SUDHANSHU DHULIA, J. - (1.) HEARD learned counsel for the petitioners, learned Standing Counsel for the State of Uttarakhand as well as learned counsel for the private respondents.
(2.) 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 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 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 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 ((THELAW)) 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 to their respective position on the gradation list of Lekhpalsâ
(3.) 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.;