IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION No. 167 of 2010 (S/S) Sudesh Chandra and another ….Petitioners. Versus Collector/District Magistrate and another. …Respondents Present: Mr. Manoj Tiwari, Senior Advocate, assisted by Mr. Alok Mehra, Advocate present for the petitioners. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand / respondent nos. 1 and 2. Mr. D.S. Patni, Advocate present for respondent nos. 3, 4 and 5. With WRIT PETITION No. 505 of 2010 (S/S) Yashpal Singh and another. ….Petitioners. Versus Collector / District Magistrate, Udham Singh Nagar and others. …Respondents Present: Mr. D.S. Patni, Advocate present for the petitioners. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Mr. Manoj Tiwari, Senior Advocate, assisted by Mr. Alok Mehra, Advocate for respondent no. 3. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard learned counsel for the petitioners, learned Standing Counsel for the State of Uttarakhand as well as learned counsel for the private respondents. The two writ petitions pertain to the same controversy, which relates to the promotion of Patwaris to the post of Registrar Kanoongo. The Rules applicable for promotion of Patwaris to the post of Registrar Kanoongo were framed in the erstwhile State of Uttar Pradesh and are known as “Uttar Pradesh Subordinate Revenue 2 Ministerial (Registrar Kanungo and Assistant Registrar Kanungo) Service Rules, 1958”. These Rules are also applicable in the State of Uttarakhand. The original Rule pertaining to the promotion, particularly Rule 8 reads as follows: “8. Method of recruitment. (i) For purpose of recruitment of Registrar Kanungos under rule 7, selection shall be made on the basis of seniority subject to the rejection of the unfit from amongst the permanent Assistant Registrar Kanungos who have put in not less than three years service as such on the first day of January of the year in which the selection is made. (ii) (a) For purposes of recruitment of Assistant Registrar Kanungos selection shall be made on the basis of seniority subject to the rejection of the unfit from amongst the Lekhpals who have been nominated under clause (b) of this sub-rule. Note-A candidate who is rejected as unfit will be held unfit for that concession only and his case will be duly considered at every subsequent selection. (b) The Collector shall, in September each year, ascertain the likely number of vacancies in the district cadre of Assistant Registrar Kanungo and ask each Sub-Divisional Officer in his district to nominate, after the winter tour, a certain number of Lekhpals, to be fixed by him, who have put in not less than six years’ service as Lekhpal on the first day of January of the year in which the nomination is made, have passed the Junior or High School Examination (with English or an equivalent or higher examination of the State, are not more than 35 years of age on the first day of January of the 3 year in which the nomination is made and are considered suitable for promotion as Assistant Registrar Kanungos. Provided that preference shall be given to those with better educational qualifications and record of service. The Collector will consider the case of all the candidates nominated under clause (b) and may, at his discretion, interview at the head quarter of the district such of them, as he may consider necessary. In selecting the candidates for promotion regard shall be had to (1) record of previous serice, (2) integrity (3) character, and (4) intelligence and ability” The aforesaid Rule namely Rule 8 was amended in the year 1962. The amendment brought in the year 1962 reads as follows: “(A) In sub rule (i), between the words “Assistant Registrar Kanungos” and “who have put in not less than” the words “and the Land Records Clerks appointed from amongst Lekhpals” shall be inserted: and (B) after sub-rule (i), the following shall be added as another sub-rule: “(I-a) A common gradation list of permanent Assistant Registrar Kanungo and Land Records Clerks appointed from amongst Lekhpals shall be maintained according to their date of confirmation on 4 their substantive posts for the purpose of their selection to the post for the post of Registrar Kanungo, provided that, if in two cases the date of confirmation is the same, seniority shall be determined according to the dates of their substantive appointments as Lekhpals and if their date of substantive appointment is also the same, seniority shall be determined in accordance with their age “and © in sub- rule (ii) i. in clause (b), to delete the word “or” occurring between the words is “have passed the Junior” and “High School Examination” and the words “are not more than 35 years of age on the first day of January of the year in which the nomination is made” occurring between the words “higher examination of the State” and “and are considered suitable” shall be deleted, ii. in the first sentence of clause (f), for the words “clause (a)”, the words “clause (b)” shall be substituted and iii. in clause (f), for the second sentence beginning with the words “the names of listed candidates” and ending with the words “length of their service” the following shall be substituted: “The name of listed candidates shall be arranged according to the date of their selection, provided that the Le4khpals selected on the same date shall rank inter se according 5 to their respective position on the gradation list of Lekhpals” What is relevant here for our purposes is that earlier (prior to the amendment) only such Patwaris were to be asked “option” for the post of Registrar Kanungo, who were less than 35 years of age. Consequently prior to 1962 only such Patwaris were liable to be considered for higher post of Registrar Kanungo who were below the age of 35 years. This stood amended in the year 1962 and the condition of being less than 35 years was removed from the statute. It is worthwhile to note that the government authorities who are responsible to make such promotions never considered the 1962 amendment while doing the exercise of promotion of Patwaris to the post of Registrar Kanungo. Therefore inadvertently or in total ignorance of law the earlier promotions have been made from the post of Patwari to the post of Registrar Kanungo only considering those Patwaris who had not attained the age of 35 years. In the year 2002, when in the State of Uttarakhand fresh exercise for promotion from the post of Patwaris to the post of Registrar Kanungo was under way and Patwaris who were junior were being promoted to the post of Registrar Kanungo, and seniors were ignored for promotion to the post of Registrar Kanungo, it was challenged by some Patwaris in a writ petition being Writ Petition No. 870 (S/S) of 2004. The principal contention of these petitioners in this writ petition (Writ Petition No. 870 (S/S) of 2004) was that they had opted for promotion to the post of Registrar Kanungo, yet they are not being considered. At this juncture, it is pertinent to mention that there are two streams of promotion from the post of Patwaris, Stream (A) is of Registrar Kanungo and Stream 6 (B) is that of Supervisor Kanungo. Each Patwari is free to exercise his option in order to be considered for any of these streams for promotion. The case of the petitioners in Writ Petition No. 870 of 2004 (S/S) was that although they had exercised their option for promotion to Registrar Kanungo, yet they were not promoted and instead juniors to them have been promoted, whereas Rule 8 provides that the promotion would be based on the basis of seniority, subject to the rejection of the unfit, and the age restriction of 35 years, stands omitted after 1962. A learned Single Judge of this Court allowed the said writ petition (Writ Petition No. 870 of 2004 (S/S)) on 16.2.2010 in view of the amended provision in Rules where the learned Single Judge was of the view that petitioners were liable to be considered for promotion to the post of Assistant Registrar Kanungo, irrespective of their age. Relevant portion of the order dated 16.2.2010 reads as under: “In the light of the aforesaid, it is clear that the petitioners, being eligible and being the senior most, were denied an opportunity of being promoted on account of the respondents by not following the amendment made in Rule 8 of the Rules of 1958. This Court finds that the petitioners are entitled to a writ of mandamus. Consequently, the writ petition is allowed. A writ of mandamus is issued commanding the Collector, Udham Singh Nagar to consider the promotion of the petitioners to the post of Assistant Registrar Kanungo and, if found eligible, as per the amended Rule 8 of the Rules of 1958, consequential orders of promotion would be passed within three 7 months from the date of production of the certified copy of this order. In the event, the petitioners are found to be senior to the persons who had been promoted earlier, the petitioners, would accordingly be placed above the junior persons.” Consequent to the passing of such judgment in Writ Petition No. 870 of 2004 (S/S), the Additional District Magistrate vide order dated 19th March, 2010 called for option from 32 Patwaris and 8 Lekhpals asking them to give their options for promotion to the post of Registrar Kanungo. This Circular / Order of the Additional District Magistrate dated 19th March, 2010 was challenged by the same petitioners in Writ Petition (S/S) No. 167 of 2010 Sudesh Chandra and another Vs. District Magistrate and others stating that in view of the judgment and order dated 16.2.2010 in Writ Petition No. 870 of 2004 (S/S) passed by the learned Single Judge the benefit was liable to be given only to those petitioners (i.e. petitioners in Writ Petition No. 870 of 2004 (S/S)) since they were the ones who had exercised their options in the year 2002 and vide the said judgment benefit of promotion could be given only to them as such were the directions of the learned Single Judge in that writ petition and the Additional District Magistrate has wrongly interpreted the judgment of the learned Single Judge and asked options from all eligible Patwaris and Lekhpals. While the said writ petition being Writ Petition (S/S) No. 167 of 2010 was filed a learned Single Judge of this Court stayed the said Circular / Order vide its interim order 2.4.2010, which reads as follows: “Mr. Manoj Tiwari, Advocate assisted by Mr. Alok Mehra, Advocate for the petitioners. 8 Mr. Subhash Upadhyay, Brief Holder for the respondents. The Collector, Udham Singh Nagar initiated the process of filling up the post of Assistant Registrar Kanoongo in the year 2002 and invited applications from eligible candidates to submit their options. The petitioners being eligible for such post, submitted their option for promotion to the post of Assistant Registrar Kanoongo but were not promoted and, consequently, filed the writ petition No. 870 of 2004 (S/S). The said writ petition was allowed by a judgment dated 16th February, 2010. A writ of mandamus was issued commanding the Collector to consider the promotion of the petitioners to the post of Assistant Registrar Kanoongo and, if found eligible as per the amended Rule 8 of the Rules of 1958, consequential orders of the promotion would be passed within three months. It was also directed that if the petitioners were found to be senior to the persons who had been promoted earlier, the petitioners would accordingly be placed above the junior persons. Based on the aforesaid orders of the writ court, the impugned circular dated 19th March, 2010 has been issued inviting applications from other persons who had not applied for promotion to the post of Assistant Registrar Kanoongo. Prima-facie, it appears that the opposite parties are exceeding the directions issued in the judgment of the Court dated 16th February, 2010. The learned Standing Counsel appearing for respondent Nos. 1 and 2 will file a counter affidavit within three weeks. 9 List for admission thereafter. Until further orders, the circular dated 19th March, 2010 shall not be given effect to.” Consequently when the Circular itself was stayed, the Additional District Magistrate vide its order dated 24.4.2010 has promoted two persons namely Sudesh Chandra and Vijendra Kumar (who are the petitioners in Writ Petition (S/S) No. 167 of 2010) as Registrar Kanungo. The impugned order dated 24.4.2010 refers to three orders/judgment, one passed by this Court in Writ Petition No. 870 of 2004 (S/S) (judgment and order dated 16.2.2010), as it has already been referred above, the order-dated 26.3.2010 passed in Special Appeal No. 22 of 2010 and the order dated 2.4.2010 passed in Writ Petition No. 167 of 2010 (S/S). On 2.4.2010, a selection committee was constituted and the selection committee recommended the promotion of Sudesh Chandra and Vijendra Kumar to the post of Registrar Kanungo and consequently they have been promoted. This promotion has now been challenged by petitioners in Writ Petition No.505 of 2010 (S/S). Now, therefore both these writ petitions i.e. Writ Petition No. 167 of 2010 (S/S) and Writ Petition No. 505 of 2010 (S/S) are being decided by this common order. The contention of the petitioners (in Writ Petition No. 505 of 2010 (S/S)) is that in view of the judgment of learned Single Judge dated 16.2.2010 passed in Writ Petition No. 870 of 2004 (S/S), the options were liable to be invited from all Patwaris irrespective of their being below or above the age of 35 years as this was also the requirement of law and since this was not done, the entire exercise of promotion, under which only 10 respondents nos. 3 and 4 have been granted promotion is bad. The petitioners in Writ Petition No. 167 of 2010 (S/S), on the other hand, have built up their case on a premise that the judgment passed by the learned Single Judge in Writ Petition No. 870 of 2004 (S/S) was only in their favour and it pertains to their case alone. According to these petitioners, this ground is further fortified by the fact that the said judgment was challenged in Special Appeal No. 22 of 2010 Mohan Singh and others Vs. Collector / District Magistrate, Udham Singh Nagar and others by some private individuals and not by the State. The grounds of challenge were that the petitioners had not impleaded them as a party in the writ petition (in Writ Petition No. 870 of 2004 (S/S)) and since they already stand promoted, the judgment of the learned Single Judge dated 16.2.2010 will adversely affect them. The Special Appeal therefore was disposed of by the Division Bench of this Court with certain directions only. However, since much reliance has been placed on the judgment passed by the Division Bench of this Court in Special Appeal No. 22 of 2010 in order to harp upon the point that the judgment of the learned Single Judge was only pertaining to the petitioners in Writ Petition No. 870 of 2004 (S/S) and no benefit is liable to be given to any other person, it is necessary that the entire judgment of the Special Appeal be quoted here. The judgment dated 26.3.2010 passed in Special Appeal No. 22 of 2010 reads as under: ““1. Learned counsel for the appellants states that the appellants are liable to be adversely affected by the order passed by the learned Single Judge dated 16.2.2010 (while disposing of Writ Petition (S/S) NO. 870 of 2004), it is submitted, that in case respondent nos. 3 and 4 are found suitable for promotion to the post of Assistant Registrar Kanoongo, as per the 11 order passed by the learned Single Judge the appellants will automatically rank junior to him. Despite being adversely affected, learned counsel for the appellants states, that the appellants were not impleaded as party respondents in Writ Petition (S/S) No. 870 of 2004. 2. Since it is not disputed at the hands of the learned counsel for the appellants that respondent nos. 3 and 4 were wrongly ignored for consideration for promotion to the post of Assistant Registrar Kanoongo when the appellants were considered as such, learned counsel for the appellants states that the appellants do not dispute the directions issued by the learned Single Judge, whereby respondent nos. 3 and 4 have been directed to be considered for promotion to the post of Assistant Registrar Kanoongo by convening a meeting of the Special Departmental Promotion Committee. 3. In the aforesaid eventuality, the issue that remains for consideration is the consequential seniority, inter se, between the appellants and respondents nos. 3 and 4, in the event respondent nos. 3 and 4 are found suitable to the post of Assistant Registrar Kanoongo by the special Departmental Promotion Committee. Insofar as the instant issue is concerned, learned counsel for the appellants states that the appellants would be satisfied if the order passed by the learned Single Judge dated 16.2.2010 disposing of Writ Petition (S/S) No. 870 of 2004 is modified by directing the respondents to determine the inter se seniority of the rival parties on the basis of the statutory rules. Insofar as the instant modification is concerned, learned counsel for the respondents (including the private respondents) state that they have no objection to the same. 4. In view of the above, the instant Special Appeal is disposed of with the direction to the respondent to first consider the suitability of respondent nos. 3 and 4 in terms of the directions issued by the learned Single Judge. Thereupon, if respondent nos. 3 and 4 are found suitable, their inter se seniority as against the appellants herein shall be 12 determined under the prevalent statutory rules.” It must be noted that since the Circular dated 19.3.2010 called for options from all the eligible candidates, the petitioners in Writ Petition No. 167 of 2010 (S/S) had challenged it harping on the fact that the order dated 16.2.2010 passed by the learned Single Judge in Writ Petition No. 870 of 2004 (S/S) and the order dated 26.3.2010 passed by a Division Bench of this Court in Special Appeal No. 22 of 2010 were pertaining to them alone and the benefits could be granted only to them and no other person is liable to be considered for promotion to the post of Registrar Kanungo. The contention of the petitioners in Writ Petition No. 505 of 2010 (S/S) is that since they had already crossed the age of 35 years, they were never asked for any option as the government was working under a misconception that only such employees (i.e. Patwaris in the present case) will be asked to exercise options who are under 35 years. On these admitted set of facts, the contention of the petitioners in Writ Petition No. 167 of 2010 cannot be accepted that the benefit of lifting of the embargo of 35 years will only be applicable in their case cannot be accepted. Evidently, there is nothing on record to suggest that options were ever called from such Patwaris who were above the age of 35 years at that point of time. Admittedly, the Administrative Authorities while asking for options from Patwaris were ignorant of the fact that the embargo of 35 years which stood in the original Rules stood repealed in the year 1962 and thereafter there was no such embargo under the Rules. All the same, relying upon the unamended Rules, the authorities had only called for options from those Patwaris who were less than 13 35 years of age. Evidently the petitioners in Writ Petition No. 167 of 2010 (S/S) were also above 35 years of age and were never asked to exercise their options. It is a different matter that they may have exercised it. Logically since options were not called from those Patwaris who were above 35 years of age there was no occasion for those who had crossed the age of 35 years to exercise this options. It makes no difference whatsoever in view of this Court that a certain number of Patwaris, including the petitioners in Writ Petition (S/S) No.167 of 2010 had earlier exercised their options irrespective of the fact that no options were called from them. It is again an admitted fact which has been candidly accepted by the Standing Counsel that they had only asked for options from those Patwaris who were less than 35 years of age and amendment in the Rules in the year 1962 was never in their knowledge. The legal position therefore would be that after 1962, Rules did not require that only such Patwaris are liable to be promoted to the post of Registrar Kanungo, who are less than 35 years of age. In other words, as per the law existing after 1962 all the Patwaris irrespective of the fact whether they are under 35 years of age or over 35 years of age were liable to be considered for promotion and options were liable to be called from all of them. This has not been done! There is nothing in law which stops all Patwaris from exercising their option, and all Patwaris are liable to be considered and each must be asked to exercise this option. Therefore, Writ Petition (S/S) No. 167 of 2010 fails inasmuch as calling for options from all the eligible Patwaris vide Circular / Order dated 19.3.2010 appears to be perfectly in accordance with law. Writ Petition No. 167 of 2010 (S/S) stands dismissed. 14 Writ Petition No. 505 of 2010 (S/S) is allowed to the extent that since there is no embargo in the Rules, namely, Uttar Pradesh Subordinate Revenue Ministerial (Registrar Kanungo and Assistant Registrar Kanungo) Service Rules, 1958 for the upper age limit of Patwaris for consideration for promotion to the post of Registrar Kanungo. The respondents are hereby directed to call for options from all eligible candidates including the petitioners irrespective of their age. It is made clear that since the Rules clearly stipulate that the promotion to the post of Registrar Kanungo (from amongst the Pawaris) will depend upon the seniority subject to rejection of unfit, the seniority list shall be taken into consideration while making these promotions. It is further made clear that if the respondents find, after calling for the options that the candidature of the petitioners is fit for promotion to the post of Registrar Kanungo, they shall be deemed to have been promoted to the post of Registrar Kanungo from the date their juniors were promoted as Registrar Kanungo. The Court must, however, note a seemingly important submission of the petitioners (in writ Petition (S/S) No. 167 of 2010). Mr. Manoj Tiwari, learned Senior Advocate appearing for the petitioners has submitted that the judgment and order of the learned Single Judge of this Court (in Writ Petition (S/S) No. 870 of 2004) by which the first claim of the petitioner was decided for promotion to the post of Registrar Kanungo was only limited to the petitioners as they were ones who had approached the Court. In other words, the counsel submits that it would be a judgment “in personam” and not a judgment “in rem”. Judgments “in personam” and “in rem” are well understood concepts in law. It would, 15 however, be wholly unnecessary to dwell on this issue for the simple reason that the claim of the petitioners (in Writ Petition (S/S) No. 505 of 2010) is not based entirely upon the judgment of the learned Single Judge (in Writ Petition (S/S) No. 870 of 2004) but it is based on the statutory law applicable in the service condition of the petitioners. Simply stated, the petitioners who are Patwaris can be promoted to the post of Registrar Kanungo irrespective of whether they are under the age of 35 years or not. It is for this reason that the claim of the petitioners (in Writ Petition (S/S) No. 505 of 2010) has been upheld, and that of petitioners in