JUDGMENT
Sudhir Agarwal, J.
1. Sri Ashok Khare, learned Senior Advocate assisted by Sri Amit Srivastava for the petitioner, learned Standing Counsel for respondent No. 1, Sri S.P. Shukla for respondents No. 2, 3 and 4 and Sri P.P. Chaudhary for respondent No. 5.
2. The petitioner aggrieved by order dated 31.8.2005 (Annexure-11 to the writ petition) passed by respondent No. 4 cancelling his appointment and appointing respondent No. 5 on the post of draftsman in the pay scale of Rs. 4000-100-6000 has filed this writ petition under Article 226 of the Constitution of India.
3. The facts giving rise to the present writ petition, in brief, are that among other posts, one post of draftsman, in the pay-scale of Rs. 4000-6000/-, had been advertised in daily newspaper ‘Rashtriya Sahara’ by Zila Panchayat, Sant Kabir Nagar on 23 March, 2005. The post of Draftsman was advertised under the general category, i.e. unreserved. The petitioner, respondent No. 6 and others applied for the said post and after holding interview, the appointment letter was ultimately issued to the petitioner on 6.6.2005.
4. It appears that Zila Panchayat in the meantime also referred the matter to the State Government making enquiry as to whether ‘relaxation of age’ would be available to reserved category candidates since respondent No. 5 belong to the category of ‘Other Backward Class’ and aged about 36 years, was overage, on the cut off date. The Slate Government by letter dated 7th July 2005 clarified that reserved category-candidates are entitled to be considered upto upper age limit of 40 years n view of Government Order dated 4.11.2004. Although respondent No. 5 had secured highest marks, but as he was found overage on the cut off date, he was not selected and the petitioner was appointed, but, in view of clarification issued by Slate Government, respondent No. 5 was appointed and appointment of the petitioner was cancelled by the impugned order.
5. Sri Khare, learned Senior Counsel appearing for the petitioner has contended, firstly, that the post in question was not reserved and, therefore, no benefit of relaxation of age was admissible to respondent No. 5. Secondly. he contended that under Rule 10 of U.P. Zila Parishad Service Rules 1970 (hereinafter referred to as 1970 Rules) read with Appendix, schedule-A, item 28, minimum and maximum age for direct recruitment in respect to the post of draftsman is 18 to 30 years and even if five years relaxation is made available to a reserved category candidate, that would not go beyond 35 years. Since respondent No. 5 was already above 36 years on the cut off date, he was in any case overage and could not have been appointed. Therefore, relaxation of age to respondent No. 5 vide Government Order dated 4.11.2004 had no concern in this matter.
6. Supporting the order of appointment, learned Standing Counsel has filed counter affidavit on behalf of the State authorities, referring to the Government Order dated 21.1.2000. It is contended that maximum age was altered in respect of Government Servants for direct recruitment, from 32 years to 35 years by amending U.P. Recruitment in Services (Age Limit) Rules 1972 (hereinafter referred to as “1972 Rules). On the basis of said Government Order. respondent No. 5 is eligible for direct recruitment for the post of draftsman. It is further contended that by Government Order dated 4.11.2004, it was clarified that previous government orders issued by the Government were applicable to the employees of Zila Panchayat also and, therefore, the minimum and maximum age for direct recruitment for the post of draftsman in question is 18 to 35 years. It is relaxable for 5 years in respect of reserved category candidates. Respondent No. 5 is a reserved category candidate and he was entitled to be considered for recruitment till the age of 40 years.
7. Counter affidavit has been filed on behalf of respondents No. 2 to 4 wherein it has been averred that in view of Government Order dated 4.11.2004 the age limit for recruitment of the employees of Zila Panchayat stood enhanced to 35 years and it was relaxable up to 40 years for reserved category candidates. Therefore, the order passed by respondent No. 5, appointing respondent No. 5 is absolutely correct. It is also contended that since appointment of the petitioner was not valid, while passing the impugned order no notice was required to be issued to the petitioner. Lastly it is contended that petitioner has an alternative remedy of appeal under Rule 41(3) of 1970 Rules before the Commissioner and the writ petition is liable to be dismissed on the ground of alternative remedy.
8. Respondent No. 5 has filed separate counter affidavit stating that upper age limit is 35 years for reserved category candidates. The maximum age for candidates in all direct recruitments has been enhanced to 35 years by amendment of Rule 2 of 1972 Rules and, therefore, for the post of draftsman the age limit of 35 years is relaxable for 5 years for reserved category candidates and in these circumstances, appointment of respondent No. 5 by impugned order is absolutely correct. Sri P.P. Chaudhari, Advocate, appearing on behalf of respondent No. 5 contended that since rule in respect of Zila Panchayat has been framed by State Governement under Section 237 of the Uttar Pradesh Kshettra Samitis and Zila Parishads Adhiniyam 1961 (hereinafter referred as ‘1961 Act’), therefore, it is a rule framed by the Governor. 1972 Rules having been given overriding effect over all the rules and, therefore, 1972 Rules shall override Rule 10 of 1970 Rules also and. therefore, the maximum age for recruitment for the post of draftsman in Zila Panchayat would be 35 years not 30 years. In support, he has placed reliance upon the Apex Court’s decision in State of U.P. v. Jalal Uddin and Ors. .
9. Heard learned Counsel for the parties and perused the record.
10. So far as the first question as to whether respondent No. 5 could have been given benefit of relaxation of age against general vacancy notified for the post of draftsman, is concerned, in my opinion, submission of learned Counsel for the petitioner has no force and is liable to be rejected. Relaxation of age is not like reservation of post/vacancy but it is a kind of concession which is admissible to candidates of reserved category. In exercise of powers under article 16(4) of the Constitution, competent authority is entitled to give concessions or reservation to the candidates who belongs to certain classes. This aspect has already been considered by Division Bench in the case of Sanjeev Kumar Singh v. State of U.P. and Ors. 2007 (2) ALJ 86 and it has been held;
39. This leads us to the manner, mechanism and inter relationship of various concessions and reservation, which may operate together or individually, as the case may he. It cannot be doubted that any concession provided by the competent authority to achieve the goal under article 16(4) without keeping a seat reserve for a backward class of citizen is permissible. Simultaneously without providing any concession it may make provision for reservation of seat. The third contingency would be where certain concessions and benefits are provided as also seats are reserved and both may operate together or separately, as the case may be. In the cases where the concessions and reservation operate separately there is no difficulty in giving effect to since in such a case the question of adjustment or application of Section 3(6) of the Act of 1994 to the reserved candidates availing both would not arise. The grievance germane where availing concession, a backward class candidate competes, and, if secure marks more than general category candidates, claims unreserved seat instead of a reserved seat.
40. At this stage, it would be prudent to notice when certain seats are reserved, it would not result in making unreserved seats compartmentalized for general category candidates i.e. unreserved candidates. There is no reservation for general category candidates. In other words we can say, when certain seats are reserved, a reserve category candidate in addition to reserve seats can always compete for unreserved seats. The unreserved seats are available to all the candidates who participate in the selection irrespective of category for which they belong but a reserve seat is available only to the category of the candidate to which such reserve seat is meant for. To illustrate, if out of 100 seats, 27 are reserved for O.B.Cs, IS for S.C. and 2 for S.T candidates, it would mean that an O.B.C. candidate would be able to compete against 27 seats reserved for O.B.C. as well as remaining 53 unreserved seats. Similarly a S.C. candidate would he able to compete against IS seals reserved for S.C. as well as remaining 53 unreserved seats, and a S.T. candidate would be able to compete against 2 seats reserved for S.T. as well as remaining 53 unreserved seals. On the contrary a general category candidate would be able to compete only against 53 unreserved seats. The zone of consideration, therefore, against the unreserved seats is much wider and extend to 100% of the candidates who participate in the selection but it is not so far reserved seats. The only rider would be, if in the selection process, the test of assessment, merit etc. is different qua unreserved seats and reserved seats, and the candidates belonging to reserved seats en bloc are considered, separately at any stage, than such difference in standard or criteria or indicia having a material bearing in the assessment of merit and influence the open competition and in such case the reserve category candidate may not compete for unreserved seats on account of variation in the standard and not otherwise. It is true, and as already observed above, a reasonable balance has to struck between the rived claim of respective categories.
51. It is true that interpretation of statute would not depend on the understanding of the executive but the fact remains that on and after the enforcement of Act of 1994, in the State of U.P., Section 33(6) is being implemented by giving adjustment to reserve category candidates against unreserved seats provided they are selected in open competition with general category candidates without availing any concession or relaxation in the standard of selection which does not include relaxation in age or fee. The State therefore, has not treated relaxation in age and fee as relaxation in the standard of selection and the crucial question up for consideration before us whether such relaxation can deprive a reserve category candidate denuding his status as a candidate competing in open competition with general category candidate when all other things are equal except the fact that such candidate has availed concession in fee and/or age limit. Having given our very serious, indepth thoughts to the question, we are of the view that relaxation in age and fee can not be treated to be a relaxation in standard of selection and shall not deny a reserve category candidate’s selection in open competition with general category candidates. As we have observed the term “reservation” comprises various kinds of concession, relaxation etc. but Section 8(1) of Act of 1994 is confined to only two kinds of relaxation/concession namely “concession in fee” and “relaxation in upper age limit”. Sub-section (2) of Section 8 however provides that if any Government order is in force on the date of commencement of die Act, providing any concession, relaxation including concession in fee for any competitive examination, interview and relaxation in upper age limit relating to reservation in direct recruitment or promotion which are not inconsistent with the provisions of the Act, shall continue to be applicable till they are modified or revoked as the case may be. We are informed that presently and for selection in dispute, only concession in fee and relaxation in upper age limit and no other concession or relaxation is available to the reserve category candidates specified under Section 3(1) of the Act of 1994.
52. …In other words we can say that concession in fee or relaxation in upper age limit are the provision not concerned with the process of selection i.e. open competition itself but are the provisions pertaining to eligibility i.e. to bring in a candidate in the zone of consideration. Once a person is included in the zone of consideration, he is entitled to participate in the open competition irrespective of difference in the eligibility qualification. Further, if on account of his identity belonging to particular category, any procedural difference is observed in the selection itself in that case only, such an adjustment under Section 3(6) of Act of 1994 would not be applicable and not otherwise. To elaborate our view, in the case in hand, the identity of individual candidate whether general, scheduled caste, scheduled tribe or O.B.C. has no relevance in the entire process of selection and it is only when the final select list is prepared, selection qua respective category of vacancies would be made. For example, in the present case, all the candidates, securing 50% marks and more in the preliminary qualifying written test participated in the physical test irrespective of the number of candidates qualifying against individual category. The standard of selection is common to all. Similarly in the physical test also all the candidates irrespective of their category, securing at least 50% marks qualify and appear in the main written test. Again all the candidates who secured 40% and above in main written test were declared successful in written test and thereafter, all of them appeared in interview. It is only after interview, a final merit list on the basis of marks secured in main written test and interview is prepared and thereafter the final select list is prepared applying reservation. At any state prior thereto, the candidate’s identity had no relation or relevance in the process of selection whatsoever. Thus, in our view, ex facie and undoubtedly, at the lime of final select list, Section 3(6) of Act of 1994 would be applicable and if a reserve category candidate has secured marks more than a last general category candidate, he is entitled to be selected against unreserved seat without being adjusted against a reserved seat.
(Emphasis applied)
11. In view of the law laid down by the Division Bench, it is evident that concession in the matter of age, fee, etc. has nothing to do with the factum as to whether the vacancy up for consideration is reserved or unreserved. It is with reference to candidate’s eligibility and procedure for applying for the post. Merely for the reason that a candidate has claimed relaxation in the matter of age, he cannot be denuded of his right to be considered for an unreserved vacancy only on the ground that he belongs to a reserved category and has claimed relaxation of concession in the matter of age, fee, etc. In view of this, the contention of learned Counsel for the petitioner that the post in question being unreserved, respondent No. 5 could not have claimed relaxation in the matter of age available to reserved category candidate, is hereby rejected.
12. Now, I come to the second question as to whether Rule 10 of 1970 Rules without any amendment therein can be said to be overridden by Rules framed under proviso to Article 309 of the Constitution. It is not in dispute that recruitment for the post of draftsman is governed by 1970 Rules. The said Rules have been framed under Section 237 of 1961 Act, as is evident from the following declaration by the Rules framing authority:
In exercise of the powers under Section 237 of the Uttar Pradesh Kshettra Samitis and Zila Parishads Adhiniyam, 1961 (U.P. Act XXXIII of 1961), read with Sub-sections (2) and (4) of Section 39, Sections 40 and 41, Sub-section (1) of Section 43. Section 44, Sub-section (2) of Section 46 and Section 53, the Governor is pleased to make the following rules after their previous publication with Notification No. 5834-B/XXXIII-9-R-62, dated January 3, 1968 as required under Sub-section (2) of Section 237 of the said Adhiniyam:
13. Rule 10 of 1970 Rules provide for age for recruitment and reads as under:
10. Age- A candidate for direct recruitment to any post shown in Column of Schedule ‘A’ must have attained the minimum age shown in column?, and must not have attained the maximum age shown in Column 6 of that Schedule on the first day of January of the year in which, the applications jar recruitment to that post are invited:
Provided, firstly, that the maximum, age-limit shall not be applicable to the officers and servants referred to in Sub-section (1) of Section 46 of the Act and those appointed to the service of a Zila Parishad between the appointed date and the date of coming into force of these rules:
Provided, secondly, that the maximum age-limit for candidates belonging to the Scheduled Castes and ex-servicemen shall be greater by five-years than that prescribed in Column 6 of Schedule ‘A’ for every post:
Provided, lastly, that the maximum age-limit for recruitment to all posts shall be raised by one year in the case of candidates holding a diploma in Social Service recognised by the State Government.
(2) Notwithstanding, anything contained in Sub-rule (1), the age limit may be relaxed by the appointing authority-
(i) in respect of posts which, are to be filled in consultation with, the Commission, on the advice of the Commission;
(ii) in respect, of posts which are to be filled in accordance with, the recommendations of the Chunao Samiti, with, the prior approval of the Commissioner of the Division; and
(iii) in respect of other posts, with the prior approval of the District Magistrate:
Provided that where any age-limit has been made relaxable this fact shall be mentioned in the advertisement, circular or any other notice inviting applications from candidates for recruitment to such, posts.
14. Schedule A, item 28 of 1970 Rules reads as under:
_____________________________________________________________________________________________
S. Designati Scale Qualification for candidates Mi Ma Method Appoin
N. on of post by direct recruitment nim xi of ting
um mu recruit author
age m ment ity
(in age
yea (in
rs) yea
rs)
_____________________________________________________________________________________________
1 2 3 4 5 6 7 8
_____________________________________________________________________________________________
28 Draftsman 150-7- (i) A certificate of having 18 30 By Adhya-
(qualified) 185-EB- passed the Draftsman Class direct ksh
8-270- Examination of the recruit
EB-10- Engineering University of m-ent
300 Roorkee; or
(ii) A certificate of having
passed the Architectural
Design and Draftsman Class
Examination of the
Government School of Arts
and Crafts, Lucknow; or
(iii) A certificate of having
passed the Draftsman course
from the Banaras Hindu
University; or
(iv) A certificate of having
passed the course of
Draftsman from any
Industrial Training Institute
of the State Government; or
(v) A certificate of having
passed an Examination
which has been recognised as
equivalent to one of the
above examinations.
_____________________________________________________________________________________________
15. It is not disputed that till date there is no amendment in 1970 Rules altering the age of recruitment for the post of draftsman, which is 18 to 30 years. Giving relaxation of 5 years to the reserved category candidates, under Rule 10 read with Schedule-A, item 28 of 1970 Rules, the maximum age would come to 35 years, but the question is when 1970 Rules are applicable to the employees of Zila Panchayat, whether the same can be superseded or affected in any manner by the Rules framed under proviso to Article 309 of the Constitution. 1972 Rules have been framed under proviso to Article 309 of the Constitution. It would be appropriate to reproduce Article 309 as under:
309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with, the affairs of the Union, and for the Governor of a Stale or such person as he may direct in the case of services and posts in connection with the affairs of the Sate, to make rules regulating the recruitment, and the conditions of service of persons appointed to such. services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
16. A perusal of Article 309 and its proviso make it clear that Governor may frame rules only in respect of public servants and not for the employees of Zila Panchayat. A Zila Panchayat is a statutory autonomous body constituted under 1961 Act. The Governor has no power to frame Rules for such employees under proviso to Article 309. The employees of Zila Panchayat cannot be said to be persons appointed to public services and posts in connection with affairs of the Union or of any State. They are the employees of statutory autonomous body constituted under specific legislation and would be governed by the Rules and Regulations framed thereunder, liven in respect to the persons who are appointed to public services and posts in connection with the affairs of the Union or of any State, the power to frame Rules under Proviso to Article 309 is available only so long as the appropriate legislature has not enacted any statute regulating recruitment and conditions of service of such persons but once such an enactment is made, the proviso to Article 309 cannot be resorted to.
17. A similar issue had been considered by the Apex Court in A.B. rishna and Ors. v. State of Karnataka and Ors. , and the Apex Court held that under the scheme of Article 309 of the constitution of India shows once the legislature intervenes to enact a law relating to the condition of service, the power of the executive, including the president or the Governor, is totally displaced under the doctrine of ‘Occupied field.
18. In Subhash Chandra Sharma v. State of U.P. and Ors. (2000) 3 AWC 2367 a Division Bench of this Court held as under:
The provisions of Act 1861 remain in force and are enforceable by virtue of provisions of Article 313 of the Constitution of India and as the field stood occupied by the said statutory provisions and the Government of U.P. had never adopted the Rules, 1972 for filling the vacancies of subordinate police posts, the provisions of the Act 186] will prevail. The proviso to Article 309 of the Constitution empowers the President of India or the Governor of a State to frame Rules etc., for providing the service conditions as transitory in nature if the parliament or the Stale Legislature has not enacted the Rules but the subordinate legislation is not permissible in respect of field already occupied by the statute.
19. In Chandra Prakash Tiwari v. Shakuntala Sliukhi the Apex Court also took the same view and held as under:
That Police Act 1861 is a complete Code insofar as police personnel are concerned service conditions which are referable to the Act are not replaced by general service conditions for other civilian employees under Article 309 of the Constitution of India…. Police Force has a special significance in the administration of State and the intent of the framers of the Constitution to empower the State Government to make Rules therefore, has its due significance rather than being governed under a general omnibus rule framed under Article 309 of the Constitution. When there is a special provision, unless there is a specific repeal of the existing law, question of an implied repeal would not arise…. The police force are to be governed by the provisions of the Police Act and no exception can be taken thereto.
….
On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rule framed under Article 309 should or would also govern the existing special rules concerning the police rules, admittedly, the guidelines as contained in the Government order dated 5.11.1995 have been under and in terms of the provisions of the Police Act. There is special conferment of power for framing of the rules dealt with more fully hereinbefore, which would prevail over any other rules. Since no other rule stands formulated and the Government order of 1965 being taken as the existing rule pertaining to the subject matter presently under consideration with recent guidelines as noted above, its applicability cannot be doubted. Unless the General Rule specifically repeal the effectiveness of the special rules, question of the latter rule becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather an. imaginary repeal. It is now a well settled principle of law for which no dilation is further required that law Courts rather loath, repeal by implication.
Same view was taken by the Apex Court in D.R. Yatlav and Anr. v. R.K. Singh and Anr. and by Full Bench of this Court in Vijay Singh v. State of U.P. 2005(23) LCD 1696.
20. It is not disputed that 1972 Rules provide for maximum age of 35 years in respect to such public servants who are governed by the Rule framing power of the Governor. The said rules have been framed under proviso to Article 309 of the Constitution and, therefore, are not applicable, in my view to the employees of Zila Panchayat. The mere fact that under Section 237 of 1961 Act the rule framing power has been conferred on the State Government and under proviso to Article 309 the rule framing power has been conferred upon the Governor, it cannot be said that the two powers are identical and the rules framed under one provision would apply ipso facto to the other set of the employees. I have, therefore, no hesitation in holding that neither 1972 Rules are applicable for recruitment and conditions of service of employees of Zila Panchayat nor 1972 Rules would override in any manner 1970 Rules. It is not disputed that there is no amendment in 1970 Rules. It has been made in exercise of powers under Section 237 of 1961 Act by the competent rule framing authority, and since the maximum age under 1970 Rules, for the post of draftsman, is still 30 years, after granting five years relaxation to a reserved category candidate, it would come to only 35 years and therefore, respondent No. 5 being above 36 years on the cut-off date prescribed in the advertisement, he was overage and did not fulfil the requisite eligibility conditions and, therefore, could not have been appointed at all. The appointment of the petitioner, therefore, was neither illegal nor contrary to law and respondent No. 5 being overage could not have been appointed in place of petitioner.
21. In the result, the writ petition is allowed. The impugned order dated 31.8.2005 is hereby quashed. It is held that petitioner shall be deemed to be in continuous service. For the purpose of seniority etc., he will be entitled for all consequential benefits but for the period he did not serve the respondents, will not be entitled for any salary. Petitioner shall also be entitled for cost winch is quantified as Rs. Ten Thousand.