IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 466 of 2004 (S/S) (Old No. 3388 of 1999) Charan Singh, S/o Late Sri Malkhan Singh, R/o Village-Prithvipur, Post Gajsthal, Moradabad, Now District-Jyotiba Phule Nagar ……….…..Petitioner Versus 1. State of U.P. through the Secretary, Irrigation Department, Government of U.P., Civil Secretariat, Lucknow (Now Uttarakhand) 2. Chief Engineer, Uttarakhand, Irrigation Department, Uttar Pradesh (Now Uttarakhand) Yamuna Colony, Dehradun 3. Chief Engineer, Yamuna Ghati Pariyojna, Irrigation Department, Dehradun 4. Executive Engineer, Khara Pariyojna Nirman Khand-I, Dak Paththher, Dehradun. ……………..Respondents Mr. Tapan Singh, Advocate, holding brief of Mr. Lok Pal Singh, Advocate, for the petitioner. Mr. N.P. Sah, Standing Counsel, for the respondents. Hon'ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought writ in the nature of mandamus commanding 2 the respondents to consider the candidature of the petitioner, a Class-IV employee, to the post of Class- III. A further writ has been sought in the nature of certiorari quashing the order dated 23.10.1999 (copy Annexure-8 to the writ petition) declining the promotion on the ground that the petitioner is over aged. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit, on record. 3. Brief facts of the case are that the petitioner is a Class-IV employee with the respondent-Department, who entered in service in the year 1979. He is a member of Scheduled Caste and has passed Intermediate examination. It is pleaded in the writ petition that the petitioner was entitled to promotion from Class-IV to Class-III category under the reserved quota as per the Government Order dated 31.08.1982 and Government Order dated 28.09.1995. It is further pleaded that the petitioner’s service record is satisfactory. It has been stated in the writ petition that the petitioner appeared in the departmental examination in the year 1988 and stood at Serial No. 4 in the merit, but still he was denied promotion on the ground that he is over age for the promotion. 3 4. In the counter affidavit filed on behalf of the respondents, reliance has been placed on the Government Order No.37/1/1969-Personnel-2, dated 21st August 1970 read with Government Order No.37/1/1969-Niyukti, dated 1st January 1970 and it is pleaded that after completion of 45 years of age the petitioner is not entitled to the promotion from Class- IV post to Class-III post. 5. On behalf of the petitioner attention of this Court is drawn to Rule 2 of the Uttar Pradesh Public Service (Removal Of Age-Limit For Promotion) Rules, 1975, which is notified vide Notification No. 42/11,66- Appointment-3, dated September 9, 1975, which reads as under:- “2. Upper age limit not to preclude promotion- No person otherwise eligible for promotion in substantive, temporary or officiating vacancies for any service or post under the State Government shall be precluded from being so promoted on account merely of any upper age-limit.” 6. In view of the aforesaid provision contained in Rule, the impugned order passed by the respondents appears to be illegal, and the petitioner has wrongly 4 been denied his right for promotion to the post of Class-III. 7. Therefore, the writ petition is allowed. Impugned order dated 23.10.1999 (copy Annexure-8 to the writ petition), passed by the respondent No.3 is hereby quashed. Respondents are directed to consider the case of the petitioner for promotion from the post of Class-IV to Class III, within three months of the date certified copy of this order is produced. (Urgency Application No.3387 of 2009 stands disposed of). (Prafulla C. Pant, J.) 16.12.2009 NS