The case of the petitioners is that they were appointedas Patwaris in the respondent Department in the year 1998 in terms of Recruitment & Promotion Rules, 1992. Thereafter, the seniority ...
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High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 22
nd
DAY OF AUGUST, 2022
BEFORE
HON’BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION No.1393 of 2020
Between:
1. KULDEEP KUMAR SON OF
SH. SHANKAR DASS,
RESIDENT OF VILLAGE ASAN,
P.O. JASANA, TEHSIL
BANGANA, DISTRICT UNA,
H.P.
2. JOGINDER KUMAR, SON OF
NANAK CHAND, RESIDENT OF
VPO CHATARA, TEHSIL AND
DISTRICT UNA, H.P.
3. SURYA PARKASH SON OF
SH. AMAR NATH, RESIDENT
OF VILLAGE RAKKAR
COLONY, P.O. TABBA NEAR
SUVIDA FARM BASSI
COLONY, TEHSIL AND
DISTRICT UNA, H.P.
4. KAMAL DEV, SON OF SH.
HARI CHAND, FIELD
KANUNGO DULEHAR, SUB
TEHSIL DULEHAR, DISTRICT
UNA, H.P.
5. SATISH KUMAR, SONOF
SH. PREM CHAND, RESIDENT
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OF VPO NANGRAN, SUB
TEHSIL MEHATPUR,
DISTRICT UNA, H.P.
6. BALJEET SINGH, SONOF
SH. JAGIR SINGH, RESIDENT
OF VPO SANTOSHGHAR,
WARD NO.1, SUB, TEHSIL
MEHARPUT, DISTRICT UNA,
H.P.
7. ASHWANI KUMAR, SON OF
SH. RIKHI RAM, RESIDENT
OF VPO BASSAL, TEHSIL AND
DISTRICT UNA, H.P.
‘
….PETITIONERS.
(MR. NITIN THAKUR, ADVOCATE )
AND
1. STATE OF H.P. THROUGH
F.C.CUMPRINCIPAL
SECRETARY, (REVENUE)
GOVERNMENT OF
HIMACHAL PRADESH, H.P.
SECRETARIAT, SHIMLA2.
2. THE DEPUTY
COMMISSIONERCUM
COLLECTOR, UNA, DISTRICT
UNA, H.P.
3. SHRI SANTOSH DHIMAN,
S/O SHRI KISHAN
CHAND, AGED 57
YEARS, R/O VILLAGE
SAKON, TEHSIL
BANGANA, DISTRICT UNA
(H.P.) PRESENTLY WORKING
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AS KANUNGO,
TEHSIL OFFICE
BANGANA, TEHSIL
BANGANA, DISTRICT UNA
(H.P.)
4. SHRI VIJAY KUMAR S/O
SHRI KISHAN CHAND, R/O
VILLAGE NARHUN,
TEHSIL BANGANA, DISTRICT
UNA (H.P.) PRESENTLY
WORKING AS RECORD
KANUNGO, TEHSIL OFFICE
BANGANA, DISTRICT UNA
(H.P.)
5. SHRI TILAK RAM, S/O
SHRI AMAR NATH, R/O
VILLAGE MACHHALI,
TEHSIL BANGANA,
DISTRICT UAN (H.P.)
PRESENTLY WORKING
AS KANUNGO IN DISTRICT
UNA (H.P.)
6. SWAROOP CHAND, S/O
SH. NAND LAL,
AGED 58 YEARS,
PRESENTLY POSTED AT
VILLAGE KANGO,
CIRCLE YOL, TEHSIL
DHARAMSHALA, DISTRICT
KANGRA, H.P.
7. AJAY SINGH, AGED 56
YEARS, S/O LATE SH.
BHIKHAM SINGH,
R/O VILLAGE AN
P.O. MALNU, SUB
TEHSIL BHAWARNA,
TEHSIL PALAMPUR,
DISTRICT KANGRA,
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H.P. AND PRESENTLY
POSTED AT KANGO
PANCHRUKHI, TEHSIL
PALAMPUR, DISTRICT
KANGRA, H.P.
….RESPONDENTS.
(BY MR. ASHOK KUMAR, ADVOCATE GENERAL, WITH
M/S SUMESH RAJ, DINESH THAKUR & SANJEEV SOOD,
ADDITIONAL ADVOCATES GENERAL, MR. AMIT KUMAR
DHUMAL, DEPUTY ADVOCATE GENERAL & MR. MANOJ
BAGGA, ASSISTANT ADVOCATE GENERAL, FOR
RESPONDENTS NO.1 AND 2.)
(M/S ONKAR JAIRATH & SHUBHAM SOOD, ADVOCATES,
FOR RESPONDENTS NO.3 TO 5)
(MS. SEEMA GULERIA, ADVOCATE, FOR THE
APPLICANTS/PROPOSED RESPONDENTS IN CMP NOs. 7296
AND 7297 OF 2022)
Whether approved for reporting?
1
Yes
Reserved on: 08.08.2022
This petition coming on for orders this day, the Court passed the following:
J U D G M E N T
By way of this petition, the petitioners have prayed for
the following reliefs:
“i) That in view of the above mentioned facts and
circumstances, the impugned letter dated 20.2.2020
(annexure P4) may kindly be quashed and set aside and
the respondents may kindly be directed not to disturb the
1
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seniority of the petitioners as kanungo in District Una, in
the interest of justice and fair play.
ii) That the executive instructions dated 30.6.1997 being
in contravention to the statutory service rules of 1992,
may also kindly be quashed and set aside as the said
instructions have overruled the statutory rules notified in
the year 1992.
iii) issue a writ of mandamus directing respondents not to
implement Annexure P5 i.e. seniority list issued on
08.05.2020: and /or
iv) Issue a writ of cretiorari quashing and setting aside
Annexure P5 i.e. seniority list issued on 08.05.2020.”
2. The case of the petitioners is that they were appointed
as Patwaris in the respondentDepartment in the year 1998 in terms
of Recruitment & Promotion Rules, 1992. Thereafter, the seniority of
the petitioners was maintained by the respondentauthorities as per
the said Rules more so in terms of Rules 15 (A) and 15 (B) thereof.
According to the petitioners, the procedure for maintaining seniority
in the 1992 Rules clearly postulates that a register is required to be
maintained on the basis of merit selection test for the post of Patwari
from amongst the candidates sponsored by the Employment
Exchange. Rule 15 (B) provides that after completion of Patwari
training and passing of Patwari examination and practical training,
the appointments will be given to the incumbents in accordance with
the merit selection test and roster formed by the respondent
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authorities. According to the petitioners, the relevant procedure was
duly followed by the Department and the petitioners were also
promoted to the post of Kanungo in between December, 2016 to
May, 2019. It is further the case of the petitioners that the Revenue
Department of the Government of Himachal Pradesh has issued
Executive Instructions dated 30.06.1997. As per these Executive
Instructions, the procedure prescribed in the 1992 Recruitment &
Promotion Rules for determining seniority of Patwaris was altered.
These Executive Instructions are not sustainable in law for the
reason that the same cannot supplant the Recruitment & Promotion
Rules. The 1992 Rules were repealed vide notification dated
10.08.2009. Appointment of the petitioners was as per the 1992
Rules. Since, the appointment of the petitioners till December, 2016,
the seniority of the petitioners was duly maintained as per the 1992
Rules. Impugned instructions were not implemented earlier.
However, vide Annexure P4, i.e. communication dated 20.02.2020,
issued from the office of respondent No.1, addressed to respondent
No.2, direction was issued that seniority of Patwaris/Kanungos of
District Una be maintained as per the Executive Instructions dated
30.06.1997. According to the petitioners, communication issued to
this effect vide Annexure P4, as well as Executive Instructions dated
30.06.1997 are bad in law and not sustainable for the reason that
the seniority of the petitioners visavis their initial recruitment has
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to be determined as per the 1992 Recruitment & Promotion Rules
and the same cannot be determined in terms of the Executive
Instructions or subsequent directions dated 20.02.2020.
3. It is pertinent to mention that during the pendency of
the Writ Petition, CMP No.3925 of 2020 was filed by the petitioners,
seeking amendment of the petition, which was duly allowed by the
Court in terms of order dated 21.05.2020.
4. The petition is opposed by the State, who as per its reply
has taken the stand that instructions dated 30.06.1997 are not
contrary to the 1992 Recruitment & Promotion Rules as alleged and
these instructions are supplementary and only clarificatory and
explanatory in nature. It is also mentioned in the reply that the
revised final seniority list of Patwaris as on 12.03.2020 and revised
final seniority list of Kanungos as on 08.05.2020 have been issued to
rectify and to bring the previously issued defective seniority lists
inconformity with the mandate of the 1992 Recruitment & Promotion
Rules, read with instructions dated 30.06.1997. It is further the
stand of the State that the issue being raised in the present Writ
Petition is no more res integra and the same has already been
decided by the State Administrative Tribunal in terms of order dated
24.10.2018, passed in OAD No.391 of 2017, titled as Rajesh Kumar
and others Versus State of Himachal Pradesh.
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5. During the pendency of the petition, private respondents
were impleaded. They were also given due opportunity to put forth
their stand before the Court. Proposed respondents in CMPs
No.7296 and 7297 of 2022 were also heard. Formally, these
applications are allowed by impleading the applicants as party
respondents.
6. Learned counsel for the petitioners has argued that the
initial selection of the petitioners as Patwari candidates and their
subsequent appointment as such was as per the Recruitment &
Promotion Rules issued by the Revenue Department to the
Government of Himachal Pradesh dated 03.03.1992, i.e. the
Recruitment & Promotion Rules, 1992, for the post of Patwari, Mohal
(ClassIII Non Gazetted), copy whereof is appended with the petition
as Annexure P1. Learned counsel argued that these Rules were
framed in exercise of the powers conferred under the proviso to
Article 309 of the Constitution of India. Rules 15 (A) and 15 (B) of
the Rules which deal with the selection for training of Patwari
candidates and direct recruitment for the post of Patwari clearly
provide as to how the seniority of a Patwari candidate and of a
Patwari upon his direct recruitment has to be maintained and there
is no ambiguity or grey areas in the Rules in this regard. Learned
counsel further argued that the Executive Instructions (Annexure
P2) dated 30.06.1997, issued by the Financial Commissionercum
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Secretary (Revenue) to the Government of Himachal Pradesh on the
subject “appointment of Patwaris from the executive Patwari
candidates” are bad in law as the same supplant the provisions of
1992 Recruitment & Promotion Rules with regard to determination
of the seniority of Patwaris, which is not permissible in law. Learned
counsel argued that as the said Executive Instructions, overreached
and annuled the provisions of the Recruitment & Promotion Rules
with regard to the determination of seniority, therefore, these
instructions are per se void and are liable to be declared as such and
quashed. He has further argued that the impugned seniority lists
which have been now issued by the respondentDepartment by
placing reliance upon the said Executive Instructions are also thus
not sustainable in the eyes of law and are liable to be quashed and
set aside.
7. Mr. Ashok Sharma, learned Advocate General, while
opposing the petition and defending the act of the respondent
Department, argued that the Recruitment & Promotion Rules, 1992
only governed the recruitment of a Patwari candidate as well as the
appointment of a Patwari candidate, but neither Rules 15 (A) nor
Rule 15 (B) of the said Rules governs or provides as to how the
seniority of a Patwari, who is freshly recruited, is to be determined.
Learned Advocate General thus argued that in the absence of their
being any mechanism in the Recruitment & Promotion Rules for
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determining the seniority of the newly recruited Patwaris, Executive
Instructions dated 30.06.1997 only supplement the 1992
Recruitment & Promotion Rules. He submitted that these
instructions do not supplant the Recruitment & Promotion Rules as
has been argued by the learned counsel for the petitioners and
further as they only filled up the vacuum, which exists in the
Recruitment & Promotion Rules, therefore, there is nothing wrong
either in the issuance of the Executive Instructions or in the
issuance of the subsequent seniority lists which were so issued on
the basis of the objections which were received from the aggrieved
parties. No other argument was raised on behalf of the State in
defence of the impugned Executive Instructions.
8. Mr. Onkar Jairath, learned counsel appearing for
respondents No.3 to 5 and other learned counsel appearing for the
private respondents while adopting the arguments of learned
Advocate General argued that the subject matter being argued by
the petitioners is no more res integra and the same is squarely
covered by the judgments of this Court passed in CWP No.1906 of
2009, titled Praveen Kumar and others Versus State of H.P. & others
alongwith other connected matters, decided on 26.11.2010; LPA
No.345 of 2010, titled Prakash Chand and others Versus State of
H.P. and others and other connected matters, decided on 06.10.2015;
CWP No.295 of 2001, titled Shri Karan Singh and others Versus State
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of H.P. and another, decided on 06.01.2010 and thus argued that the
matter being mo more res integra, the present petition be dismissed.
9. I have heard learned counsel for the petitioners as well
as learned Advocate General and also learned counsel for the private
respondents. I have also carefully gone through the pleadings as well
as documents appended therewith and the case law cited.
10. It is not in dispute that the petitioners herein have been
recruited against the posts of Patwaris in the year 1998. It is also
not in dispute that the Recruitment & Promotion Rules which were
in vogue at the time when they the petitioners were initially
appointed for training as Patwari candidates and then as Patwaris,
were the Himachal Pradesh Revenue Department (Mohal ClassIII,
Non Gazetted) Recruitment & Promotion Rules, 1992. The moot
issue which this Court thus has to answer is as to whether Rule 15
(A) and Rule 15 (B) provided for the determination of the seniority of
Patwaris post their initial selection for training as Patwari candidates
and thereafter their direct recruitment for the post of Patwari or not?
It is relevant to mention at this stage that whereas as per the
petitioners, the mechanism of determining the seniority available in
Rules 15 (A) and 15 (B) of the 1992 Rules, according to the State,
this mechanism is not provided in Rules 15 (A) and 15 (B) and
therefore, the instructions dated 30.06.1997 supplement the Rules
to this effect.
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11. Before proceeding further, I will like to refer to the 1992
Rules, at this stage. In terms of the 1992 Rules, Annexure P1, the
post of Patwari is a ClassIII (Non Gazetted) post. The minimum
educational qualification required for direct recruits in terms of 1992
Rules is matriculation or Higher Secondary PartI or its equivalent
from a recognized University. Clause10 thereof, which deals of
method of recruitment provides that the post is to be filled in 100%
by direct recruitment from qualified Patwar candidates. Rule 15 (A)
deals with the selection for training of Patwari candidates and Rule
15 (B) thereof deals with direct recruitment for the post of Patwari.
The same are quoted hereinbelow:
“ 15(A) Selection for training of Patwari candidate:
(1) Selection for training to Patwari from amongst the
candidates sponsored by the Employment Exchanges in
HP. shall be made on the basis of written test and Viva
Voce test, the standard/syllabus etc. of which shall be
prescribed by the F.C. (Revenue).
(2) The maximum number of persons to, be selected by
each District Collector, as Patwari candidates shall be 2S%
of the cadre strength or vacancies likely to occure in the
next five years within the District which ever is less.
(3) The District Collector shall maintain a register of
Patwari candidates selected for training in accordance
with merit obtained in the selection test as prescribed in
subrule (1) supra. (4) Selected candidates shall have to
undergo Patwari training as laid down in the Land Records
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Manual at their own expenses. On the completion of
training. the candidates shall have to qualify the Patwari
examination by such standard and syllabus as may be
prescribed by F.C.(Revenue) from time to time.
(5) A candidate who for reasons to be recorded in writing
by the Distt. Collector for. not being able to successfully
complete the patwari training, the District Collector with
the approval of the F.C. (Revenue) may allow him to
undergo fresh training in the same Distt. in the next batch
and in case there is not training for the next batch during
the next year in the same Distt., the F.C. (Revenue) may
allow him to undergo the patwari training as a fresh
candidate in other districts.
(6) On passing of Patwari Examination. the candidate will
be considered as "Qualified Patwari Candidate."
Provided that a candidate who does not qualify the
patwar examination in the first attempt, he can qualify the
same in two subsequent successive examinations, which
shall be held for the purpose as prescribed by F.C.
(Revenue).
Provided further that the candidate who do not qualify in
the first attempt, their names will appear in the patwari
candidates register below the candidates who have
qualified in the first attempt in their own original order
after, striking off their names from previous original place.
Provided further that the candidates who do not qualify
in the second attempt, their names shall appear in the
patwari candidates register below the candidates who
have qualified in the second attempt in their own original
order after striking off their names from the previous
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original places assigned to the candidates passing the said
examination in second attempt:
Provided further that the candidates who fail to qualify
the examination in third attempt, their names shall be
struck off from the register maintained by the concerned
District Collector.”
15(B) Direct Recruitment for the post of Patwari:
A "Qualified Patwari Candidate" shall be offered the post
of Patwari strictly in accordance with the seniority
maintained in the patwari candidate register under role 15
(A) as per roster prescribed by the State Government for
filling up of vacancies reserved for the candidates
belonging to Scheduled Castes/Scheduled Tribes/
Backward Classes/other categories of persons from time
to time.
Provided that if a qualified candidate does not accept the
offer of appointment excepting the cases where the reasons
are given to the satisfaction of the Appointing Authority, his
name shall be struck off from the aforesaid register.”
12. A perusal of Rule 15 (A) demonstrates that selection for
training to Patwari from amongst the candidates sponsored by the
Employment Exchange is to be made on the basis of written test and
viva voce. The District Collector is to maintain a register of Patwari
candidates selected for training in accordance with merit obtained in
the section test as prescribed in subrule (1) of Rule 15 (A). Rule
15(A) (4) further provides that selected candidates have to undergo
Patwari training and on completion of training, the candidates have
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to qualify Patwari examination by such standard in syllabus as may
be prescribed from time to time. In terms of subrule (5), a candidate
who is not able to successfully complete the Patwari training may be
allowed to undergo fresh training in the same district in the next
batch and in case there is no training in the next batch during the
next year in the same district, then the F.C. (Revenue) may allow
him to undergo Patwari training as a fresh candidate in other
district. Subrule (6) thereof says that on passing of Patwari
examination the candidate will be considered as ‘qualified Patwari
candidate’. Rule 15 (B) provides that a ‘qualified Patwari
candidate’ shall be offered the post of Patwari strictly in
accordance with seniority maintained in the Patwari candidate
register under Rule 15 (A) as per the Roster prescribed by the State
Government for filling up the vacancies reserved for various
categories from time to time.
13. Thus, this Court is of the considered view that there is
no ambiguity in the language of Rule 15 (B) that offer of post to the
Patwari has to be strictly in accordance with seniority maintained
in the Patwari Candidate Register under Rule 15 (A) from
amongst qualified Patwari candidates . Now, subrule (3) of Rule
15 (A) clearly lays down that District Collector shall maintain a
register of Patwari candidates selected for training in accordance
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with merit obtained in the selection test as prescribed in subrule (1)
(supra). This, according to me is the seniority maintained in the
Patwari Candidate Register under Rule 15 (A) and thus, after a
Patwari candidate becomes a qualified Patwari candidate, he has to
be offered the post of Patwari strictly in accordance with the
seniority maintained in the Patwari Candidate Register under Rule
15 (A). Rightly or wrongly, in terms of the provisions of Rules 15 (A)
and 15(B) of the 1992 Rules, read together harmoniously the
appointment to the post of Patwari of a qualified Patwari candidate is
not dependent upon the merit gained by a Patwari candidate in the
process of his undertaking Patwari examination, but the same is
determined on the basis of seniority maintained in the Patwari
Candidate Register, i.e. Rule 15 (A) (3) to be precise. Therefore, in
view of above, there is merit in the contention of the petitioners that
Rules 15 (A) and 15 (B) of the 1992 Rules, clearly provide as to how
the seniority of Patwari is to be determined once they are offered the
said post after becoming a qualified Patwari candidate.
14. Now, in this backdrop, let us peruse the impugned
instructions (Annexure P2), dated 30.06.1997. The substituted
Clause lays down that the seniority of the appointed Patwari
candidate from accepted Patwari candidates is to be determined in
the order of merit determined on the basis of Patwar Examination
and practical training. Before proceeding further, it is necessary to
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juxtapose the amended Para 3.6 of the H.P. Land Records Manual,
19961997 with the unamended one. The Para as it stood before
amendment reads as under:
“Appointment of Patwaris:
3.6 The Deputy Commissioner, Settlement Officer and
Director, Consolidation of Holdings, shall appoint Patwari
candidates in accordance with the Rules contained in
Appendix 1, III and V of this Manual and instructions
issued by the H.P. Government in this behalf from time to
time.”
The Para after amendment reads as under :
“Appointment of Patwaris:
3.6 The Deputy Commissioner/Settlement Officers/
Director of Consolidation of Holdings, shall appoint
Patwari candidates from the accepted Patwari
candidates in order of merit determined on the basis of
patwar examination and practical training prescribed
under the Rules contained in Appendix, 1, III and V of
the H.P. Land Records Manual and instructions issued
by the Govt. of Himachal Pradesh from time to time.”
15. At this state, it is also necessary to take into
consideration the scope of the H.P. Land Record Manual. The
purpose of this Manual is to explain the laws and practices with
reference to making and maintenance of recordofrights and other
related records in land. The manual itself has been divided into 5
Sections with 21 Appendices. First Section, deals with duties and
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functions of various revenue functionaries right from village
Chowkidar to the Director of Land Records. Second Section, deals
with the maintenance and updating of land records. New Chapters
on Consolidation of Holdings, Demarcation of Boundaries, Land
Revenue Assignments, Prevention of Encroachments on Government
Lands and Computerisation of Land Records have been added in
this Section. Third Section, relates to Revenue Statistics. Fourth
Section, deals with Agricultural Census and Live Stock Census. Fifth
Section, contains miscellaneous topics. In this Section, new
Chapters on ‘Procedure for Issuing of Various Certificates, and
‘Training and Refresher Courses’ have been added.
16. Incidently, the H.P. Land Record Manual has nothing to
do with the recruitment of Patwaris per se, because said recruitment
obviously cannot be governed by the Land Record Manual as the
recruitment is to be governed by the relevant Recruitment &
Promotion Rules framed under the proviso to Article 309 of the
Constitution of India by the Government of Himachal Pradesh. Once,
recruitment to the posts of Patwari is governed by the relevant
Recruitment & Promotion Rules, it is not understood as to how the
seniority of the newly appointed Patwaris can be governed by some
Para of the H.P. Land Record Manual, 1997.
17. Now, if one again peruses the unamended Para 3.6 of
the H.P. Land Record Manual, the same simply provided that the
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concerned Revenue Officer shall appoint Patwari candidates in
accordance with the Rules contained in appendix 1, 3 and 5 of the
said Manual and instructions issued by H.P. Government in this
behalf from time to time. Qua this, there cannot be any dispute.
However, when one peruses the amended Para 3.6, the same
provided that the concerned Revenue Officer shall appoint Patwari
candidate from the accepted Patwari candidates in order or merit
determined on the basis of Patwar examination and practical
training prescribed under the Rules contained in appendix 1,3 and 5
of H.P. Land Record Manual and instructions issued by the
Government of Himachal Pradesh from time to time.
18. This Court is of the considered view that the amendment
which has been carried out in Para 3.6, to the effect that the
concerned Appointing Authority has been called upon to appoint
Patwari from amongst Patwari candidates in order or merit
determined on the basis of Patwar Examination an practical training
prescribed under the Rules, is not the spirit of the relevant
Recruitment & Promotion Rules with regard to determination of
seniority. This amendment is bad in the eyes of law as the same not
only supplants the 1992 Recruitment & Promotion Rules, but,
otherwise also it adds something in Para 3.6 of H.P. Land Records
Manual, which cannot be put in the Land Record Manual. This is for
the reason that the Court again reiterates that recruitment to the
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post of Patwari is not done as per the H.P. Land Record Manual, but
is done as per the Recruitment & Promotion Rules in vague at the
relevant time.
19. At this stage, it is also relevant to refer to the 2009
Recruitment & Promotion Rules appended with the petition as
Annexure P3, i.e. Recruitment and Promotion Rules for the post of
Patwari Mohal (ClassIII, NonGazetted) in the Department of
Revenue, Himachal Pradesh, which repealed the 1992 Rules. Rule
15 (6) of the 2009 Rules provides as under:
“15 (6) On passing of Patwari Examination. the candidate
will be considered as "Qualified Patwari Candidate."
Provided that a candidate who does not qualify the
patwar examination in the first attempt, he can qualify the
same in two subsequent successive examinations, which
shall be held for the purpose as prescribed by F.C.
(Revenue).
Provided further that the candidate who do not qualify in
the first attempt, their names will appear in the patwari
candidates register below the candidates who have
qualified in the first attempt in their own original order
after, striking off their names from previous original place.
Provided further that the candidates who do not qualify
in the second attempt, their names shall appear in the
patwari candidates register below the candidates who
have qualified in the second attempt in their own original
order after striking off their names from the previous
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original places assigned to the candidates passing the said
examination in second attempt:
Provided further that the candidates who fail to qualify
the examination in third attempt, their names shall be
struck off from the register maintained by the concerned
District Collector.”
20. Now, when one juxtaposes the provisions of Rules 15
(A) and 15 (B) of the 1992 Rules against Rule 15 (6) of the 2009
Rules, it can be made out from the ex facie reading of the 2009
Rules itself that in terms of this Rule, the offer of the post of
Patwari from amongst qualified Patwari candidate has to be made
strictly in accordance with the seniority maintained in the
qualified Patwari Candidate Register, in which seniority of the
qualified Patwari candidate is fixed in accordance with the merit
determined on the basis of Patwari training and practical training.
This demonstrates that what was intended to be done by
instructions Annexure P2, has now become a part of the
Recruitment & Promotion Rules since the year 2009. In other
words, after the coming into force of the 2009 Rules, but obvious
the seniority of Patwaris has to be determined as per Rule 15 (6),
in which both the merit determined on the basis of Patwar
examination and practical training gain prominence. But, fact of
the matter remains that before the 2009 Rules came into force, the
seniority of Patwaris was not to be determined on the basis of
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Patwar Examination and practical training and it was to be
determined solely on the basis of merit obtained in the selection
test as prescribed in Rule 15(A) (1) for Patwari candidate.
21. Hon’ble Supreme Court of India in K. Kuppusamy and
Another Versus State of T.N. and Others, (1998) 8 Supreme Court
Cases 469 has held that rules framed under the proviso to Article
309 of the Constitution are statutory rules and statutory rules
cannot be overridden by Executive Instructions or Executive
practice. Hon’ble Supreme Court held that till the rule is amended
the rule applies.
22. In Bimlesh Tanwar Versus State of Haryana and
others (2003) 5 Supreme Court Cases 604, Hon’ble Supreme Court
held that seniority is not a fundamental right and is merely a civil
right. Inter se the seniority of the candidates who are appointed on
the same day would be dependent on the rules governing the same
and only in the absence of any statutory rules, the general
principles may be held to be applicable.
23. In Dhananjay Malik and others Versus State of
Utrranchal and others, 2008) 4 Supreme Court Cases 171, Hon’ble
Supreme Court after placing reliance upon the Constitutional
Bench judgment of the Hon’ble Supreme Court in Sant Ram
Sharma Versus State of Rajasthan, AIR 1967 Supreme Court 1910
reiterated that the Government cannot amend or supersede
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High Court of H.P.23
statutory rules by Administrative Instructions, but if the rules are
silent on any particular point, the Government can fill up the gaps
and supplement the rules and issue instructions not inconsistent
with the rules already framed.
24. Hon’ble Division Bench of this Court in CWPOA No.51
of 2019, titled Jitender Singh Rangta and others Versus State of
Himachal Pradesh and another, decided on 10.07.2020, after
relying upon the judgments of the Hon’ble Supreme Court held
that corrigendum issued by an Executive Authority cannot
substitute the provisions contained in the Recruitment &
Promotion Rules framed under provision to Article 309 of the
Constitution of India.
25. In CWP No.1906 of 2009, titled Praveen Kumar &
others Versus State of HP & Others and other connected matters,
decided on 26.11.2010, the vires of the Executive Instructions
dated 30.06.1997 was neither a subject matter of the Writ Petition
nor the same has been answered by this Court. A careful perusal
of the judgment demonstrates that in the above mentioned
judgment no finding has been returned by this Court holding that
the Executive Instructions under challenge in the present Writ
Petition were ‘intra vires’.
26. Similarly, in LPA No.345 of 2010, titled Prakash
Chand & Ors. Versus State of H.P. & anr. and other connected
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High Court of H.P.24
matters, decided on 06.10.2015, which LPA arose out of the
judgment passed by this Court in CWP No.1906 of 2009, titled
Praveen Kumar & others Versus State of HP & Others and other
connected matters, again there was neither any challenge nor any
discussion or nor any adjudication on the legality of the Executive
Instructions dated 30.06.1997. In fact, it is pertinent to mention
that primarily the prayer of the petitioners in CWP No.1906 of
2009, titled Praveen Kumar & others Versus State of HP & Others
and other connected matters, as it appears from the record, was for
declaration that the amendment of the Rules in the year 2009 was
ultra vires and as the petitioners had been selected as Patwari
candidates in the year 2005, therefore, their service conditions are
to be governed after their recruitment as Patwaris in terms of the
Rules under which they were appointed and not under the 2009
amended Rules. Therefore, this Court is of the considered view
that these judgments relied upon by the respondents have not
decided the issue which has been urged by way of present Writ
Petition by the petitioners.
27. Coming to CWP No.295 of 2001, titled Shri Karan
Singh and Ors. Versus State of H.P. & anr, decided on 06.01.2010,
wherein this Court was dealing with the recruitment of Patwari
candidates and their appointment under the Himachal Pradesh
Patwar Service Rules, 1949 and in the said Writ Petition also,
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there was no challenge to the Executive Instructions subject
matter of the present Writ Petition.
28. Therefore, in view of the above discussion, this Writ
Petition is allowed and disposed of. The Executive Instructions
dated 10.07.1997 are held to be bad in law and ordered to be
quashed as they supplant the provisions of 1992 Recruitment &
Promotion Rules and not supplement the same. The seniority list
subsequently issued on the basis of said Executive Instructions
are also ordered to be set aside with direction to the respondents
to redraw the fresh seniority as was being done earlier without
referring to the annulled Executive Instructions. The promotions
which have been conferred upon the private respondents etc. on
the basis of their seniority as determined on the basis of the
Executive Instructions which have been struck down by this Court
are also ordered to be quashed and set aside with direction to the
respondents to hold Review Departmental Promotion Committee,
if so required and make promotions after determining the seniority
in terms of this judgment. No order as to cost. Pending
miscellaneous applications, if any, stand disposed of. Interim
order, if any, stands vacated.
(Ajay Mohan Goel)
Judge
August 22, 2022
(Rishi)
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