IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1906 of 2009 with CWP Nos. 2909/20009, 1895/2009, 2179/2009, 2196/2009, 2950/2009 & 4666/2009. Decided on : November 26, 2010 CWP No. 1906/2009 Parveen Kumar & others Vs. State of HP & Others. CWP No.2909/2009 Parkash Chand & others Vs. State of HP & Others. CWP No. 1895/2009 Layak Ram & others Vs. State of HP & Others. CWP No. 2179/2009 Amar Dev & others Vs. State of HP & Others. CWP No. 2196/2009 Manoj Kumar & others Vs. State of HP & Others. CWP No. 2950/2009 Sumit Kumar & others Vs. State of HP & Others. CWP No.4666/2009 Veena Negi Vs. State of HP & Others. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner(s) : Mr. Sanjeev Bhushan, Mr. J.L. Bhardwaj and Mr. Raj Kumar Negi, Advocates. For the Respondents: Mr. R.K. Bawa, Advocate General with Mr. Ramesh Thakur, Assistant Advocate General. 1 Whether reporters of Local Papers may be allowed to see the judgment? …2… Surjit Singh, J. (Oral) Petitioners, in all the seven writ petitions, are the persons, who, pursuant to a selection process for qualified Patwari candidates, initiated in the year 2005 and accomplished in 2006, were selected and imparted training of 1½ year. They have approached this Court by means of the present writ petition, for issuance of following directions to the respondents, i.e. State of Himachal Pradesh, through its Principal Secretary (Revenue), Director of Land Records, Director of Land Consolidation and Deputy Commissioners of various Revenue Districts. “i) That the writ petition in the nature of mandamus may kindly be issued directing the respondents to consider the candidature of the petitioners for offering them appointment on regular basis as Patwaris on the regular scale shown in Annexure P-3 issued at the time of advertisement for fill up the posts of Patwaris. ii) That the writ in the nature of certiorari may kindly be issued for quashing the order dated 19.1.2009 issued by respondent No.1 to the effect of recommending to adjust 140 Patwaris of Land consolidation Department against 350 vacant posts available with the Deputy Commissioners after completion of all the formalities on secondment basis. iii) That the writ in the nature of certiorari may kindly be issued for declaring the amendments made vide Notification dated 17.3.2009 as inoperative and ultra-vires in the case of the …3… petitioners who have been imparted the training under the old rules. iv) That the writ in the nature of mandamus may kindly be issued restraining the respondents to fill up the sanctioned posts of the petitioners as Patwaris from other departments, especially when the petitioners are available to serve the respondents for which the petitioners humbly prays.” 2. In the year 2005, there were about 375 vacant posts of Patwaris in Revenue Department, Settlement Department and Consolidation Department. An advertisement was published, inviting applications and also requisitions were sent to various Employment Exchanges, for sponsoring candidates, to be trained for appointment as Patwaris. Names of the petitioners were sponsored by Employment Exchanges. Sample of requisitions, which were sent to Employment Exchanges, is available on the record of CWP No.1906/2009, as Annexure P-3. As per this sample requisition, Exchanges were required to sponsor the registered unemployed persons, for selection, for being imparted 1½ year training, requisite for appointment of Patwaris. In the said requisition forms, it was stated that on completion of training, candidates will be appointed as Patwaris in the ensuing years in the pay-scale of `3120-5160 with minimum start of `3220/-. All the petitioners in these writ petitions were selected and similar office orders were issued by various Deputy Commissioners, in respect of the candidates allocated for appointment in their respective Districts. Order issued by …4… Deputy Commissioner, Solan, is available as Annexure P-4 in CWP No.1906/2009. The same is dated 7.8.2006. Order contains names of 24 selected candidates, who had been allocated to Solan District. The order reads that the candidates had qualified for training of Patwaris, who after undergoing 1½ year training, commencing on 1.9.2006, were accepted as Patwari Candidates of Solan District, as per provision laid down in Chapter 3 of H.P. Land Records Manual, 1992. 3. Chapter 3 of H.P. Land Records Manual, 1992, vide Para 3.4 provides for recruitment and promotion of Patwaris in Mohal, Settlement and Consolidation Departments. It says that their recruitment and promotion will be governed by the Rules contained in Appendices I, III and V of the Manual. Language of all the three Appendices is similar. The only difference is that Appendix-I pertains to Mohal Patwaris, Appendix-III to Settlement Patwaris and Appendix V to Consolidation Department Patwaris. Pay scale mentioned in all the three sets of Rules, under which Patwaris are to be appointed, by direct recruitment, is similar. The Rules provide for selection of candidates to be entered as qualified Patwari candidates in a register maintained by the Deputy Commissioner in the case of Mohal Patwaris and in the case of other two Departments, registers maintained by such Departments. Appointments to the posts of Patwaris are required to be made on the basis of merit from amongst the qualified candidates, who are entered in the aforesaid registers. All the three sets of aforesaid Rules were …5… notified in the year 1992 and shall, hereinafter, be referred to as Rules of 1992. 4. All the petitioners, after undergoing training of 1½ year, were subjected to written examination. They passed the examination and were declared to have qualified as Patwari Candidates by December, 2008. They were issued certificates, like the one, available as Annexure P-7 in CWP No.1906/2009. Thereafter, in the month of January, 2009, Financial Commissioner-cum-Principal Secretary (Revenue), issued a letter dated 19.1.2009 (Annexure P-10 in CWP No.1906/2009), abolishing 109 posts of Patwaris in Consolidation Department and making a recommendation to adjust 149 surplus Patwaris of Land Consolidation Department as Mohal Patwaris, in the offices of Deputy Commissioners. First grievance of the petitioners is against this order Annexure P-10 (available in CWP No.1906/2010). 5. On 17.3.2009, notification Annexure P-12 (in CWP No.1906/2009), amending the aforesaid three sets of Rules of 1992 and incorporating a provision by way of Clause 15 (C), was issued, for appointment of Patwaris, on contract basis, on payment of a fixed amount of salary, in addition to appointment in regular pay-scale. Petitioners are aggrieved by this notification also. According to them, this notification, having been issued subsequent to their selection and their qualifying for appointment to the post of Patwaris, after completing the training, cannot be made applicable to them, as a right had vested in them to be appointed in regular pay scale. …6… 6. One of the petitioners is aggrieved by the change in the Rules of 1992, to the effect that the appointment will be offered, in the order of merit, as obtained on the basis of examination, at the end of training and not on the basis of merit obtained at the time of selection, for undergoing training, as was the provision before amendment of 2009. 7. Stand taken by the respondents is that in the year 2005, a policy decision was taken by the government to fill-up vacancies, arising in future, on contract basis. It is stated that amendment in Recruitment and Promotion Rules has been carried out, keeping in view the aforesaid policy decision and that now vide Notification dated 10.8.2009, Rules of 1992 have been replaced and repealed by another set of Rules, copy Annexure P-7 in CWP No.2909 of 2009. It has also been stated in a supplementary affidavit of Financial Commissioner-cum- Principal Secretary (Revenue), filed in CWP No.2909 of 2009, that a Division Bench of this Court, vide judgment dated 22.7.2010, has already decided another set of seven writ petitions, filed by qualified Patwari Candidates, who were situated similarly to the petitioners in the present writ petitions, and that the present matters are covered by the said judgment. 8. I have heard learned counsel for the parties and gone through the record. 9. According to the learned Assistant Advocate General and the supplementary affidavit filed by the F.C.-cum-Principal Secretary (Revenue), policy decision, to make recruitments, on contract basis, for all category of employees in various …7… departments of government, was taken in the year 2005, vide notification dated 12.12.2003, Annexure-E and notification dated 8.9.2005, Annexure-F, in CWP No. 2909/2009. A reading of the two notifications shows that government directed various departments to amend their rules, regarding recruitment and promotion of employees to various categories, so as to make provision for appointment on contract basis also. There is no reference in either of the two notifications that any decision had been taken not to make any appointment in regular pay-scales and to fill all the vacancies available or arising in future, only on contract basis. In any case, even after the amendment of the Rules of 1992, pursuant to the aforesaid two communications, the Rules provide for appointment both, in regular pay-scale as also on contract basis, on payment of fixed salary. 10. It is submitted by the learned Assistant Advocate General that since the petitioners have not been appointed so far and now an amendment has been carried out in the Rules providing for appointment on contract basis, government has the option to appoint the petitioners either in regular pay-scale, as prescribed in the new set of Rules, notified on 10.8.2008, or on contract basis on a fixed sum of money, as salary. 11. When the petitioners were selected for training, it was held out to them that they will be appointed in the regular pay-scale. They underwent training for 1½ year, without having been paid any stipend or allowances. Some of the petitioners, I have been told, were postgraduates, when they applied for being selected for Patwaris’ training and they had the option to get …8… employed as teachers or school lecturers, on contract basis, on payment of fixed salary, but they opted for Patwaris training, as it was held out to them that they will be appointed in the regular pay-scale and thus their emoluments were supposed to be higher than the amount they would have received, on being appointed as teachers or school lecturers, on contract basis. Thus, the petitioners have, on the promise held out to them, acted to their disadvantage. 12. As noticed hereinabove, the requisitions, which were sent to Employment Exchanges, specifically indicated that the selected candidates, on successful completion of training, would be appointed in the regular pay-scale. Now, the respondents, by their act, are estopped from not offering appointments to the petitioners in regular pay scale but on contract basis. 13. Learned Assistant Advocate General again insists that when there is a policy decision by the government to make appointment on contract basis, there cannot be any question of estoppel or legitimate expectation of the petitioners to be appointed in regular pay-scale. As already pointed out, there is no such policy decision. 14. Otherwise also, such a plea is not available to the respondents. Hon’ble Supreme Court in Mohd. Raisul Islam and others Vs. Gokul Mohan Hazarika and others, (2010) 7 SCC 560, (Para 37), has held that when the process of selections starts under un-amended Rules, the government cannot take the stand that it still was entitled not to make …9… appointments of persons from amongst the candidates selected, in terms of the process, initiated under the old Rules. 15. It has been pointed out during the course of hearing that one of the Deputy Commissioners has even appointed all the qualified Patwari candidates allocated to his District, in regular pay scale. Now, if other Deputy Commissioners appoint the candidates allocated to their Districts, on contract basis, that would be discriminatory for them. 16. As regards the contention that the present matters are covered by a Division Bench judgment of this Court in CWP No.1207/2009 alongwith a bunch of similar writ petitions, delivered on 22.7.2010, suffice it to say that the said judgment deals with only appointment of qualified Patwari candidates. Questions whether the qualified candidates are entitled to be appointed in regular pay scale or on contract basis were not gone into these cases. 17. Issue regarding abolition of posts in Consolidation Department and adjustment of surplus Patwaris of that Department as Mohal Patwaris was not agitated during the hearing. Rather, it was pointed out that even after the adjustment of surplus Patawaris of Consolidation Department, there were enough vacancies to adjust all the selected candidates who number about 150. 18. Point regarding basis of merit, raised in one of the petitions, as referred to in para 6 of this judgment, was also not addressed during the course of hearing. …10… 19. In view of the above stated position, all the writ petitions are allowed and it is ordered that the petitioners shall be considered for appointment, according to the merit obtained by them, on the basis of final examination of Patwaris’ training, and their appointments, as and when made, shall take place in regular pay-scale and not on contract basis, on payment of fixed amount of salary. All the writ petitions and pending apaplications stand disposed of accordingly. November 26, 2010 (ss) (Surjit Singh), J