IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2457 of 2009 Date of decision : December 1, 2010 Rajesh Kumar …Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Sanjeev Kuthiala, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge(Oral) Petitioner, who is a qualified Patwari Candidate and had passed the Patwari Test, after undergoing training, in August, 2008, is aggrieved by the appointment of respondent No.4, who completed and passed the said test, after undergoing training in January, 2009. So, he has approached this Court, by means of the present writ petition, for quashing the appointment of respondent No.4 as Patwari and also seeks issuance of a writ of Mandamus, directing respondents No.1 to 3 to offer the post of Patwari to him (the petitioner). 2. In the year 2005, responding to an advertisement, issued by respondent No.1, petitioner applied for selection as a candidate for Patwari training against reserved category of Scheduled Caste. Respondent Whether reporters of the local papers may be allowed to see the judgment? …2… No.4 also applied against the same reserved category. Petitioner was selected, while respondent No.4 was placed in Waiting List. When one of the selected candidates of Scheduled Caste reserved category did not report for training, name of respondent No.4 was included in the list of selected candidates. Training of selected candidates was held in two batches. First batch underwent training from 15th December, 2006 to 15th June, 2008. Petitioner was in this first batch. He appeared for examination held from 23rd June, 2008 to 2nd July, 2008 and passed the examination, securing 620 marks, out of 900. Respondent No.4 was imparted training in the second batch. Training commenced on 16th June, 2006 and continued upto 15th December, 2008. At the end of the training, examination was conducted. Respondent No.4 passed the examination, securing 627 marks, out of 900. Result was declared sometime in the month of January, 2009. 3. At the time when the petitioner and respondent No.4 were selected and imparted training, Rules framed in the year 1992, separately, in respect of Mohal Patwaris, Settlement Patwaris and Consolidation Department Patwaris, as appearing in Appendices I, III & V to Himachal Pradesh Land Records Manual, were in vogue. Rules provided for maintenance of a Register by the concerned Department, for entering the names of persons selected for Patwaris training, according to the merit obtained by them in the selection test. Rules further provided that on …3… successful completion of training, the candidates entered in the aforesaid Register were to be offered appointments, according to the seniority, assigned to them on the basis of initial selection test. In the year 1997, instructions were issued, vide Annexure R-2, which made a departure from the aforesaid Rules, to the extent that appointments were to be offered to the selected candidates, not in accordance with the seniority, based on the merit in the initial selection test, but on the basis of merit obtained in the examination held at the end of the training. In August, 2009, Rules of 1992 were repealed and substituted by another set of Rules and the aforesaid instructions of 1997 have been given effect to in these Rules of 2009. 4. In January-February, 2009, after respondent No.4 had completed the training and qualified Patwaris examination, some vacancies were sought to be filled by Deputy Commissioner, Bilaspur. Said Deputy Commissioner included the name of respondent No.4 amongst the candidates, falling in the zone of consideration. Petitioner’s name was, however, excluded from that zone of consideration. He felt aggrieved and made a representation, on 24th February, 2009, copy Annexure P-8. There was no response to the aforesaid representation and respondent No.4 was appointed, on contract basis, as Patwari. 5. Aforesaid factual position is not only not conceded by respondents No.1 to 3, but is rather culled out …4… from a combined reading of the writ petition and reply of respondents No.1 to 3. 6. I have heard learned counsel for the petitioner as also learned Deputy Advocate General and gone through the record. 7. Submission made on behalf of the petitioner is that the petitioner having qualified Patwar examination, at an examination, held earlier to the examination, at which respondent No.4 passed, he (the petitioner) was required to be considered for appointment as Patwari ahead of respondent No.4. Respondents’ plea is that respondent No.4 having scored higher marks, i.e. 627/900, compared to 620/900 scored by the petitioner, he was preferred to the petitioner and, therefore, included in the zone of consideration. 8. Though the Rules do not speak as to how seniority of candidates, passing the examination, at different points of time, is required to be determined, yet looking to the fact that a person, who passes the examination earlier in point of time and also at an examination held earlier, his name is supposed to appear above the candidates, who pass such examination at a subsequent examination, in the Register required to be maintained by the Deputy Commissioner, in accordance with Rule 15(6) of new Rules of 2009 and even according to the repealed Rules also, when read alongwith instructions of 1997, Annexure R-2. If that is so, petitioner had the first …5… right to be considered for appointment against the post reserved for Scheduled Caste, vis-à-vis respondent No.4. Consequently, writ petition is allowed and respondents No.1 to 3 are directed to consider appointing the petitioner against the post to which respondent No.4 has been appointed. Appointment of respondent No.4 against the said post is quashed. Writ petition stands disposed of. December 1, 2010(sd) ( Surjit Singh ), J