Shiv Dayal Dabra vs State of Haryana

V.S. Aggarwal, J.—Petitioner Shiv Dayal Dabra and others have invoked Articles 226 and 227 of the Constitution of India seeking quashing of Rule 5(ii) of the Haryana Excise and Taxation Department (Group B) Service Rules, 1988 (for short ''the Rules'') and for a direction to the respondents to grant the necessary consequential reliefs to the petitioners.

Therelevant facts allegedare that petitioner No. 1 Shiv Dayal Dabra was born on 15.3.1941, He crossed the age of 54 years on 15.3.1995. He is a Graduate. He had joined the ministerial service on 9.3. I960 and was promoted as Excise Inspector on 3.4.1975. Petitioner No. 2 Lajpat Rai was born on 19.4.1943. He crossed the age of 54 on 19.4.1997, He joined the ministerial service on 4.4.1972. He is a Graduate. He was promoted as Excise Inspector on 19.9.1986. Petitioner No. 3 S.C. Aggarwal was born on 1.4.1944. He crossed the age of 54 years on 1.4.1998. He is a Graduate and joined the ministerial service 22on 31.12.1961. He was promoted as Taxation Inspector on 13.5.1992.

The petitioners claim that they were entitled to be promoted in 33-1/3% quota meant for Excise and Taxation Inspectors and the quota meant for ministerial staff. Their grievance is that ministerial staff as well as the Excise Inspectors and Taxation Inspectors promoted from the ministerial staff are disentitled to be considered for promotion as Asstt. Excise and Taxation Officer if they crossed the age of 54 years. No such age limit has been fixed for direct recruits who joined as Excise Inspectors. Thus, Rule 5(ii) of the Rules referred to above is unconstitutional. Reference is also made to the case of D.S. Pathania who was promoted as Assistant Excise and Taxation Officer though the claim of petitioner No. i is that he is senior to D.S. Pathania.

In the reply filed, the petition as such is contested. It has been pointed that petitioner No. 2 is not a Graduate. Before a person can be promoted as Assistant Excise and Taxation Officer, he has to be a Graduate and, therefore, petitioner No. 2 cannot file the petition. So far as the case of D.S. Pathania is concerned, it was pointed that he was working as Assistant Excise and Taxation Officer. He was not promoted as Excise Inspector but was promoted as Taxation Inspector on 31.1.1986 instead of 13.6.1975. He fulfilled all the necessary conditions. It was pointed that Rule 5(ii) of the Rules is not illegal or ultra vires because it has been the case of the respondents that lien of the petitioners rests with the ministerial staff and if they seek promotion for quota reserved for ministerial staff, then Rule 5(ii) of the Rules comes into play. If they seek promotion from normal side for getting available for promotion of Excise/Taxation Inspector, then no age bar is prescribed.

Before we proceed further, we deem it necessary to refer to the relevant Rule connected with the present controversy. Rule 5(ii) which is under challenge reads :-

"5(ii) No person shall be appointed as Assistant Excise and Taxation Officer by promotion amongst Assistants or Senior Scale Stenographers if he is more than 54 years of age on the 1st day of January immediately before the day on which the names are considered for appointment."

It is also not in controversy that there is a quota for promotion to the post of Assistant Excise and Taxation Officer which is as under :-

Direct recruits 33-1/3% Taxation Inspectors 50% Excise Inspectors 10% Ministerial Staff 6-2/3% 6. Learned counsel for the petitioners contends that this age limits of 54 years imposed under Rule 5(ii) of the Rules is arbitrary and discriminatory. According to him it discriminates between the Inspectors, particu- larly from those who are promoted from Assistants and Senior Scale Stenographers and there is no nexus with the object to be achieved by fixing such an age limit.

Our attention has been drawn towards the deci-sion of the Supreme Court in the case of Indravadan H. Shah Vs. State of Gujarat and Another, . The validity and vires of Rules 6(4)0) and Rule 64(iii)(a) of the Gujarat Judicial Service Recruit-ment Rules were under consideration. The appellants before the Supreme Court had challenged the Rules by virtue of which a person could not be appointed as Assistant Judge if he had reached the age of 48 years before a specific period. On behalf of the State, it had seen pointed that the rationale underlying the age restriction for recruitment to the post of Assistant Judge is that the Assistant Judges should have sufficient number of years left, before they reach the age of superannuation. The Supreme Court held that Rule to be ultra vires and unconstitutional holding :-

"There is no nexus to the object sought to be achieved by introducing the age restriction as regards the promotion by appointment to the post of Assistant Judge from amongst the members of the Gujarat Judicial Service (Junior Branch), as provided in Rules 6(4)(i) and 6(4)(iii)(a) of the said rules. But in respect of appointment to the higher post of a District Judge by promotion from amongst the members of the Junior Branch who have served as Assistant Judges, no such restriction of age has been provided in Rule 6(2)(i)(a) and (b) of the said reasonableness for introduction of this age bar in regard to appointment by promotion to the post of an Assistant Judge. The rule, is, therefore, arbitrary and it violates the salutary principles of equality and want of arbitrariness in the matter of public employment as guaranteed by Articles Hand 16 of the Constitution."

Thereafter, the Supreme Court further added :-

"We have already stated hereinbefore that the provisions of Rules 6(4)(i) read with 6(4)(iii)(a) are irrational, arbitrary and unreasonable inasmuch as there is no nexus to the object sought to be achieved by introducing the age restriction in regard to appointment of Assistant Judge by promotion from amongst members holding posts of Civil Judges (Junior Division) and those in the cadre of Civil Judges (Senior Division) whose names have been entered in the select list. We have also held that though the post of Assistant Judge as well as the post of District Judge belong to the Senior Branch of Gujarat Judicial Service, yet in the higher cadre of District Judge no such age bar has been introduced. Moreover, as has been stated by the learned counsel appearing on behalf of the High Court of Gujarat that this rule regarding age restriction which was originally introduced in the recruitment rules of Judicial Services in the bilingual State of Bombay has subsequently been deleted and discontinued in the relevant Recruitment Rules of Maharashtra Judicial Service, it is curious that this archaic, unrea- sonablc and irrational rule which is ex facie arbitrary and discriminatory has been allowed to continue in the Gujarat Judicial Service Recruitment Rules, 1961 as amended up to 1979."

Of course the Supreme Court by way of abundant caution added that judgment should not be construed to different grades of other services like armed forces, air force and naval force etc.

Applying the said principle to the facts of the present case, it is obvious that out of the present Rule 5(ii) which prescribes the age of 54 years for promotion to Assistant Excise and Taxation Officer from Assistants and Senior Scale Stenographers is arbitrary and illegal. There is no object to be achieved by fix ing such an age limit. Once the framers of the Rules have found that an Assistant or Senior Scale Stenographer can be appointed or is fit to be appointed as Assistant Excise and Taxation Officer, then fixing of the age limit has no connection with it. After all he still has four years to serve and, therefore, we ware constrained to observe that by fixing such an age limit, there is no nexus with the object to be achieved that may be in the mind of the framers of the Rules that the said person should work for sufficiently long time.

There is another way of looking at the matter. One D.S, Pathania had joined like the petitioners on 10.9.1971. He was junior to petitionerNo. 1 and joined on 9.3.1960. Thus, petitioner No. 1 was senior to him. Petitioner No. 1 even became Excise Inspector even before D.S. Pathania. There is logic in the argument of the petitioners that they have been ignored while D.S. Pathania has been promoted. Their contention is that in this process, discrimination is being practised between the Inspectors who are direct recruits and those who are promoted from clerical cadre etc. If there was no discrimination, there is no ground as to why the petitioners have not been so promoted (provided they are otherwise suitable). Thus, indirectly what the petitioners are alleging, seemingly is being practising and the petitioners are being ignored while the direct recruits who joined the service as Inspectors are still being promoted.

So far as petitioner No. 2 is concerned, he is not a Graduate and is not eligible. His petition must fail. We have found that Rule 5(ii) of the Rules which fixes the age limit of 54 years for promotion to the post of Assistant Excise and Taxation Officer by promotion from amongst Assistants and Senior Scale Stenographers is arbitrary and consequently illegal.

For these reasons, the writ petition is allowed. It is directed that if there is no legal hurdle, the names of petitioners 1 and 3 should be considered on promotional post claimed with all consequential benefits. It is further held that Rule 5(ii) of the Rules is discriminatory and arbitrary and should have thus no force of law. No order as to costs.

Writ petition allowed.