ORDER
S.J. Mukhopadhaya, J.
1. In both the cases, as petitioner is common and common question of law involved, they were heard together and are being disposed of by this common order.
2. In WP (C) No. 942 of 2003, the petitioner has challenged the cut off date of 1st August, 2002 as fixed to count the minimum age of eligibility of 22 years for appointment to the post of Assistant Engineer in Public Health Engineering Department (PHED for short) and notified vide Advertisement No. 12/02-03 with further prayer to direct the respondents to decrease the minimum age limit, as mentioned in Clause-IV of the advertisement aforesaid and to accept the application of the petitioner for consideration of his case for appointment against the post of Assistant Engineer along with others.
In other case, WP (C) No. 946 of 2003, similar prayer has been made by the petitioner against the minimum age of 22 years as on 1st August, 2002 prescribed for appointment in different State Civil Services, vide Advertisement No. 11/02-03 published by Jharkhand Public Service Commission (JPSC for short).
3. The case of the petitioner is that, he passed the matriculation examination in 1995 with 1st Division, completed Intermediate (Science) and thereafter took admission in BIT Sindri in the year 1998. He completed Engineering course and provided with provisional certificate from BIT, Sindri in the year 2002 and is otherwise eligible for appointment to the posts of Assistant Engineer and the State Civil Services.
The date of birth of petitioner being 9th October, 1980, he attained 22 years of age on 9th October, 2002. His grievance is that in view of Clause IV of Advertisement No. 12/02-03 for appointment to the post of Assistant Engineer in PHED he has been made ineligible and thus debarred from consideration of his case for appointment to the post of Assistant Engineer though he is otherwise eligible on the date of advertisement.
Similar plea has been taken in respect to the Advertisement No. 11/02-03 published by the JPSC in the newspaper 'HINDUSTAN TIMES' on 2nd January, 2003 for appointment on different posts of Jharkhand Civil Services and Labour and Employment Services.
4. According to the petitioner, there is absolutely no legal reasoning or valid basis for fixing the minimum age limit of 22 years on a particular day of the previous year, rather when the advertisement itself is being published in the year 2003, the JPSC should have either fixed the minimum age requirement as 21 years as being done in all other competitive examinations or should have fixed such minimum age requirement as on the last date of submission of application.
According to petitioner, in most of the cases/advertisements, almost all the concerned organizations have fixed the minimum age requirement of 21 years for appointment in Government services.
5. Mr. Mihir Kumar Jha, the counsel for the petitioner relied on Annexure-5 series, the advertisements published by the Union Public Service Commission on 18th January, 2003, Public Service Commission, Uttar Pradesh in 2003, two advertisements published by the Union public Service Commission in 2003. Advertisement published by the Electricity Service Commission, Lucknow in 2003, Public Service Commission, Uttaranchal on 19th August, 2002 etc. to suggest that all the Selection Bodies/ Public Service Commissions have fixed the minimum age of 21 years.
6. Learned Advocate General, Jharkhand appearing for the JPSG submitted that the posts in Civil Services used to be filled up as per Bihar Civil Services (Executive Branch), and Bihar Junior Civil Services (Appointment) Rules 1951. The said rule has been adopted by the State of Jharkhand with certain amendments under Section 85 of the Bihar Reorganisation Act, 2000, vide Notification No. 2/NI-005/2002 KA-6184 dated 9th November, 2002.
The minimum age has been fixed as per Rule 6 of 1951 Rules and the maximum age has been fixed as per the amendments made vide Notification No. 6184 dated 9th November, 2002.
7. So far as appointment to the post of Assistant Engineer, PHED is concerned, the learned Advocate General relied on Rule 4(a) of the 'Rules regulating the method of Recruitment to the Bihar Public Engineering Services Class II.'
8. Under Rule 6 of the Bihar Civil Services (Executive Branch) and Bihar Junior Civil Services [Appointment) Rules, 1951, as adopted by the State of Jharkhand, vide Notification No. 6184 dated 9th November, 2002, the minimum age for appointment in the Civil Services has been prescribed.
The relevant part of the original Rule 6 is quoted hereunder :
'6. A candidate may either be a male or female, and
(a) be under 25 years and over 22 years of age on the 1st day of August last preceding the month in which the examination is held :
Provided that- (i) in the case of candidate belonging to the scheduled castes or the scheduled tribes, the upper age-limit shall be under 30 years;'
The maximum age limit, as was prescribed has been enhanced by the State Government.
9. Mr. Mihir Kumar Jha, the counsel for the petitioner submitted that the month in which the examination is to be held having not yet fixed, the respondents should not have fixed the cut-off age of 22 years as on 1st of August, 2002. According to him, if the examination is held after August, 2003 then as per Rule 6(a), the candidates having minimum age of 22 years as on 1st August, 2003 will also become eligible.
However, the aforesaid submission cannot be accepted in view of recent advertisement published by JPSC on 1st April,2003 in the newspaper 'HINDUSTAN', Ranchi, wherein 6th July, 2003 is the date of preliminary examination has been fixed.
10. The minimum and maximum age limit of 22 years and 35 years respectively as has been fixed for appointment in the Jharkhand Civil Services vide Advertisement No. 11/02-03, fell for consideration before this Court in the case of 'Md. Shamim Anjum v. State of Jharkhand and Ors.' (WP (S) No. 289 of 2003) analogous with the case of 'Md. Tahri v. State of Jharkhand and others' (WP (C) No. 322 of 2003). In those cases, both the petitioners had challenged the cut off date fixed to calculate the maximum age limit and prayed for direction on the State to relax the upper age limit. A Bench of this Court, vide its (Unreported) decision dated 22nd January, 2003 while rejected the prayer as was made in both the writ petitions, held that the power to relax the age for appointment or the power to fix a maximum age for appointment or the power to fix a cut off date for appointment is vested with the appointing authority/the State of Jharkhand and the High Court has no such jurisdiction. Both the writ petitions were dismissed, there being no merit.
11. In view of Rule 6 (a) of the Rules 1951, as adopted by the State of Jharkhand and the date of preliminary examination having fixed by the JPSC on 6th July, 2003, I find that the Respondents have rightly fixed the cut off date of 1st of August, 2002 to count the minimum age of 22 years and it requires no interference. The prayer made In WP (C) No. 942 of 2003 is thus rejected.
12. For appointment to the post of Assistant Engineer in PHED, the minimum age has been fixed under Rule 4 (a) of the Bihar Public Health Engineering Services Class-II rules, as quoted hereunder : '4. A candidate must
(a) be of an age not below twenty-three years and not exceeding twenty-five years on the first day of August in the year in which applications are invited provided that if he satisfies the Commission that he requires no further practical training in Engineering he may be of an age not exceeding twenty- six years on that date; provided Government may in special cases relax the age-limit; provided that in the case of candidates belonging to the scheduled castes and backward tribes, the upper age-limit shall be under 28 years.'
13. Mr. Mihir Kumar Jha, the counsel for the petitioner submitted that the Bihar Public Health Engineering Services Class-II having not adopted by the State of Jharkhand under Section 85 of the Bihar Reorganisation Act, 2000, the said rule cannot be made applicable for appointment to the post of Assistant Engineer in PHED, Jharkhand.
Mr. Jha further submitted that the aforesaid Bihar Public Health Engineering Services Class-II Rules is not a statutory rule, nor any enactment, ordinance, regulation, order, bye-law, scheme, notification to fall within the ambit of 'law', as per Section 2 (f) of the Bihar Reorganisation Act, 2000. Therefore, the question of its continuance or adoption under Sections 84 and 85 of the Bihar Reorganisation Act, 2000 does not arise.
14. For determination of aforesaid issue, it will be appropriate to refer the relevant provisions of the Bihar Reorganisation Act. In the said Act, 'law' has been defined under Section 2 (f), which reads, as follows :
'2 (f) 'law' includes any enactment, ordinance, resolution, order, bye-law, rule, scheme, notification or other Instruments having immediately before the appointed day, the force of law in the whole or in any part of the existing State of Bihar.'
Territorial extent of laws' while provided under Section 84, but the power to adopt laws has been provided under Section 85; as quoted hereunder :
'84. Territorial extent of laws.--The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, the territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent Legislature of other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day.
85. Power to adapt laws.--For the purpose of facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day, appropriate Government may, before the expiration of two years from that day, by order, make such adaptions and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have ef- . fect subject to the adaptations and modifications so made until altered, repealed or amended by competent Legislature or other competent authority.
Explanation.--In this Section, the expression 'appropriate Government' means as respects any law relating to matter enumerated in the Union list, the Central Government, and as respects any other law in its application to a State, the State Government.
15. From Section 84, it is clear that all the laws enforce immediately before the appointed day i.e. 15th November, 2000 in the erstwhile State of Bihar remain effective, continue and are applicable in both the successor States of Bihar and Jharkhand, until otherwise provided by a competent Legislature or the competent authority, irrespective of reorganization of State.
16. After reorganization of the State of Punjab, similar issues fell for consideration before the Supreme Court in the case of Rattan Lal Co. v. The Assessing Authority, Patiala, reported in AIR 1970 SC 1742, wherein the Supreme Court held :
'The Scheme of the State read as Reorganisation Act makes the laws applicable to the new areas until superseded, amended or altered by the appropriate Legislature in the new State. This is what the Legislature had done and there is nothing that can be said against such amendment.'
Even the 'Administrative Orders' made by the Government of the erstwhile State continue to be in force and effective and binding on the successor States until and unless they are modified, changed or repudiated by the Governments of the successor States, was the finding of the Supreme Court in the case of State of Punjab v. Balbir Singh, AIR 1977 SC, 629, as quoted hereunder :
'In our judgment when there is no change of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State, the administrative orders made by the Government of the erstwhile State continues to be in force and effective and binding on the successor State until, and unless they are modified, changed or repudiated by the Governments of the successor States. No other view is possible to be taken. The other view will merely bring about chaos in the administration of the new States. We find no principle in support of the stand that administrative orders made by the Government of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successor States.'
17. The aforesaid provision of Section 2(f) and Section 84 of the Bihar Reorganisation Act, 2000 fell for consideration before a learned Single Judge of Patna High Court in the case of Singhbhum Homoeo Med. College and Hospital v. State of Bihar, reported in 2002 (2) PLJR 80, wherein the Court held as follows :
'3. from a conjoint of the above it is clear, that all 'law' in force immediately before the appointed day i.e. the day the division of State became effective, continue to be applicable notwithstanding the change in the territories, and a 'notification' being 'law', as such, remains valid and binding so far as the territories comprising the new State are concerned.'
18. Similar was the view of the Division Bench of Patna High Court in the case of Commissioner v. SwarnarekhaCokes and Coal Pvt. Ltd. reported in 2002 (2) PLJR 334, wherein while it considered the relevant provisions of Sections 84 and 85 along with Section 2(1) of the Bihar Reorganisation Act, 2000, held as follows :
'9. It is significant to mention that what had fallen for consideration before the Supreme Court was an administrative order not amounting to law within the meaning of Section 2(g) of the Punjab Act-as held by the Punjab High Court with which the Supreme Court agreed. It was on general principles that extended meaning was given to the administrative orders and they were held to be applicable in the successor State, The present case stands on a much higher footing inasmuch as the basis of the claim of the respondents is a statutory order/notification which amounts to law by virtue of the inclusive definition of the term 'law' in Section 2(f) of the Bihar Act.
10. The above categorical and definite enunciation of law by the Apex Court leaves no room for doubt about applicability and binding nature by the statutory orders/notification of the Government of the erstwhile State of Bihar in the successor State of Jharkhand. In fact, there is no necessity of its being 'adopted' as observed by the learned Judge. Under Section 84 unless repudiated or otherwise modified or superseded by a legislative mandate, they, continue to be applicable and binding in the successor State.'
19. This Court in its recent (Un-reported) decision dated 7th April, 2003 in the case of 'Rajiw Kumar v. The State of Jharkhand and Ors.', WP (C) No. 5341 of 2002 also held that the laws of the combined State of Bihar continue in the successor States of Bihar and Jharkhand under Section 84 of the Bihar Reorganisation Act, 2000, until and otherwise provided by a competent Legislature or competent authority of the successor State.
20. In view of the aforesaid finding, Ihave no hesitation to hold that the 'BiharPublic Health Engineering Services Class-IIRules', whether it is a statutory rule or instruction or executive instruction or order, it is still in force and binding on, both the successor States of Bihar and Jharkhand until and unless suitable provision is made by the competent Legislature or the competent authority of the State of Jharkhand.
21. This Court has noticed the provision of Rule 4(a) of the Bihar Public Health Engineering Services Class-II Rules wherein the minimum age of 23 years is prescribed on the 1st day of August in the year in which applications are invited. Learned Advocate General while accepted that 22 years is the minimum age prescribed in the Advertisement No. 12/02-03 as on 1st August, 2002, rightly clarified that it will not affect any of the candidate in any manner, the advertisement having published in the year 2003, and as all the eligible candidates will attain the age of 23 years as on 1st of August, 2003, as per the advertisement.
22. In the aforesaid background, the petitioner being not eligible as per Clause 4(a) of the Bihar Public Health Engineering Services Class-II Rules or the advertisement, no relief can be granted in his favour.
23. There being no merit, both the writ petitions are dismissed. However, there shall be no order, as to costs.