Abhay Kumar Gupta vs State Of U.P Thru. Prin. Secy. Pubilc … on 19 August, 2025

Allahabad High Court

Abhay Kumar Gupta vs State Of U.P Thru. Prin. Secy. Pubilc … on 19 August, 2025

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


AFR
 
Neutral Citation No. - 2025:AHC-LKO:48957
 
Court No. - 8
 
Case :- WRIT - A No. - 8533 of 2023
 
Petitioner :- Abhay Kumar Gupta
 
Respondent :- State Of U.P Thru. Prin. Secy. Pubilc Works Deptt. Civil Secrt. Lko. And 2 Others
 
Counsel for Petitioner :- Mr.Sridhar Awasthi
 
Counsel for Respondent :- C.S.C.,Shireesh Kumar,Utkarsh Kumar
 
and
 
Case :- WRIT - A No. - 8779 of 2023
 
Petitioner :- Murad Ahsan
 
Respondent :- State Of U.P. Thru. Prin. Secy. Public Works Deptt. Civil Sectt. Lko And 2 Others
 
Counsel for Petitioner :- Mr.Srdhar Awasthi
 
Counsel for Respondent :- C.S.C.,Shireesh Kumar,Utkarsh Kumar
 
Hon'ble Manish Mathur,J.
 

1. Short counter affidavit filed on behalf of opposite party no.3 is taken on record.

2. Heard Mr. Sudeep Seth, learned senior counsel assisted by Mr. Sridhar Awasthi, learned counsel for petitioners and learned State Counsel for opposite parties.

3. Impleadment application has been filed on behalf of applicants namely Mr. Rajesh Mohan Srivastava and Mr. Adarsh Kumar Gupta which is taken on record.

4. Mr. Sanjay Kumar Srivastava, Advocate and Mr. Shireesh Kumar, Advocate appearing on behalf of the applicants respectively have also been heard in terms of Chapter 22 Rule 5-A of the High Court Rules.

5. Since both the petitions emanate from the same cause of action, they are being heard together and are being decided by means of a common judgement.

6. Petitions have been filed challenging letter dated 19.10.2023 whereby for purposes of recruitment on the posts of Chief Engineers Level-II for the recruitment year 2021-2022, eligibility as per cut-off-date 01.07.2021 has been fixed.

7. Prayer has also been made to include petitioners in the eligibility list for consideration of promotion on the temporary post of Chief Engineer Level-II (Electricals/Mechanical) for the select year 2021-2022.

8. It is submitted that the aforesaid two posts of Chief Engineer Level-II were created by the state government vide order dated 02.12.2021 and are governed by the U.P. Service of Engineers (Public Works Department) (Higher) Rules 1990.

9. It is submitted that Rule 3(i) of the said rules define year of recruitment’ as a period of 12 months commencing from the first day of July of a Calendar year.

10. Learned counsel for petitioners has also drawn attention to Rule 5 of The Uttar Pradesh Service of Engineers (Public Works Department) (Higher) Rules, 1990 to submit that for purposes of recruitment on the post of Executive Engineer and Superintending Engineer, it has been provided that eligibility is required to be seen as on the first day of year of recruitment but the said words on the first day of year of recruitment are conspicuously absent with regard to recruitment on the post of Chief Engineer Level-II, consideration for promotion on which is being claimed by petitioner. He has also adverted to Rule-7 of the Rules of 1990 to submit that determination of vacancies to be filled-in is to be made during the course of year as distinct from the year of recruitment. It is therefore submitted that the impugned order indicating the cut-off-date of 01.07.2021 is not in consonance either with Rule 5 or with Rule 7 of the Rules of 1990.

11. It is also submitted that the aforesaid Rules as have been notified in terms of proviso to Article 309 of the Constitution of India have to be read in the manner prescribed without incorporating any words which have been deliberately omitted. He has placed reliance on judgement rendered in the case of Rohitash Kumar and Ors. vs. Om Prakash Sharma and Ors. (2013) 11 SCC 451.

12. It is also submitted that since the posts in question have been created on 07.12.2021, there was no occasion for the opposite parties to have fixed an eligibility criteria prior even to the creation of the said post.

13. Learned State Counsel placing reliance on the counter affidavit as well as supplementary counter affidavit has submitted that Rule 8 of the aforesaid Rules of 1990 clearly prescribed that eligibility list for purposes of recruitment on the basis of merit for the post of Chief Engineer Level-II is required to be prepared in terms of Uttar Pradesh Promotion by Selection (On Posts Outside the Purview of the Public Service Commission) Eligibility List Rules 1986, and adverts to Rule-2 thereof to submit that the said rules would have primacy over the Rules of 1990 since it has an overriding effect on any other rules or orders. He has also adverted to Rule 4 of the Rules 1986 to submit that in cases of preparation of eligibility list where criteria is merit, as in the present case, it is provided that recruitment is to be made for vacancies occurring during more than one year of recruitment and a separate eligibility list will be prepared in respect of each such year.

14. It is therefore submitted that it is in terms of the Rules of 1986 that the year of recruitment has importance and has been relied upon to issue the impugned order indicating the cut-off date of 01.07.2021 in terms of Rule 3(i) of the Rules of 1990.

15. Learned State Counsel has also adverted to the government order dated 20.11.1993 to submit that the said government order while supplementing the aforesaid rules also prescribes the criteria of year of recruitment which is to be taken into account.

16. He has also adverted to the fact that since petitioner in Writ-A No.8533 of 2023, Abhay Kumar Gupta, was promoted on the post of Superintending Engineer which is the feeding cadre for the post of Chief Engineer, Level-II, only on 31.08.2021, he was ineligible for consideration as on the cut-off-date of 01.07.2021.

17. Similarly, in the case of Mr. Murad Ahsan vs. State of U.P and Ors. petitioner in Writ-A No.8779 of 2023, the said person was promoted on the post of Superintending Engineer on 26.12.2022 and would therefore not be entitled for consideration at all since he obtained the eligibility not even in the year of recruitment in 2021 but in the year of 2022.

18. Mr. Sanjay Srivastava, learned counsel for one of the interveners has also submitted his arguments on the same line and has specifically relied upon Rule-8 of the Rules of 1990 as well as Rule 4 of the Rules of 1986 to submit that it is in fact the year of recruitment as defined in Rule 3 (i) of the Rules of 1990 as per which eligibility is required to be determined and since petitioners did not fall within the zone of eligibility as on the cut-off-date, they have no right to challenge the impugned order.

19. Mr. Shireesh Kumar, learned counsel for the other intervener while reiterating the same arguments has also submitted that the purpose of indicating the cut-off-date is salutary in as much as the vacancies are required to be determined in a particular year of recruitment and for which purpose, future vacancies also occurring in the year of recruitment, are also required to be determined and for which purpose the cut-off-date of 1st July of the year of recruitment has been prescribed so as to avoid any confusion regarding the normal course of vacancies occurring in the year of recruitment. It is therefore submitted that irrespective of the fact that Rule 5 (iii) of the Rules 1990 does not prescribe eligibility as on the first day of year of recruitment, the same is required to be read in order to give effective purpose to the recruitment and for preparation of eligibility list in terms of Rules of 1986.

20. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident that impugned order has prescribed the cut-off-date of 01.07.2021 for purposes of recruitment on the post of Chief Engineer Level-II for the recruitment year 2021-2022.

21. As per submissions made by learned counsel for opposite parties, the said cut-off-date is directly relatable to Rule 3 (i) of the Rules 1990 which defines year of recruitment as a period of 12 months commencing from the first day of July of Calendar year.

22. It is also evident from their submissions that the same is sought to be seen in terms of Rule 4 of the Rules of 1986 as well as the government order dated 20.11.1993.

23. It is also evident from perusal of Rule 5 of the Rules of 1990 that for the purposes of recruitment on the posts of Executive Engineer and Superintending Engineer, eligibility criteria has been prescribed as on the first day of year of recruitment.

24. However, the said wordings are conspicuously absent with regard to recruitment on the post of Chief Engineer Level-II. Rule 7 of the Rules of 1990 also pertains to determination of vacancies and indicates that the appointing authority shall determine the number of vacancies to be filled in during the course of year. Here again, the important wordings are vacancies to be filled in during the course of year and not in the year of recruitment.

The relevant provision of Rules of 1990 are as follows:-

5. Source of Recruitment. Recruitment to the various categories of posts in the service shall be made from the following sources namely-

(i) Executive Engineer Civil, Electrical and Mechanical By promotion from amongst the substantively appointed Assistant Engineers in the Civil, Electrical and Mechanical branches respectively, who have completed seven years service on the first day of the year of recruitment,

(ii) Superintending Engineer Civil, Electrical and Mechanical. By promotion from amongst the substantively appointed Executive Engineer in the Civil, Electrical and Mechanical branches respectively, who have completed at least fifteen years total service (including at least six years service as Executive Engineer) on the first day of the year of recruitment;(Chief Engineer Level-II Civil, Electrical and Mechanical. By promotion from amongst the substantively appointed Superintending Engineers in the Civil, Electrical and Mechanical Branches respectively.

(iii) Chief Engineer Level-II Civil, Electrical and Mechanical- By Promotion from amongst the substantively appointed Superintending Engineers in the Civil, Electrical and Mechanical Benches respectively.

7. Determination of vacancies. The appointing authority shall determine the number of vacancies to be filled in during the course of the year and also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6.

25. It is a settled law as enunciated by Supreme court in the case of Rohitash Singh (supra) with regard to proposition and doctrine of casus omissus that every legislation or subordinate legislation is required to be examined in terms of language which is unambiguous and any omissis can be supplied only in case of ambiguity or where interpretation of statute would in a literal sense either defeat the purpose of statute or lower it to abject impossibility or absurdity.

The relevant paragraphs of the said judgement are as follows:-

11. This Court applied the rule of contemporanea expositio, as the Court found that the same is a well established rule of the interpretation of a statute, with reference to the exposition that it has received from contemporary authorities. However, while doing so, the Court added words of caution to the effect that such a rule must give way, where the language of the statute is plain and unambiguous., This Court applied the said rule of interpretation by holding that contemporanea expositio as expounded by administrative authorities, is a very useful and relevant guide to the interpretation of the expressions used in a statutory instrument. The words used in a statutory provision must be understood in the same way, in which they are usually understood, in ordinary common parlance with respect to the area in which, the said law is in force or, by the people who ordinarily deal with them. (Vide: K.P. Varghese v. Income-tax Officer, Ernakulam & Anr., AIR 1981 SC 1922; Indian Metals and Ferro Alloys Ltd., Cuttack v. Collector of Central Excise, Bhubaneshwar, AIR 1991 SC 1028; and Y.P. Chawla & Ors. v. M.P. Tiwari & Anr., AIR 1992 SC 1360).

12. In N. Suresh Nathan & Anr. v. Union of India & Ors., 1992 Supp (1) SCC 584; and M.B. Joshi & Ors. v. Satish Kumar Pandey & Ors., 1993 Supp (2) SCC 419, this Court observed that such construction, which is in consonance with long-standing practice prevailing in the concerned department in relation to which the law has been made, should be preferred.

13. In Senior Electric Inspector & Ors. v. Laxminarayan Chopra & Anr., AIR 1962 SC 159; and M/s. J.K. Cotton Spinning & Weaving Mills Ltd. & Anr. v. Union of India & Ors., AIR 1988 SC 191, it was held that while a maxim was applicable with respect to construing an ancient statute, the same could not be used to interpret Acts which are comparatively modern, and in relation to such Acts, interpretation should be given to the words used therein, in the context of new facts and the present situation, if the said words are in fact, capable of comprehending them.

14. In Desh Bandhu Gupta and Co. & Ors. v. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, this Court observed that the principle of contemporenea expositio, i.e. interpreting a document with reference to the exposition that it has received from the Competent Authority, can be invoked though the same will not always be decisive with respect to questions of construction. Administrative construction, i.e., contemporaneous construction that is provided by administrative or executive officers who are responsible for the execution of the Act/Rules etc., should generally be clearly erroneous, before the same is over-turned. Such a construction, commonly referred to as practical construction although not controlling, is nevertheless entitled to be given considerable weightage and is also, highly persuasive. It may however, be disregarded for certain cogent reasons. In a clear case of error, the Court should, without hesitation, refuse to follow such a construction for the reason that, wrong practice does not make the law. (Vide : Municipal Corporation for City of Pune & Anr. v. Bharat Forge Co. Ltd. & Ors., AIR 1996 SC 2856). (See also: State of Rajasthan & Ors. v. Dev Ganga Enterprises, (2010) 1 SCC 505; and Shiba Shankar Mohapatra v. State of Orissa & Ors., (2010) 12 SCC 471).

15. In D. Stephen Joseph v. Union of India & Ors., (1997) 4 SCC 753, the Court held that, past practice should not be upset provided such practice conforms to the rules but must be ignored if it is found to be dehors the rules.

16. However, in Laxminarayan R. Bhattad & Ors. v. State of Maharashtra & Anr., AIR 2003 SC 3502, this Court held that, the manner in which a statutory authority understands the application of a statute, would not confer any legal right upon a party unless the same finds favour with the Court of law, dealing with the matter.

17. This principle has also been applied in judicial decisions, as it has been held consistently, that long standing settled practice of the Competent Authority should not normally be disturbed, unless the same is found to be manifestly wrong, unfair. (Vide: Thamma Venkata Subbamma (dead) by LR. v. Thamma Rattamma & Ors., AIR 1987 SC 1775; Assistant District Registrar, Co-operative Housing Society Ltd. v. Vikrambhai Ratilal Dalal & Ors., 1987 (Supp) SCC 27; Ajitsinh C. Gaekwad & Ors. v. Dileepsinh D. Gaekwad & Ors., 1987 (Supp) SCC 439; Collector of Central Excise, Madras v. M/s. Standard Motor Products etc., AIR 1989 SC 1298; Kattite Valappil Pathumma & Ors. v. Taluk Land Board & Ors., AIR 1997 SC 1115; and Hemalatha Gargya v. Commissioner of Income-tax, A.P. & Anr., (2003) 9 SCC 510).

18. The rules of administrative interpretation/executive construction, may be applied, either where a representation is made by the maker of a legislation, at the time of the introduction of the Bill itself, or if construction thereupon, is provided for by the executive, upon its coming into force, then also, the same carries great weightage. (Vide : Mahalakshmi Sugar Mills Co. Ltd. & Anr. v. Union of India & Ors., AIR 2009 SC 792).

19. In view of the above, one may reach the conclusion that administrative interpretation may often provide the guidelines for interpreting a particular Rule or executive instruction, and the same may be accepted unless, of course, it is found to be in violation of the Rule itself.

26. Learned counsel has also placed reliance on judgement in the case of Union of India vs. Rajiv Kumar and Union of India and Ors vs. Bani Singh (2003) 6 SCC 516, the relevant paragraphs of which are as follows:-

18. It is well settled principle in law that the Court cannot read anything into a statutory provision or rewrite a provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute or any statutory provision is the determinative factor of legislative intent of policy makers.

19. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute or any statutory provision is to ascertain the intention of the Legislature or the Authority enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74)) The intention of the maker is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures, defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (Also See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).

20. The question is not what may be supposed and has been intended, but what has been said. “Statutes should be construed not as theorems of Euclid”. Judge Learned Hand said, “but words must be construed with some imagination of the purposes which lie behind them”. (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).

21.In D.R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. (AIR 1977 SC 842), it was observed that Courts must avoid the danger of an a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

22. While interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515). The legislative casus omissus cannot be supplied by judicial interpretative process.

23.Two principles of construction-one relating to casus omissus and the other in regard to reading the statute/statutory provision as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself. But, at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. “An intention to produce an unreasonable result”, said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), “is not to be imputed to a statute if there is some other construction available”. Where to apply words literally would “defeat the obvious intention of the legislation and produce a wholly unreasonable result” we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: “this is not a new problem, though our standard of drafting is such that it rarely emerges”.

27. Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it is thus evident that there is no ambiguity in Rule 5 which clearly omits the words ‘on the first day of year of recruitment with regard to recruitment on the post of Chief Engineer Level-II. In such an unambiguous wordings of the rules, it would be impermissible to supply any words which have been conspicuously omitted.

28. The said aspect has also been considered by Supreme Court in the case of Rohitash Kumar (supra) in the following manner: –

27. The Court has to keep in mind the fact that, while interpreting the provisions of a Statute, it can neither add, nor subtract even a single word. The legal maxim A Verbis Legis Non Est Recedendum means, From the words of law, there must be no departure. A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. The Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a Statute, or read words into it which are not part of it, especially when a literal reading of the same, produces an intelligible result. (Vide: Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., AIR 1953 SC 148; Mr. Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459; M. Pentiah & Ors. v. Muddala Veeramallappa & Ors., AIR 1961 SC 1107; The Balasinor Nagrik Co- operative Bank Ltd. v. Babubhai Shankerlal Pandya & Ors., AIR 1987 SC 849; and Dadi Jagannadham v. Jammulu Ramulu & Ors., (2001) 7 SCC 71).

28. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause.

29. In the considered opinion of this Court, the aforesaid judgment would also be squarely applicable in the facts and circumstances of the present case.

30.The said aspect can also be considered in light of the principle of PARSIMONY, also known as Occam’s Razor, which is a heuristic rule of thumb and suggests that the simplest explanation, that is, the one with the fewest assumptions, is most likely the correct one. The said principle is named after English philosopher William of Ockhan and popularizes the principle that entities should not be multiplied beyond necessity. The said principle is a guide for choosing the most probable explanation; although it is not a definitive proof of truth. It can be used as a starting point until and unless rebutted by concrete evidence.

31. So far as the Rules 1986 are concerned, it is evident that the same indicate to have overriding effect over any other rules or orders. It is Rule 4 or Rule 5 of the said Rules which would be of importance and pertain to preparation of eligibility list where criteria is merit.

32. It is admitted between the parties as also indicated in the Rules of 1990 that the recruitment for the purpose of Chief Engineer Level-II is on the basis of merit and therefore Rule 4 of the Rules 1986 would be applicable.

Rule-4 of the Eligibility List Rules of 1986 is as follows: –

4. Where the criterion for promotion is merit, the appointing authority shall prepare a list of the senior most candidates containing names as far as possible, three times the number of vacancies subject to the minimum of eight: provided that, if recruitment is to be made for vacancies occurring ating more than one year of recruitment, separate eligibility lists will be prepared in respect of each such year and in such a case while preparing the eligibility list for second and subsequent years of recruitment, the number of candidates to be included in the eligibility list shall be as follows: –

(1) for the second year-The number according to the said proportion plus the number of vacancies in the first year;

(2) for the third year The number according to the said proportion plus the number of vacancies in first and second year; and so on:

Provided further that candidates who are not considered suitable, prima facie, for promotion shall not be taken into account in calculating the said proportion and a note to the effect that they are not so considered shall be added against their names.

For 1 to 5 vacancies-2 times the number of vacancies subject to a minimum of 5.

33. However, upon perusal of the aforesaid Rules, it is evident that it prescribes only the aspect that if recruitment is to be made for vacancies occurring during more than one year of recruitment, separate eligibility list will be prepared in respect of each such year and in such a case while preparing the eligibility list for second and subsequent years of recruitment, the number of candidates to be included in the eligibility would be as indicated.

34. A perusal of the aforesaid rules however does not indicate anywhere that eligibility for purposes of promotion is required to be determined as per First July of the calendar year.

35. It only refers to vacancies occurring during more than one year of recruitment.

36. In view of aforesaid, this Court does not find any contradiction between the Rules of 1990 or of 1986. The opposite parties had also placed reliance on paragraph 2 (6) of the government order dated 20.11.1993, which is as follows: –

यदि किसी चयवर्ष की प्रथम जुलाई की पदोन्नति की पात्रता धारण करने वाले पात्र अधिकारी उपलब्ध न हो या सम्बंधित चयवर्ष की प्रथम जुलाई को पात्रता पूर्ण करने वाले सरकारी सेवकों में से नियमानुसार पात्रता सूची बनाकर चयन संपन्न किये जाने के बावजूद उपयुक्त सरकारी सेवक समुचित संख्या में उपलब्ध न हो, जिसमे परिणाम स्वरुप रिक्तियों को अग्रेतीत किया जय, तो अग्रेतीत की गयी ऐसी रिक्तियों को आगामी चयन वर्ष की रिक्तियों में जोड़कर रिक्तियों की संख्या के नियत गुणांक में पात्रता सूची तैयार कर चयन की कार्यवाही की जाये।

37. However, perusal of the aforesaid also does not indicate any provision whereunder eligibility is required to be determined as on the first day of July of the year of recruitment.

38. Even otherwise in the considered opinion of this Court, executive orders would not override specific provision of statute or subordinate legislation.

39. Mr. Shireesh Kumar, learned counsel for one of the applicants has laid much emphasis on the purpose of introduction of the words ‘first day of the year of recruitment with regard to purpose of incorporation of the said rules also. His submissions have been recorded here in above.

40. On first blush, the submissions of learned counsel appear to be quite attractive but do not pass muster simply for the reason that there is no provision under any of the rules or executive instructions providing for any eligibility list or determination of vacancies on the post as on the first day of July of the year of recruitment. Even otherwise apart from normal occurrence of vacancies in a particular calendar year or a recruitment year, vacancies may even otherwise also occur which may be required to be taken into account.

41. In such circumstances, this Court cannot accede to the purpose implied by the learned counsel for eligibility to be determined as on the first day of July of the year of recruitment. The said fact is more so evident in the present case where exercise for recruitment on the post has taken place in the year 2023 despite the vacancies having occurred in the year 2021.

42. Acceding to submission of learned counsel would amount to insertion of words in the Rules, which have been deliberately omitted and would be impermissible.

43. In view of discussions made here in above, this Court is of the considered opinion that the cut-off-date as fixed by the impugned order dated 19.10.2023 is not in consonance either with the rules of 1990 or of 1986 and is therefore quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding the opposite parties to carry forward the recruitment for post of Chief Engineer Level-II in terms of Rules 5 (iii) and Rule 8 (3) of the Rules of 1990 without indicating any cut-off-date for eligibility.

44. Resultantly, the petitions succeed and are allowed.

45. Parties to bear their own cost.

Order Date:19.08.2025

Shahnaz