Point of Law: 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.

JUDGMENT :

1. 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 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 respondent-Department in the year 1998 in terms of Recruitment & Promotion Rules, 1992. Thereafter, the seniority of the petitioners was maintained by the respondent-authorities 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::: 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 vis-a-vis their initial recruitment has 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 re