H. Swarup, J. - (1.) Nityanand Kulshresth and Subedar, the petitioners, were working as Lekhpals. In accordance with Rule 8 of the U. P. Subordinate Revenue Ministerial (Registrar Kanoongos and Assistant Registrar Kanoongos) Service Rules, 1958, a list was prepared of the Lekhpals entitled to be promoted as Assistant Registrar Kanoongos. The petitioners' names were included in the list and on vacancy being available the petitioners were promoted and posted as officiating Assistant Registrar Kanoongos on different dates. When the original list was prepared on 21-9-66, the names of Nityanand and Subedar were not included. On representation being made by them their names were also included in the list by an order dated 28-1-68. A final list was then prepared. In this list of thirteen persons, the name of Subedar appeared at serial No. 7, that of Nityanand at serial No. 8, and those of Om Prakash and Prem Kishore, respondents, at serial Nos. 10 and 13, respectively.
(2.) Feeling aggrieved by these names being placed below those of the petitioners, Om Prakash and Prem Kishore filed an appeal before the Board of Revenue in accordance with Rule 9. The relevant part of Rule 9 reads as follows : "No appeal shall lie against non-selection of Lekhpal for appointment as an Assistant Registrar Kanoongo but a listed Lekhpal shall have a right to appeal to the Director against the removal of his name from the list to be maintained under Rule 8 or his reduction to a lower position in that list or when he is not appointed according to his position on the list." According to respondents Nos. 2 and 3, they ought to have been placed higher that the petitioners and instead of the petitioners being appointed Registrar Kanungos they ought to have bee appointed. The Board of Revenue passed the impugned order on this appeal and held that the inclusion of the names of the petitioners after a year and half by the District Magistrate was not proper. The Board accordingly set aside that order and directed that the names of Subedar and Nityanand were to be considered for nomination by the Sub-Divisional Magistrate when the next selection is made. The grievance of the petitioners is that this order was passed by the Board of Revenue without giving them any opportunity of hearing. It is not denied that the petitioners were not heard. Learned Standing Counsel has, however, contended that this Court should go into the merits and if it finds that the order including their names in the list was not a good order then no interference be made. I do not think it proper in these proceedings to go into the merits when the matter had gone up in appeal before the appellate authority. As the Board of Revenue was exercising its appellate jurisdiction under the Rules and the order which it ultimately passed effected the rights of the petitioners, the Board should have given the petitioners an opportunity of being heard.
(3.) Learned Standing Counsel also relied on a decision of this Court in the case of Tribhuwan Das v. Board of Revenue, Civil Misc. Writ No. 1376 of 1968 in which this Court had held that the order passed by the Board of Revenue could not be held to be bad only because the petitioners were not given an opportunity of hearing. This Court however had, in the same judgment, dealing with the point observed : "The objection is merely technical, be cause in the writ petition the petitioners have had the chance of establishing the merits of their claim. I have heard them on merits and for that reason I would not deem it a fit case for interference on this ground." As I am not hearing the parties on merits, the ground taken by the petitioners regarding the opportunity of hearing before the Board of Revenue cannot be taken as not a ground for interfering with the order of the Board of Revenue.;