O.H. Mootham, C.J.
1. This is an appeal against an order of a learned Judge dated 16 October 1959 dismissing a petition under Article 226 of the Constitution.
2. In 1948 the appellant, who was at that time about 21 years of age, was appointed a paid apprentice in the Collectorate, Etah. Shortly thereafter he was suspended in connexion. with an embezzlement case in the department, but he was reinstated to his post on 2 November 1953. On 20 March 1955 he was placed on probation for six months and at the expiry of that period the Collector confirmed him in his post as a paid apprentice. The maximum age for appointment was 25 years, and as by that time the appellant was 27 years old the Collector wrote to the Board of Revenue in February 1956 asking that he be exempted from compliance with the age-limit. On 5 June 1956 the Administrative Member of the Board of Revenue refused to grant exemption in the case of the appellant, although he allowed exemption in the case of another paid apprentice in the same office. A representation made by the appellant for reconsideration of his case was also rejected by the Administrative Member on 22 June 1956. The appellant then filed a petition in this Court under Article 226 of the Constitution in which he prayed that the orders of the Administrative Member dated respectively 5 and 22 June 1956 be quashed by a writ of certiorari and that a writ of mandamus be issued directing the Administrative Member and the Collector not to discriminate against the appellant in the matter of exemption from the age-limit. That petition was dismissed and an appeal against the order of dismissal (Special Appeal No. 62 of 1958) has been dismissed by us today.
3. On 9 August 1956 the Collector directed that the appellant be reverted from his permanent post but should continue as a temporary paid apprentice. The appellant appears to have continued as such until 1 July 1958 when he received a letter from the Collector informing him that his temporary services were terminated with immediate effect and that he would receive one month's pay in lieu of notice. This letter followed a formal order made by the Collector on 27 June 1958 that the appellant's name be removed from the list of paid apprentices.
4. On 22 July 1958 the appellant made a representation to the Administrative Member of the Board of Revenue against the removal of his name, but that representation was rejected, the appellant being informed of the rejection by a letter from the office superintendent dated 11 December 1958. He then made a representation to the Minister of Revenue in the Government of Uttar Pradesh dated 24 December 1958. On 10 September 1959 he was informed that the Governor had rejected that representation. The appellant then filed in this Court the petition out of which the present appeal arises. In that petition he challenged the validity of the termination of his services and prayed that the orders of the Collector dated 27 June and 1 July 1958 as well as the order of the Administrative Member, dated 11 December 1958 and that of the Governor dated 10 December 1959 be quashed by writ of certiorari. The learned Judge dismissed the petition both on merits and on the ground that it was belated. It is against that order that the present appeal has been filed.
5. With regard to the question whether the petition was belated it is not now in dispute that under the rules made by the State Government for members of the subordinate services under Rule 54 of this Civil Services (Classification, Control and Appeal) Rules, the State Government had the power to revise the order of the Administrative Member of the Board of Revenue rejecting the representation which had been made to him by the appellant. This provision does not appear to have been brought to the notice of the learned Judge. There seems also to be no doubt that the appellant sought in good faith to invoke the exercise of these revisionary powers in his case, and although his representation of 24 December 1958 was addressed to a Minister of the Government it is clear from the order rejecting that representation that the latter was treated as a representation made to the State Government. We are satisfied that the appellant acted throughout in good faith, and that there was no undue delay in the making of the representation or on that representation being rejected in the presentation of the petition. With all respect to the learned Judge we think that the delay in the presentation of the petition is sufficiently accounted for.
6. The appellant's contention is that although he was over age on the date on which he was confirmed in his post, the act of confirmation had the effect in law of making him a permanent employee. The order terminating his services was therefore an order of removal within the meaning of Article 311 of the Constitution, and as he had admittedly been afforded no opportunity of showing cause against the order the provisions of that article hail been infringed. This argument is sought to be countered by the respondents on the ground that the order of the Collector dated 26 November 1955 confirming the appellant was conditional on the appellant obtaining exemption from the maximum age-limit of 25 years. Whether the Collector's order was a conditional order 18 a question of fact. In our opinion it was not a conditional order. The facts are that on 16 May 1955 a proposal was made by the office superintendent that the appellant be appointed to an existing vacancy in the cadre of permanent paid apprentices. In making this proposal the office superintendent mentioned that as the appellant had completed 27 years of age his exemption from the age-limit would be necessary. This note appears to have been placed before the Collector by the officer-in-charge combined office on 20 May with a recommendation that the appellant be appointed. The Collector then appears to have asked for the names of other paid apprentices according to their seniority. Having received this information he made the following order on 22 May 1955:
It is fortunate for Sri Ganga Singh that his roll in the last two sears is better than that of others mentioned above. Sri Ganga Singh may be given a chance and put on probation for six months. I hope he will do well.
7. Some months later, on 12 September 1955, the office-in-charge combined office on behalf of the Collector wrote to the Commissioner, Agra Division, asking the latter to exempt from the age-limit two paid apprentices, one of whom was the appellant. No reply to this letter had been received by the time the question arose whether the appellant should be confirmed. On 17 November the general clerk in the Collector's office reported that the appellant's probationary period of six months was due to expire on 21 November and on the following day the office superintendent submitted a proposal to the Collector through the officer-in-charge recommending the appellant's confirmation. On 23 November the officer-in-charge forwarded the office superintendent's note with the remark that 'Sri Ganga Singh's work has been quite satisfactory and efficient and he may be confirmed.' In none of the notes relating to the confirmation of the appellant is any reference made to the fact that he was overage. On 26 November the Collector endorsed at the foot of the recommendation of the officer-in-charge the word 'approved.' In our opinion it is impossible on these facts to hold that the order made by the Collector approving the confirmation of the appellant was in any way a conditional order. It was in our view a plain order confirming the appointment of the appellant in the cadre of paid apprentices.
8. It is, however, contended on behalf of the respondents that even if the Collector's order of confirmation was an unconditional order, the Collector had no power to confirm a person who was overage unless exemption from the age bar had first been obtained; and that, therefore, the Collector's order was Invalid. The only rule to which our attention has been Invited is Rule 10 of the Manual of Government Orders, Uttar Pradesh (1954 Ed.) which provides that-
When no age-limit has been prescribed in rules regulating recruitment to a superior pensionable service or post under Government, a person whose age exceeds 25 years shall not be admitted to that service or post without the sanction of the Governor were he is the appointing authority or in other cases, the head of the department.
9. The learned standing counsel who appeared for the respondents was however obliged to concede that he was unable to show that this rule had any statutory force. We have no alternative therefore but to hold that it is purely a departmental rule, the contravention of which may give rise to Borne form of departmental action, but would not invalidate the order of the appointing authority. It is not in dispute that the Collector in the present case is the appointing authority, and having appointed the appellant to a permanent post the order in our opinion is a good order notwithstanding the fact that the appellant was at the material time over 25 years of age.
10. We are of opinion therefore that this appeal mast succeed. The order of the learned Judge is set aside, and a writ in the nature of certiorari will issue quashing the orders of the Collector dated 27 June and 1 July 1958, the order of the Administrative Member, Board of Revenue, dated 11 December 1958 and also the order of State Government dated 10 December 1959. The appellant is entitled to his costs throughout.