IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.83 of 2001 Decided on : September 16, 2008 Ganga Ram …Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. D.K. Khanna, Advocate. For the Respondents : Mr. P.M. Negi, Deputy Advocate General, for respondents No.1 to 3. None for respondents No.4 to 44. Per Surit Singh, Judge( Oral ) Writ petitioner is aggrieved by the order, dated 17th November, 2000, of H.P. State Administrative Tribunal, whereby his Original Application, registered at No.26 of 1991, seeking a direction to respondents No.1 to 3 to consider him for acceptance as Kanungo candidate, w.e.f. 25th February, 1990, has been dismissed. He has filed the present writ petition, under Articles 226 and 227 of the Constitution of India, seeking judicial review of the aforesaid order of the Tribunal. 2. We may first notice the relevant facts. Petitioner was appointed as Patwari in the Revenue Department of the State of Himachal Pradesh, in the year 1978. His educational Whether reporters of the local papers may be allowed to see the judgment? …2… qualification, at the time of appointment, was graduation. The Rules regarding recruitment and promotion of Kanungos provide for selection of Patwaris as Kanungo candidates. According to the relevant Rule, which was amended vide Notification dated 3rd June, 1980, in the name of Governor of Himachal Pradesh, Patwaris, with three years service, who have passed matriculation examination or its equivalent or who are middle pass, are to be accepted as Kanungo candidates in the ratio of 2 : 1, but preference is to be given to those Patwaris, who are graduates or postgraduates. In the year 1990, there were 41 vacancies for acceptance as Kanungo candidates from amongst the serving Patwaries. Petitioner’s name figured at serial No.249 in the seniority list. He, being graduate, was expecting his name to be included in the list of accepted candidates. However, respondent No.3 did not even consider the name of the petitioner. Petitioner made a representation to respondent No.2, the Divisional Commissioner, Mandi. His representation was dismissed by a speaking order, Annexure A-4. The order said that the operation of the Rule, providing for preference to graduate/postgraduate Patwaris, had been suspended by the Government, vide telegram dated 11th May, 1988, Annexure R-2. Petitioner then approached the State Administrative Tribunal. He claimed that, being a graduate Patwari, he was entitled to be preferred to other Patwaris, i.e. respondents No.4 to 44; who had been accepted as Kanungo candidates. He prayed that respondents No.1 to 3 be directed …3… to consider his candidature, in the light of the Rule providing for preference to graduate and postgraduate Patwaris. 3. Respondents No.1 to 3 took the plea that vide telegram dated 11th May, 1988, Annexure R-2, addressed by the State Government to all the Deputy Commissioners, Rule providing for preference to graduate and postgraduate Patwaris, in the matter of acceptance of Kanungo candidates, had been rendered inoperative till further orders and ultimately the Rule had been withdrawn, vide notification dated 10th December, 1990 (copy Annexure R-3). Private respondents also took the same stand as respondents No.1 to 3. 4. Learned Tribunal examined the relevant Rules and concluded that the posts of Kanungos were Class-III posts and, hence, non-selection posts, and promotion to such posts were required to be made according to the principle of seniority, subject to rejection of unfit. It was also observed that the provision regarding preference to graduate/postgraduate Patwaris, as contained in Para 2.3 of the Executive Orders, was unauthorized, inasmuch as Rule 5(ii) of the H.P. Kanungo Service Rules, 1951, did not authorize issuance of any such orders and that in any case said the Executive Order stood withdrawn/deleted vide Notification dated 10th December, 1990, Annexure R-3. Consequently, the Original Application was dismissed. 5. Petitioner has challenged the order of the Tribunal and has prayed for setting aside the same. Further prayer made by the petitioner is that direction be issued to …4… respondents No.1 to 3 to consider his name for acceptance as Kanungo candidate from February 1990, when private respondents No.4 to 44 were selected and accepted as Kanungo candidates. Stand taken by respondents No.1 to 3 is the same as was taken by them before the learned Tribunal and noticed hereinabove. Private respondents have not put in appearance despite service. 6. We have gone through the record and also the relevant Rules and Executive Orders and heard the learned counsel for the petitioner and the learned Deputy Advocate General, appearing for respondents No.1 to 3. 7. Rules for recruitment and promotion of Kanungos were framed by the Financial Commissioner, Himachal Pradesh, and notified vide Notification dated 17th April, 1951. The Rules find mention in Chapter II of Himachal Pradesh Land Records Manual. Part-B of the Rules consists of Executive Orders, which pertain to service conditions of Kanungos. 8. Para 2.3 of the Executive Orders prescribes the eligibility criteria for acceptance of Patwaris as Kanungo candidates. Initially, the educational qualification prescribed was middle school examination. There was no provision for giving preference to the Patwaris possessing higher educational qualification. An amendment was carried out in Para 2.3, aforesaid, vide Notification dated 3rd June, 1980, Annexure R-1, issued in the name of Governor of Himachal Pradesh. The Notification reads that the Governor is pleased to amend the Executive Orders annexed to the Himachal Pradesh Kanungo …5… Service Rules, 1951. This amendment has been carried out in exercise of the power vested in the Government, under Section 29 of the Himachal Pradesh Land Revenue Act. It was by this amendment that Para 2.3 of the Original Executive Orders, Annexed to Rules of 1951, had been amended. The amended para provided that Patwaris, having passed matriculation examination or equivalent, were eligible for acceptance as candidates for Kanungos and that those with middle pass qualification were also eligible. Ratio of matric pass and middle pass Patwaris was fixed as 2 : 1. The amended para further provided that Patwaris with graduation or post-graduation qualification were to be preferred for acceptance as Kanungo candidates. On the basis of this amended Para 2.3, the Government had been giving preference to graduate and postgraduate candidates upto the year 1988, when a telegram, Annexure R-2, which is dated 11th May, 1988, was issued by the Government and the concerned Revenue Officers, to whom this telegram was sent, were directed to ignore the provision regarding preference to graduate and postgraduate Patwaris in the matter of acceptance as Kanungo candidates. Lateron, vide Notification dated 10th December, 1990, Annexure R-3, provision regarding preference to graduate and postgraduate Patwaris was withdrawn. 9. Amendment to Para 2.3 of the Executive Orders, vide Notification dated 3rd June, 1980, Annexure R-1, was carried out in the name of the Governor of Himachal Pradesh, in exercise of the power conferred by Section 29 of the Himachal …6… Pradesh Land Revenue Act, 1953, on the Government of Himachal Pradesh. This amendment was in the nature of Rules, as the Notification said that the Rules of 1951 were being amended and the amendment was to be called Himachal Pradesh Kanungo (Amended) Rules, 1980. That means, by virtue of this Notification, Annexure R-1, Para 2.3 forming part of the Executive Orders, became part of the Himachal Pradesh Kanungo Service Rules, 1951. This amended Rule was framed, as already noticed, by the Governor of Himachal Pradesh, in exercise of the power vested in the State Government, under Section 29 of the Himachal Pradesh Land Revenue Act. This Rule could not have been deleted by notification, like Annexure R-3, dated 10th December, 1990 issued by the Financial Commissioner (Revenue), when the same had been incorporated, by way of amendment, in the name of Governor, in exercise of power vested in the State Government, under Section 29 of the Himachal Pradesh Land Revenue Act, 1953. Thus, the Notification, Annexure R-3, is ultra vires and nonest. Similarly, operation of Para 2.3 of Executive Orders, as made part of the Rules vide Notification dated 3rd June, 1980, Annexure R-1, could not have been ordered to be kept in abeyance by telegraphic order dated 11th May, 1988, Annexure R-2. 10. It is true that original Rules of 1951 were framed by the Financial Commissioner (Revenue). After the framing of those Rules, Himachal Pradesh Land Revenue Act, 1953, was enacted. Section 29 of the said Act conferred the rule making …7… power on the State Government. The power, so conferred, related to the appointment and other service conditions of Kanungos and village Officers. It was because of this reason that the amendment vide Notification of 3rd June, 1980, Annexure R-1, was carried out in the name of the Governor. Because of the provision of Section 29 of the Himachal Pradesh Land Revenue Act, referred to hereinabove, Financial Commissioner ceased to have had the authority to make the Rules and consequently to amend the same. Therefore, he could not have undone vide Notification dated 10th December, 1990, Annexure R-3, the amendment carried out vide Notification, Annexure R-1, dated 3rd June, 1980, by the Governor of Himachal Pradesh. 11. As regards the telegram, Annexure R-2, which was issued in the name of the State Government, its bare reading suggests that the matter regarding amendment was being examined when that telegram was issued. That means, the provision of Para 2.3 (supra) was still intact, when that telegram was issued. Therefore, direction issued through the aforesaid telegram, Annexure R-2, was illegal, being contrary to the mandate of the Rules. In other words, respondent No.3 was bound to make the selection for acceptance of Kanungo candidates from amongst the Patwaris, in accordance with the mandate of Para 2.3 of the Executive Orders annexed to the Rules of 1951, as amended vide Notification dated 3rd June, 1980, Annexure R-1, ignoring the telegram, Annexure R-2. In any case, by an Executive Order, statutory Rules cannot be …8… whittled down nor can retrospective effect be given to such Executive Order so as to destroy any right, which may have become crystallised, as held by the apex Court in Uday Pratap Singh and others versus State of Bihar and others, 1994 Supp (3) Supreme Court Cases 451. 12. A Constitution Bench of the Supreme Court in Ajit Singh and others (II) versus State of Punjab and others, (1999) 7 Supreme Court Cases 209, has held that Articles 14 and 16(1) issue a positive command that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”. It has further been held that equal opportunity in the matter of promotion means the right to be considered for promotion and if a person, satisfying the eligibility and falling in the zone of consideration, is ignored from consideration, there will be a clear infraction of his fundamental right to be considered for promotion, which is a personal right. 13. In the present case, according to Para 2.3 of the Executive Orders, annexed to the Rules of 1951, as amended vide Notification dated 3rd June, 1980, Annexure R-1, petitioner, being a graduate and fulfilling all other eligibility conditions, had the right to be considered for acceptance as Kanungo candidate by the Departmental Promotion Committee, which selected respondents No.4 to 44. He having not been considered, because of the issuance of telegraphic orders, Annexure R-2, which were contrary to the mandate of Para 2.3 of the Executive Orders annexed to the aforesaid Rules of 1951, …9… we are of the firm view that his fundamental right, guaranteed by Articles 14 and 16(1) of the Constitution of India, has been infracted. This aspect of the matter was not gone into, at all, by the learned Tribunal, while disposing of the Original Application filed by the petitioner. Therefore, the order of the learned Tribunal is not sustainable in the eye of law and is consequently set aside. 14. As a sequel to the setting aside of the order of the Tribunal and in view of the above discussion, we allow this writ petition and direct respondents No.1 to 3 to consider the name of the petitioner for acceptance as a Kanungo candidate against one of the vacancies, which were available in the year 1990 and in case, on such consideration, he is found to be suitable and fit, he be accepted as a Kanungo candidate with effect from 25th February, 1990, the date from which respondents No.4 to 44 were so accepted. Writ petition stands disposed of. ( R.B. Misra ), J. September 16, 2008(sd) ( Surjit Singh ), J.