Hon. K. M. Joseph, C.J. (Oral)

1. Appellants are the writ petitioners. In fact, appellant no. 1 is son of appellant no. 2. Appellant no. 1 and respondent no. 6 were candidates for selection to the post of Assistant Accountant in Treasury Department. The prayer sought in the writ petition, is as follows:

“1. A writ, order or direction in the nature of Certiorari so as to quash the appointment of the respondent no. 6 who has been wrongly and illegally selected and appointed on the post of Assistant Accountant for the aforesaid cases.

2. A writ, order or direction in the nature of Mandamus directing respondents 1 to 4 and 7 to act in terms and accordance with law by considering the candidature of the petitioner on the aforesaid post of Assistant Accountant as advertised in which the power has appeared and also passed successfully.

2A. A writ or order or direction in the nature of Certiorari and Mandamus quashing the act of respondent nos. 1 to 4 and 7 by declaring the said act of respondents no. 1 to 4 and 7 of declaring result of the computer test in a wrongful and illegal in view of the same being not in conformity of Article 14 and 16 of the Constitution of India. This Hon’ble Court may also be further please to direct respondents no. 1 to 4 and 7 to fill the vacant post which still continue to exist by appointing petitioner no. 1 and other similarly place candidates on such vacant posts.”

2. Initially, there were two prayers but subsequently, prayer 2A was added by way of amendment, on amendment application being allowed. Learned Single Judge noted the case of the appellant to be that appellant no. 1 had typed more key depression than respondent no. 6. Appellant no. 1 and respondent no. 6 secured equal marks namely 135.50. As per Rules, when two persons secured equal marks, older one would be selected. As respondent no. 6 was older than appellant no. 1, he was selected. Learned Single Judge did not find any merit in the contention of the appellants and accordingly, dismissed the writ petition.

3. We heard Mr. B.K. Pal, Advocate for the appellants, Mr. C.S. Rawat, Addl. Chief Standing Counsel for the State of Uttarakhand, Mr. Prashant Khanna, Advocate for respondent no. 6 and Mr. Rajendra Dobhal, Sr. Advocate with Mr. Shubhang Dobhal, Advocate for respondent no. 7.

4. Learned counsel for the appellants would submit that actually, appellant no. 1 had typed more than 5000 key depression and selection must be made on the basis of merit. Action of the respondents is discriminatory and arbitrary and merit cannot be sacrificed by providing that when two candidates secured equal marks, then older must be selected. He would also submit that discretion cannot be exercised extraneously. He would further submit that actually, appellants have also amended the writ petition and sought prayer 2A, which according to him, is challenge to the provision itself. He would also rely on different judgments & orders passed by Hon’ble Apex Court and other High Courts. The first order, on which reliance is placed, passed in the case of Krishan Yadav Vs. State of Haryana reported in 1992 Supp. (2) SCC 118, which we notice is an interim order. Second is the judgment passed by High Court of Mysore reported in 1972 (1) Mys. LJ 563. The decision of the said Court involved challenge to the validity of the selection on the ground that there has been reservation for scheduled castes in excess of what should have been legitimately reserved for them. We do not see how it can assist the appellant’s case. Third is the judgment passed by learned Single Judge of Karnataka High Court reported in 1981 (3) SLR 270, which related to selection made to the post of English typist in Karnataka Public Service Commission. The contention there was that under the Rules there was no provision for holding typing test and if marks awarded in the typing test was excluded, petitioner would have secured more marks. Learned Single Judge took the view that there