IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 63 of 2004 Govind Ram S/o Shri Pati Ram R/o Village Patal, Patti Khatasue District Pauri Garhwal .……… Appellant. Versus State of Uttaranchal and others ……… Respondents Mr. Alok Singh, Senior Advocate with Mr. Raman Kumar Sah, Advocate for the appellant. Mr. Subhash Upadhyaya, Brief Holder for the State. JUDGMENT Coram: Hon’ble V.K. Gupta, C.J. Hon’ble J.C.S. Rawat, J. Per J.C.S. Rawat, J. This is a Special Appeal against the judgment and order dated 01.10.2004 passed by the learned Single Judge in Writ Petition No. 214 (S/S) of 2002 whereby the writ petition of the writ petitioner Dhirendra Singh Rawat was allowed and quashed the order dated 03.04.1995 and 29.08.1995 passed by the Commissioner Garhwal Division. 2. The petitioner/respondent No.5 Dhirendra Singh Rawat filed a writ petition before the learned Single judge for the following reliefs:- “(A) Issue a writ, order or direction in the nature of certiorari quashing the order dated 3.4.1995 (Annexure-3) passed by the Divisional Commissioner-respondent No.3. (B) Issue a writ, order or direction in the nature of certiorari quashing the order dated 29.08.1995 passed by Divisional Commissioner, Garhwal Division respondent No.3, as communicated by the District Magistrate vide his order dated 4.10.1995 (Annexure-5A). (C) Issue a writ, order or direction in the nature of mandamus commanding the respondent No.2-Board of Revenue to dispose of the petitioner’s representation dated 12.4.1995 (Annexure-5A) pending before it. (d) Issue any other writ, order or direction which this Hon’ble Court deems fit and proper in the circumstances of the case. (e) Award cost to the petitioner.” 3. It is the admitted case of the parties that the writ petitioner Dhirendra Singh Rawat and the appellant Govind Ram have been working as Lekhpals in the Garhwal Division, Pauri. That a selection committee was constituted for the promotion of Assistant Registrar Kanoongo in the year 1992 in which three names namely Ashok Kumar, Bharat Mohan Singh and Govind Ram-appellant were selected by the selection committee and recommended for being promoted as Assistant Registrar Kanoongo. The writ petitioner Dhirendra Singh Rawat did not appear before the selection committee in the year 1992 hence he was not selected in that year. According to the select list for the year 1992, Ashok Kumar whose name was at serial No. 1 and Bharat Mohan Singh whose name was at serial No. 2 were given promotion vide order dated 18/08/2003 to the post of Assistant Registrar Kanoongo. Since the name of the appellant was at serial No. 3, hence he was placed in the waiting list. A fresh selection list for the year 1994 to the post of Assistant Registrar Kanoongo was prepared in accordance with Rule 8 of U.P. Avar Rajasva Lipik (Registrar Kanoongo and Sahayak Registrar Kanoongo) Sewa Niyamawali, 1958 (hereinafter referred as 1958 Rules) and the writ petitioner Bharat Singh Rawat was selected at serial No. 1 in general category by the duly constituted selection Committee. The appellant Govind Ram has not applied afresh before the selection committee and the name of the writ petitioner and others were forwarded by the S.D.M. alongwith their recommendation for the promotion of Assistant Registrar Kanoongo. Consequently, the writ petitioner Bharat Singh Rawat was given appointment by promotion on 04/06/1994. The appellant Govind Ram feeling aggrieved by the said promotion of the writ petitioner filed representation claiming his promotion on the post of Assistant Registrar Kanoongo. The representation of the appellant was allowed on 03/04/1995 by the Commissioner Garhwal Division. Feeling aggrieved by this, a review application preferred by the writ petitioner Dhirendra Singh Rawat before the Commissioner and the same was rejected on 29/08/1985 and as such, the writ petitioner-Dhirendra Singh Rawat was reverted as Lekhpal. Feeling aggrieved by the orders 03/04/1995 and 29.08.1985 of the Commissioner Garhwal Division, the writ petitioner Dhirendra Singh Rawat preferred a writ petition before the learned Single Judge. 4. The writ petitioner Dhirendra Singh Rawat alleged that the order of the Commissioner setting aside his appointment was illegal and against the rules. The respondents in its counter affidavit alleged that the selection committee held in the year 1992 recommended three names of Lekhpal for promotion as Assistant Registrar including the appellant. Among the three recommended persons, two were appointed as Assistant Registrar Kanoongo whereas the appellant being on waiting list number 3 was to be promoted whenever any vacancy would occur. The Collector instead of appointing the appellant on the post of Assistant Registrar from the waiting list, illegally prepared a fresh list for the promotion to the post of Assistant Registrar Kanoongo and the writ petitioner- Dhirendra Singh Rawat was promoted from the post of Lekhpal to Assistant Registrar Kanoongo. The list prepared in the year 1992 in which the name of the writ petitioner was kept in waiting list number 3 was valid for a period of three years. 5. The learned Single Judge, while holding that the life of the select list was one year prepared in the year 1992 and the appointment of the writ petitioner was in accordance with the rules quashed and set aside the orders dated 03/04/1995 and 29/08/1995 passed by the Commissioner. 6. The main controversy relates to the point as to whether the persons who were selected in the year 1992 and were kept in waiting list have a right of being promoted after one year when a fresh selection has taken place or the selection list prepared in the year 1992 shall remain operative for three years as alleged by the appellant. 7. The learned counsel for the appellant contended that the life of the select list prepared in the year 1992 was three years as has been indicated in the said list. Unless the appellant would have been promoted, no new selection process could have been taken place. It was further contended that Rule 8 (cha) clearly provides that District Magistrate is required to assess the vacancies likely to fill in next three years; and he has to select 2/3 number of persons of the vacancies which is likely to occur in the next three years. The learned counsel for the respondents refuted the contention and contended that there is no rule specifically providing a period of three years to the life of selected list. The Collector has to make the selection process in each and every year in view of Rule 8 of 1958 Rules. 8. Rule 8 reads as under:- “8. HkrhZ djus dh iz.kkyh %& (1)fu;e 7 ds v/khu jftLVªkj dkuwuxksa dh HkrhZ ds iz;kstuksa ds fy, p;u ,sls LFkk;h lgk;d jftLVªkj dkuwuxksvksa esa ls T;s"Brk ds vk/kkj ij fd;k tk;sxk] ftudh ml o"kZ dh igyh tuojh dks ftlesa p;u fd;k tk;] rhu o"kksZ dh lsok iwjh gks x;h gks] fdUrq vuqi;qDr O;fDr;ksa dks ugha fy;k tk;xkA (2) (d) lgk;d jftLVªkj dkuwuxksvksa dh HkrhZ ds iz;kstuksa ds fy, mu ys[kikyksa esa ls tks bl mi&fu;e ds [k.M ([k) ds v/khu ukekafdr fd;s x;s gksa] T;s"Brk ds vk/kkj ij p;u fd;k tk;xkk] fdUrq muqi;qDr O;fDr;ksa dks ugha fy;k tk;xkA ([k) dysDVj izR;sd o"kZ flrEcj esa] lgk;d jftLVªkj dkuwuxks dh ftys dh dksfV esa gksus okyh fjfDr;ksa dh yxHkx la[;k ekywe djsxk vkSj vius ftys ds izR;sd ijxuk vf/kdkjh ls] 'khrdkyhu nkSjs ds i'pkr~ ,sls ys[kikyksa dks] ftudh la[;k og fuf’pr djsxk] ukekafdr djus ds fy, dgsxk] ftUgksaus ys[kiky ds :i esa ml o"kZ dh] ftlesa ukekadu fd;k tk;] igyh tuojh dks de ls le 6 o"kksZ dh lsok iwjh dj yh gS] jkT; dh twfu;j ;k gkbZ Ldwy ijh{kk (vaxzsth ds lkFk) ;k mlds led{k ;k mlls Å¡ph ijh{kk mRrh.kZ dh gks] ftudh vk;q ml o"kZ dh] ftlesa 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;sa] fdUrq izfrcU/k ;g gS fd mu O;fDr;ksa dks izkFkfedrk nh tk;xh] ftudh f’k{kk lEcU/kh ;ksX;rk,a vkSj lsok ys[kk vf/kd vPNk gksxkA (x) dysDVj [k.M ([k) v/khu ukekafdr lHkh vH;fFkZ;ksa ds izlax ij fopkj djsxk vkSj vius foods ls muesa ls mrus O;fDr;ksa ls] ftUgsa og vko’;d le>s ftys ds eq[;ky; ij lk{kkRdkj djsxkA (/k) inksUufr ds fy, vH;fFkZ;ksa dk p;u djus esa fuEufyf[kr ckrksa dks /;ku esa j[kk tk;xk & ……………….. (M) dysDVj mu ys[kikyksa ds ukeks dh lwph rS;kj djsxk ftudks mlus inksUufr ds fy, pqu fy[k gksA mDr lwph esa vH;fFk;ksa dh la[;k fuEufyf[kr [k.M (p) esa crk;s gq, :i esa j[kh tk;xhA (p) mi;qDr [k.M (d) ds v/khu pqus gq, ys[kikyksa ds uke ml lwph esa p<k;s tk;saxs tks dysDVj vius ftys ds fy, j[krk gSA lwphxr vH;fFkZ;ksa 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[kikyksa 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;saxsA mDr lwph ys[kikyksa dh la[;k mu fjfDr;ksa dh la[;k dh yxHkx nks frgkbZ gksxh ftudh ftys ds lgk;d jftLVªkj dkuwuxks dh dksfV (cader) esa rhu o"kZ dh vof/k esa gksus dh lEHkkouk gS] fdUrq ftys ds fy, Lohd`r lgk;d jftLVªkj dkuwuxksvksa dh la[;k dh nks frgkbZ ls de ugha gksxhA” 9. From the perusal of Rule 8 (2) (kha), it is evident that the District Magistrate shall prepare the list of vacancies occurred during the year and he will also obtained the report from S.D.M. to nominate the Lekhpals for promotion as Assistant Registrar Kanoongo. Thus, this provision clearly reveals that the District Magistrate has to prepare a list in each and every year and has to seek the report from S.D.M. for the nomination of the Assistant Registrar Kanoongo. The learned counsel for the appellant tried to emphasize Rule 8 (2) (cha) in which it has been provided that the Collector shall prepare a select list after the interview and after going through personal record, 2/3 persons of the vacancies likely to occur within three years. It is not provided in the said Rule that the life of the list so prepared under Rule 2 (kha) would be three years. It cannot be inferred from the language used in Rule (2) (cha) that the select list would remain valid for three years. The intention of the Legislature has to be seen while interpreting a particular rule or statute. It has clearly been indicated in Rule (2) (kha) that the Collector would assess the vacancies in the month of September in every year. There is no indication in the Rules that the select list would remain valid for three years. If the interpretation of Rule (2) (cha) is accepted as contemplated by the learned counsel that the select list prepared by the Collector would remain valid for a period three years, the provision contained in Rule (2) (kha) would be redundant and there would be no use to assess the vacancies of Assistant Registrar Kanoongo in the month of September in every year. 10. Apart from this, if the intention of the rule framers would have been to keep the select list valid for three years, there would not have been a restriction of preparing the select list only of 2/3 number of persons of the vacancies which is likely to occur in the next three years. If the intention of the rule framers would have been to keep the select list valid for a period of three years, there would have been an indication in the rule to prepare the select list of more eligible persons than the vacancies likely to occur in the next three years. Thus the learned Single Judge was justified in holding that the life of the select list was only for one year. 11. We do not find any infirmity in the finding recorded by the learned Single Judge. We are completely in agreement with the findings of the learned Single Judge and the learned Single Judge was justified in allowing the writ petition. The appeal is liable to be dismissed and is dismissed accordingly. (J.C.S. Rawat, J.) (V.K. Gupta, C. J.) Dated 6th May, 2008 Shiv