Rules, 1975 reads as under:-

"1. Short Title and commencement.
(i) These rules may be called the Uttar
Pradesh Public Services (Removal of
Age-Limit for Promotion) Rules, 1975.
134 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

ii) They shall come into force at
once.

2. Upper age limit not be preclude
promotion- No person otherwise eligible
for promotion in substantive, temporary
or officiating vacancies for any service is
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."

11.

This
issue
came
for
consideration before this Court in Writ
Petition No.5593 (S/S) of 2004 and while
examining the rules of 1954 Rules, the
governing cadre of Seench Paryavekshak,
examined the applicability of U.P. Public
Services (Removal of Age-Limit for
Promotion) Rules, 1975 framed under
Article 309 of the Constitution and held
that these rules have overriding effect.

12. The similar controversy was
considered by this Court in the case of
Om Prakash and others vs. State of U.P.
& other (supra). The learned Judge while
examining the issue framed the question
"whether the petitioners have rightly been
denied promotion on the ground that they
were over age, being above 45 years of
age." and while examining the Uttar
Pradesh Public Services (Removal of
Age-Limit for Promotion) Rules, 1975
this Court pleased to observed in paras-14
and 15 as under:-

"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. 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 27.09.1975 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 27.09.2004 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
16.12.1990 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
1 All] State of U.P. V. Ram Vriksha and others

135
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 tow 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."

13. On examining the controversy
and legal issue in the present writ petition,
this Court is of the considered view that in
view of the provisions of Uttar Pradesh
Public Services (Removal of Age-Limit
for Promotion) Rules, 1975, no person,
who is otherwise eligible for promotion
under State Government, can be deprived
from promotion merely on account of any
upper age limit, as by means of these
rules and all other rules and order
imposing any upper age limit for
promotion to any service or post have
been rescinded.

14. In the result, the order dated
27.03.2010, passed by the opposite party
no.3, contained in Annexure-5 to the
petition and the order dated 02.12.2011
passed by the opposite party no.4,
contained in Annexure-1 to the writ
petition, are hereby quashed. The opposite
party no.4 is hereby directed to examine
the claim of the petitioner in the light of
observations made herein above, within a
period of two months from the date of
receipt of a certified copy of this order.

15. Accordingly, the writ petition is
allowed. No order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.02.2012

BEFORE
THE HON'BLE AMAR SARAN,J.
THE HON'BLE RAMESH SINHA,J.

Government Appeal No. - 445 of 2011

State of U.P.

 ...Petitioner
Versus
Ram Vriksha and others ...Respondents

Counsel for the Appellants:
Sri Desh Ratan Chaudhary (G.A.)

Counsel for the Respondents:
..................................................

Criminal
Appeal-against
acquittaloffence under Section 498-A, 304-B, 201
I.P.C.-acquittal
on
ground-none
of
prosecution witnesses-named as inquest
witnesses-crimination
by
police
as
unknown dead body-accused produced
Dr. Ram Sakal Singh who disposed the
deceased was suffering from cholera-DW
2 performed last rites in presence of
informant as well as accused persons
and other relatives-marriage Factum not
proved by producing marriage cardconsequentially
allegation
of
dowry
demand disbelieved-such findings can
not
be
said
to
be
perverse
or
unreasonable-Application
for
lese
to
appeal rejected.

Held: Para 6

Considering
the
totality
of
the
circumstances of the case, we are
satisfied that the grounds for acquittal
mentioned by the trial Court cannot be
said to be perverse or unreasonable. It is
well settled law that evenwhere two
views are possible, the view taken by the
trial Court should not normally be
interfered with if the view taken is not
highly
improbable
or
unreasonable.
Hence no interference is called for in the