IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Civil Writ Petition No. 214 (S/S) of 2002 Dhirendra Singh Rawat ………….. Petitioner Versus State and others …………. Respondents Date of decision : 1st Oct., 2004 For the approval of: Hon’ble Mr. Justice P.C. Pant - Whether the order/judgment should be sent to the reporting? (Yes) - Whether the reporters be allowed to see the judgment? (Yes) (Himanshu) P.A. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 214 (S/S) OF 2002 (OLD NO. 32700/1995) Dhirendra Singh Rawat son of Sri Dewan Singh, Village Nodiyal Gaon, Patti Kapolsue, District Pauri Garhwal. ……………….Petitioner. Versus 1. State of U.P. 2. Board of Revenue, U.P. Lucknow Through its Chariman. 3. Divisional Commissioner, Garhwal Division Pauri Garhwal. 4. Collector-cum-District Magistrate, Pauri Garhwal. 5. Govind Ram son of Sri Pati Ram r/o Village Patal, Patti Khatasue, District Pauri Garhwal. …………………..Respondents. Sri Subhash Upadhyay, learned counsel for the petitioner. Sri P. Maulekhi, learned Additional Advocate General for the State. Sri R.K. Shah, learned counsel for the respondent no.5. Hon’ble Prafulla C. Pant, J. 1. By means of this writ petition, moved under Article 226 of the Constitution of the India, the petitioner has sought writ in the nature of certiorari for quashing the impugned order dated 3.4.1995 (Copy Annexure-3 to the writ petition) and order dated 29.8.1995 both passed by the Divisional Commissioner, Garhwal Division. 2. Brief facts of the case, as narrated in the writ petition, are that the petitioner was initially appointed as Lekhpal and thereafter selected for the post of Assistant Registrar Kanoongo as per the selection list prepared on 4.6.1994 (Copy Annexure 1 to the writ petition). In the said list the petitioner was at serial no. 1 and was promoted and posted as Assistant Registrar Kanoongo vide order dated 4.6.1994 (Copy Annexure-2 to the writ petition). The respondent no. 5 Sri Govind Ram aggrieved by the said promotion of the petitioner, filed an objection claiming his appointment on the post of Assistant Registrar Kanoongo. The objection of the respondent no.5 is allowed vide order dated 3.4.1995 (Copy Annexure-3 to the writ petition) by the Commissioner Garhwal Division has been challenged by the petitioner in this petition. The petitioner filed a review application against the said order before the Divisional Commissioner and obtained the stay order dated 27.4.1995 (Copy Annexure-4 to the writ petition) fro the said Authority. However, vide order dated 4.10.1995 (Copy Annexure-5A to the writ petition) the petitioner was informed that the review petition of the petitioner has been rejected by the Commissioner by his order dated 29.8.1995 as such he is to reverted as Lekhpal. Aggrieved by the said order of the Commissioner the present writ petition has been filed alleging that the petitioner got promoted after due selection process. The petitioner has further alleged that even in the gradation list of the Lekhpal he was at serial no. 169 as against the respondent no.5 who was at serial no. 223. The order of the Divisional Commissioner has been alleged to be wrong and the illegal. 3. A counter affidavit has been filed on behalf of the respondent no. 3 and 4 in which it is admitted that the petitioner was appointed initially as Lekhpal. However the rest of the contents as alleged in the writ petition are not admitted and it is stated that the impugned orders were rightly passed after consideration of facts and circumstances of the matter. Respondent no.5 has filed a separate counter affidavit stating that in the year 1992, six Lekhpals (Patwaries) applied for their promotion to the post of Assistant Registrar Kanoongo. A selection committee was constituted vide order dated 25.6.1992 by the District Magistrate and all the applicants were interviewed. Out of the six, three candidates were selected (Copy Annexure CA-1) and the name of the answering respondent no. 5 was at serial no. 3. The first two persons got the appointment as Assistant Registrar Kanoongo as the vacancies were existing for them but as to the respondent no.5 it was directed that he will be appointed as and when vacancy arises. Respondent no.5 in his counter affidavit has further stated that thereafter the petitioner was selected through a different selection list in which this fact was concealed that the respondent no.5 was waiting for the promotion to the post of Assistant Registrar Kanoongo. On being aggrieved the respondent no.5 made a representation to the District Magistrate who gave his report dated 28.4.1995 (Copy Annexure CA-2). It is further alleged in the counter affidavit also that the Commissioner Garhwal Division rightly allowed the representation of the respondent no.5 vide impugned order dated 3.4.1995. It is lastly stated in the counter affidavit of the respondent no. 5 that for selection, for the post of Assistant Registrar Kanoongo, seniority is not the alone criterion. Also it is stated that once the selection process has taken place on 1.7.1992 new selection could not have been done unless the persons selected in the earlier process is given the promotion. 4. I heard learned counsel for the petitioner, learned Standing Counsel and learned counsel for the respondent no. 5 and perused the affidavit, counter affidavits and rejoinder affidavit filed by the parties along with the annexures annexed thereto. 5. The short question for consideration before this court is whether the petitioner is wrongly directed to be reverted as Lekhpal vide impugned orders passed by the respondents no. 3 and 4. 6. Admittedly the petitioner was initially appointed as Lekhpal. It is also not disputed that the petitioner was promoted as Assistant Registrar Kanoongo vide order-dated 4.6.1994. Annexure 1 to the writ petition shows that on 13.5.1994 a selection of the Lekhpals took place for promotion to the post of the Assistant Registrar Kanoongo in which the petitioner was at serial no. 1. Copy of the order dated 4.6.1994 shows that the then District Magistrate in pursuance of the said selection list promoted the petitioner as Assistant Registrar Kanoongo. The main dispute relates to the point that whether the person selected in the year 1992 and was in the waiting list, has a right of being promoted after a year when new selection has taken place. Before further discussions it is pertinent to quote relevant rule relating to promotions from Lekhpals to Assistant Registrar Kanoongo. Rule 8 (2) of the Uttar Pradesh Avar Rajasva Lipik (Registrar Kanoongo and Sahayak Registrar Kanoongo) Seva Niyamavali, 1958 reads as under: ¼2½ ¼d½ lgk;d jftLVªkj duwuxksvksa dh HkrhZ ds iz;kstuks ds fy, mu ys[kikyks es ls tks bl mi&fu;e ds [k.M ¼[k½ ds v/khu ukeakfdr fd;s x;s gksa] T;s’Brk ds vk/kkj ij p;u fd;k tk;sxk] fdUrq vuqi;qDr O;fDr;ks dks ugh fy;k tk;sxkA fVIi.kh & ,slk vHk;FkhZ tks vuqi;qDr gksus ds dkj.k u fy;k tk;] dsoy mlh volj ds fy;s vuqi;qDr le>k tk;sxk vkSj ckn dks fd;s tkus okys izR;sd p;u es mlds izlax es lE;d :Ik ls fopkj fd;k tk;sxkA ¼[k½ dysDVj izR;sd o"kZ flrEcj es yxHkx lgk;d jftLVªkj duwuxks dh ftys dh dksfV es gksus okyh fjfDr;ks dh yxHkx la[;k ekywe djsxk vkSj vius ftys ds izR;sd ijxuk vf/kdkjh ls] ‘’khrdkyhu nkSj ds Ik’pkr ,sls ys[kikyks dks] ftudh la[;k og fuf’pr djsxk] ukaekfdr djus ds fy, dgsxk] ftUgksus ys[kiky ds :Ik es ml o’kZ dh] ftles ukekadu fd;k tk;] igyh tuojh dks de ls de 6 o"kksZ dh lsok iwjh dj yh gS] jkT; dh twfu;j ;k gkbZ Ldwy ijh{kk ¼vxzsth ds lkFk½ ;k mlds led{k ;k mlls ÅWph ijh{kk mRrh.kZ dh gks] ftudh vk;q ml o"kZ dh] ftles ukekadu fd;k tk;] igyh tuojh dks 35 o"kZ ls vf/kd u gks] vkSj tks lgk;d jftLVªkj dkuwuxks ds in ij mUufr ikus ds fy, mi;qDr le>s tk;s] fdUrq izfrcU/k ;g gS fd mu O;fDr;ks dks izkFkfedrk nh tk,xh] ftudh f’k{kk lEcU/kh ;ksX;rk, vkSj lsok ys[kk vf/kd vPNk gksxkA ¼x½ & & & & x& & & & & & x & && & & x & & & ¼?k½& & & & x& & & & & & x & && & & x & & & ¼M-½& & & & x& & & & & & x & && & & x & & & ¼p½ mi;qDr [k.M ¼d½ ds v/khu pqus gq, ys[kikyks ds uke ml lwph es p<+k;s tk;saxs tks dysDVj vius ftys ds fy, j[krk gSA lwphxr vfH;kfFkZ;ks ds uke muds p;u ds fnukad ds vuqlkj j[ks tk;saxs] fdUrq izfrcU/k ;g gS fd ,d gh fnukad ij pqus ys[kikyks ds ikjLifjd uke p;u ds iwoZ muds ewy osru ds vuqlkj j[ks tk;saxs vkSj ;fn muds osru cjkcj gks rks mudh lsok dh nh?kZdkyhurk ds vuqlkj j[ks tk;sxsA mDr lwph ys[kikyks dh la[;k mu fjDfr;ks dh la[;k dh yxHkx nks frgkbZ gksxh ftudh ftys ds lgk;d jftLVªkj dkuwuxks dh dksfV ¼cader½ rhu o"kZ dh vof/k es gksus dh lEHkkouk gS] fdUrq ftys ds fy, Lohd`r lgk;d jftLVkj dkuwuxks dh la[;k dh nks frgkbZ ls de ugh gksxhA” 7. From the above rule – -8 (2) it is clear that every year the District Magistrate is required to assess the vacancies likely to fill in next 3 years. It is also clear from the aforesaid rules that he has to select two third number of person of the vacancies which is likely to occur in the next 3 years. Admittedly it is not in dispute that in the year 1992 three persons were selected from amongst the Lekhpals for their promotion to the post of Assistant Registrar Kanoongo and the respondent no.5 stood third in the said list. However, from the record it appears that since only two vacancies occurred in the said year as such only the first two of them in select list could be promoted. Learned counsel for the respondent no. 5 and learned Additional Advocate General argued that unless the respondent no.5 is promoted no new selection process could have taken place. They further argued that the selection list of 1992 was valid for a period of three years. I am unable to agree with the submissions made on behalf of the respondents for the reasons that if their interpretation is accepted, the District Magistrate will never be able to prepare a select list every year. There is no mention in the rules if any select list has to remain valid for three years. That being so, the interpretation advanced by the respondents on the basis of which the impugned order was passed in wrong as in the said case the above quoted sub rule 2 (kha) cannot be harmoniously complied with rule 2 (cha). 8. Learned counsel for the respondent no. 5 referred to the principle of law laid down in Har Govind Singh V. State Bank of India 1995 Alld.L.J. 1710 and submitted that the validity of the select list does not come to an end on completion of period of one year. The case referred above is given in total different circumstances as against the present case. In the said referred case the promotions were not governed by the Uttar Pradesh Avar Rajasva Lipik (Registrar Kanoongo and Sahayak Registrar Kanoongo) Seva Niyamavali, 1958. 9. One more reason which belies the stand taken by the respondents is that had there been any intention on the part of the legislature to keep the select list valid for three years, apart from expression ‘every year’ in Rule 2(kha), the provision in rule 2 (cha) would not have been there relating to restricting the list only up to two third of the vacancies of the select list of the vacancy likely to occur in the next three years. 10. For the reasons as discussed above this court finds that the petitioner is wrongly being directed to be reverted as Lekhpal vide impugned orders after being selected in the year 1994 on the objection of the respondent no. 5 (who was selected in the year 1992 but remained in waiting). Therefore, in these circumstances, in the opinion of this court the writ petition deserves to be allowed. Accordingly the writ petition is allowed. Impugned orders dated 3.4.1995 and 29.8.1995 passed by the respondents No.3 &4 are quashed with the observation that it will be open for the respondents to select the respondent no.5 (who is junior to the petitioner) under the rules, if found suitable for promotion in the coming years. No order as to costs. Dt. 1.10.2004 (Prafulla C. Pant, J.) P. Bandhavakar