2025:HHC:16740 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No.4667 of 2020 Announced on: 28th May, 2025 __________________________________________________________ Gita Ram …..Petitioner Versus Chief-Executive Officer-cum Secretary HIMUDA and Others …Respondents Coram Hon’ble Mr. Justice Vivek Singh Thakur, Judge Hon’ble Mr. Justice Ranjan Sharma, Judge Whether approved for reporting? Yes For the petitioner: Ms. Meenakshi Sharma, Advocate. For the respondents: Ms. Seema Azad, Advocate, vice Mr. Jeevesh Sharma, Advocate for respondents No. 1 and 2. Mr. Shagun Sharma, Advocate, vice Mr. Arun Kaushal, Advocate, for respondent No.3. Mr. Narender Sharma, and Mr. Surej Sharma, Advocates, for respondent No.4, though ex-parte. Ranjan Sharma, Judge Petitioner-Gita Ram, a regular Class-IV Beldar, has assailed the promotion of respondents 3 and 4 as Mason, in Respondent No.1-Authority, seeking the following relief(s):- 2025:HHC:16740 - 2 - “That in view of the facts and circumstances as well as submissions made herein above the applicant pray for quashing of impugned communications Annexure A/1 with a direction to convene review DPC & further for quashing of Annexure A/2 with a direction to promote applicant from the date juniors are promoted with all consequential benefits, in the interest of justice.” FACTUAL MATRIX: 2. Case of the petitioner as set up by Learned Counsel is that petitioner was engaged as daily paid Beldar in March 1996. On completion of requisite 8 years of service, petitioner was regularized as Class-IV Beldar in the year 2004. It is averred that five posts of Mason were vacant in Respondent No.1-Authority and the petitioner was senior in terms of tentative seniority list dated 26.07.2016, [Annexure A-6] as he figured at seniority No.128 whereas, Respondents 3 and 4 namely Rajinder Kumar and Ram Chand, who were junior at seniority No.139 and 140 were promoted as Masons by holding Departmental Promotion Committee and by issuing the promotion orders on 07.07.2017, [Annexure 2025:HHC:16740 - 3 - A-1]. This promotion order dated 07.07.2017 [Annexure A-1] has been assailed in instant petition. In addition, petitioner has raised a further claim for promotion as Mason, on the ground, that Respondent No.1-Authority has granted relaxation in educational qualification to the petitioner on 27.03.2018, as contained in the communication dated 04.04.2018 [Annexure A-8] and, based on this relaxation, Respondent-Authority was bound to consider and promote the petitioner as Mason but instead of considering the petitioner, Respondent-Authority had issued another communication on 09.05.2018 [Annexure A-2], inviting fresh options from Regular Class-IV Beldars working in the department, just to oust the petitioner for promotion, even after having been granted relaxation in educational qualification by the Respondent-Authority. 2(i). It is further averred that the petitioner had submitted representations for promotion on 12.04.2016, 2025:HHC:16740 - 4 - then on 09.12.2016, then on 13.07.2017 and then on 03.05.2018 [Annexure A-7 colly], but the petitioner has not been promoted as Mason till day, which was alleged to be unfair, unjust, illegal, arbitrary, discriminatory and malafide. PROCEEDINGS BEFORE STATE ADMINISTRATIVE TRIBUNAL AND NOW BEFORE THIS COURT: 3. Petitioner filed an Original Application No. 3814 of 2018 before State Administrative Tribunal, assailing promotion orders dated 07.07.2017 [Annexure A-1] of Respondents 3 and 4 as Mason and has assailed the communication dated 09.05.2018 [Annexure A-2], seeking fresh options for promotion as Mason against available vacancy. The State Administrative Tribunal issued notice on 04.07.2018, directing Respondents No. 1 & 2 to file reply. Notices were issued to private Respondents 3 & 4 also. 3(i) Pursuant to issuance of notice, Respondent No.4 did not choose to put in appearance, in instant case and he was proceeded against ex-parte. However, 2025:HHC:16740 - 5 - Respondent No.3 appeared in the instant proceedings. REPLY-AFFIDAVIT ON BEHALF OF RESPONDENTS NO.1 AND 2-STATE AUTHORITIES 4. Respondents No. 1 and 2 have filed Reply- Affidavit dated 28.07.2018, on the affidavit of Chief Engineer, HIMUDA, Shimla. 4(i) Reply-Affidavit narrates the incumbency of petitioner, admitting that, the petitioner was engaged as Beldar on daily waged basis on 15.03.1996 and he was brought on work charge establishment as Beldar on 2.8.2007. Reply-Affidavit further indicates that Respondent-Authority had issued the Recruitment & Promotion Rules for the post of Mason on 24.04.2006 [Annexure R-1], with the Reply-Affidavit. These Rules of 2006 were repealed and new Recruitment & Promotion Rules for the purpose of Mason were notified by the Respondent-Authority on 17.6.2017, which are annexed as [Annexure A-4] with the writ petition. Reply- Affidavit further indicates that as per the new Recruitment & Promotion Rules, for the post of Mason 2025:HHC:16740 - 6 - issued on 17.06.2017, [Annexure A-4], the cadre of Mason consisted of five posts and out of these five posts, four posts were to be filled-up by way of promotion from amongst the regular Class-IV incumbents and having 8 years of service as Class-IV who possessed the educational qualification of Middle examination or its equivalent as prescribed in the Rules. It is further averred that one post fell to the share of direct recruitment which was to be filled-up in accordance with the provisions contained in the Rules. 4(ii). Reply-Affidavit further indicates that after issuance of the New R&P Rules on 17.6.2017, [Annexure A-4], Respondent-Authority, convened the DPC for filling up four promotional posts, out of total five posts of Mason by holding DPC on 29.06.2017, [Annexure A-3]. Pursuant to the recommendation of Departmental Promotion Committee, four eligible Class- IV Beldars, were promoted as Mason Grade-II by Respondent No.1-Authority on 07.07.2017 [Annexure 2025:HHC:16740 - 7 - A-1], which includes Respondents 3 and 4, who are stated to be juniors to petitioner also. Reply-Affidavit further indicates that petitioner was not eligible for promotion to post of Mason Grade-II, on the date, the DPC was convened on 29.06.2017, [Annexure R-3] and also on the date of promotion of the juniors on 07.07.2017, [Annexure A-1]. However, Reply-Affidavit further indicates that petitioner had submitted representations, seeking relaxation in educational qualification of Middle which was accorded by the Board of Directors in its meeting on 27.3.2018, [Annexure A-8], as contained in communication dated 21.4.2018 with the writ petition. It is further averred that after grant of relaxation though case of petitioner, Gita Ram was under consideration but, one Jeet Ram who asserted him to be senior to the petitioner-Gita Ram submitted a representation on 20.2.2018, [Annexure R- 4] for promoting him against the vacany of Mason. On receipt of representation of Jeet Ram, (supra) the 2025:HHC:16740 - 8 - facts were verified, which were found to be true and therefore, the case of the petitioner could not be further processed for promotion as Mason Grade-II, at the relevant time. In this background, prayer has been made for dismissing the writ petition. NO REBUTTAL BY THE PETITIONER: 5. Petitioner has not chosen to file any rejoinder to Reply-Affidavit filed by official Respondents 1 and 2. In absence of any rejoinder, the averments made in Reply-Affidavit remain uncontroverted. 6. Heard Ms. Meenakshi Sharma, Learned Counsel for the petitioner, Ms. Seema Azad, Learned Counsel for Respondents No. 1 and 2, Mr. Shagun Sharma, Advocate, for Respondent No.3 and Mr. Narender Sharma, Advocate, for respondent No.4. ANALYSIS: 7. Taking into account the entirety of the facts and circumstances and the material on record, this Court is of the considered view that the orders dated 2025:HHC:16740 - 9 - 07.07.2017 [Annexure-1] promoting Respondents 3 & 4 as Mason Grade-II, do not suffer from any infirmity, illegality or perversity for the following reasons:- 7(i) Respondent-Authority had issued the Recruitment and Promotion Rules for the post of work charge Mason Grade-II, in HIMUDA on 24.04.2006 [Annexure R-1]. These Rules of 2006 were repealed and the New Recruitment and Promotion Rules were notified on 17.06.2017, [Annexure A-4]. As per the New Recruitment and Promotion Rules, 2017, [Annexure A-4], the cadre of Mason Grade-II in HIMUDA was a State Cadre consisting of 5 posts. Notably, as per Rule 7 & 8 of Recruitment and Promotion Rules the posts of Mason were to be filled by direct recruitment or by promotion, who possess educational qualifications of Middle or its equivalent in terms of Rule 6, 7 & 8(ii) of the Rules. As per Rule 10 and 11 provided that 20% posts [one post] were to be filled-up by direct recruitment and 80% posts by promotion [four posts] 2025:HHC:16740 - 10 - from amongst regular Class-IV incumbents having eight years of regular service as Class-IV, who possess the qualification of Middle or its equivalent. Based on New Recruitment and Promotion Rules, 2017, Respondent No.3-HIMUDA convened DPC for filling 4 promotional posts under 80% promotion quota on 29.06.2017, [Annexure R-3]. Pursuant to the recommendations of DPC, four incumbents, including Respondents No. 3 and 4 were recommended for promotion as Mason Grade-II, and all of them were ultimately promoted on 07.07.2017 [Annexure A-1]. 7(ii). In the backdrop of undisputed facts, as referred to above, it is pertinent to note that the DPC for filling four promotional posts of Mason Grade-II was convened on 29.06.2017, [Annexure R-3] in accordance with the New Recruitment & Promotion Rules of 2017 [Annexure A-4]. On the date of consideration i.e. the date of convening of DPC, the petitioner was not eligible as he did not possess the 2025:HHC:16740 - 11 - essential qualification of Middle in terms of 7 & 8 read with Rule 10 and 11 of New Recruitment and Promotion Rules at the relevant time. In these circumstances, once the petitioner was not educationally qualified and did not possess Middle Qualification on the date of consideration i.e. the date of convening of DPC on 29.06.2017, [Annexure R-3] then, petitioner has neither any right nor any claim for promotion to the post of Mason Grade-II, at the relevant time, when, these four posts were filled-up on 07.07.2017 [Annexure A-1]. 7(iii) First contention of Learned Counsel for petitioner is that in the Tentative Seniority List of Beldars [Class-IV], the petitioner-Gita Ram was shown as senior by placing him at seniority No. 128 whereas, Respondent No.3-Rajinder Kumar figured at seniority No.139 and Respondent No.4 Ram Chand figured at seniority No.140 of the said list. Based on the assertion of being senior, the petitioner contended that juniors i.e. Respondents 3 and 4 could not have been 2025:HHC:16740 - 12 - promoted as Mason Grade-II by convening DPC on 29.06.2017, [Annexure R-3] and by issuing the promotion order on 07.07.2017, [Annexure A-1] over and above the petitioner-senior. The above contention of Learned Counsel for petitioner is misconceived, for the reason, that mere seniority will not entitle an incumbent for automatic promotion. Seniority of an incumbent for purpose of promotion will be considered only, amongst eligible candidates. Admittedly, though the petitioner was senior to Respondents No. 3 & 4 but since he was not eligible for want of educational qualification of Middle as mandated under the Recruitment & Promotion Rules of 2017 on the date of consideration i.e. the date of convening of DPC and on even the date of issuance of promotion orders then, the claim of the petitioner for automatic promotion on the basis of seniority alone but by ignoring the eligibility, is misconceived and is without merit. 2025:HHC:16740 - 13 - 7(iv). While negating the claim for promotion of a senior, who was not eligible mandating that for promotion the seniority has to be tested only amongst eligible in R. Prabha Devi and others versus Government of India, (1988) 2 SCC 233, in following terms: “15. The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved service in the grade of Section officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S. This rule is equally applicable to both the direct recruit Section officers as well as the promotee Section officers. The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre 2025:HHC:16740 - 14 - are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over- ride it in the matter of promotion to the next higher post. The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust violative of Articles 14 or 16 of the Constitution. It has been rightly held by the Tribunal: When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweight experience." 7(v) While dealing with the concept of seniority and eligibility, it has mandated that if senior is not otherwise eligible for consideration for promotion, then, such senior shall have to give way to eligible juniors for promotion, in Palure Bhaskar Rao and others versus 2025:HHC:16740 - 15 - P. Ramaseshaiah and others, (2017) 5 SCC 783, in following terms:- 16. Seniority and eligibility are also distinct concepts. As far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum- seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. 17. Merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. The instant case is a classic example for the said principle. The Reserve Sub-Inspectors selected and appointed on transfer as Sub-Inspectors (Civil) carries seniority from the date of appointment as Reserve Sub-Inspectors. But the eligibility for appointment by way of a transfer to the post of Inspector under the A.P. Police Service requires 6 completed years of service after being recruited to the category of Sub- Inspector of Police (Civil). In other words, though the Reserve Sub- Inspector selected and appointed on transfer as Sub-Inspector (Civil) may be seniormost in the category of Sub-Inspector of Police, but still he will be ineligible for consideration of appointment as Inspector in case he does not have 6 years of service as Sub-Inspector of Police (Civil). All his juniors who have 6 years of service as Sub-Inspector of Police and having been recruited to that post from 2025:HHC:16740 - 16 - different categories are entitled to steal a march over him as the rule now stands. The rule making authority in its wisdom has provided such a classification and we do not find any material on record to upset the said wisdom. Based on Rule 7, 8, 10 and 11 of Rules of 2017 and the mandate of law in the case of R. Prabha Devi and Palure Bhaskar Rao (supra), even if, the petitioner was senior but was ineligible then, the petitioner-senior cannot either claim automatic consideration or promotion as Mason on the basis of seniority alone, by ignoring the eligibility contained in the Rules. Thus, the denial of promotion of the petitioner, who was ineligible, on date of consideration i.e. date of DPC dated 29.06.2017 [Annexure R-3], leading to the promotion of eligible incumbents, despite being juniors on 07.07.2017 [Annexure A-1], is in accordance with the Service Rules and Law and the promotion orders do not call for any interference. 8. Second contention of Learned Counsel for the petitioner is that four promotional posts out of total 2025:HHC:16740 - 17 - five posts of Mason Grade-II were vacant during the year 2015. These posts were filled-up by convening the DPC and by issuing the promotion orders on 07.07.2017, [Annexure A-1] and, therefore, these four promotional posts were to be filled-up in accordance with the old Recruitment and Promotion Rules and not by applying new Rules of 2017. The above contention is misconceived and is without merit, for the reason that; firstly, even a perusal of Old Recruitment and Promotion Rules of 2006 [Annexure R-1], provide that post of Mason Grade-II, were to be filled-up from incumbents, who possess Middle Examination or its equivalent as provided in Rules 7 and 8 of the Old Rules and since the petitioner did not pass Middle pass [8th class], but was only 5th pass and was not eligible, therefore the non-consideration of the petitioner for promotion as Mason Grade-II under the Old Rules of 2006, [Annexure R-1]; does not suffer from any illegality; and secondly, 2025:HHC:16740 - 18 - the New Recruitment and Promotion Rules were notified on 17.6.2017, [Annexure A-4] and after notifying the New Rules, the DPC was convened on 29.6.2017, [Annexure R-3] and the promotion orders were issued on 07.07.2017, [Annexure A-1]. Thus, even as per new Rules of 2017 once the petitioner was not eligible for want of Middle Qualification then, the petitioner has no right to assail the promotion of other four eligible incumbents, as Mason Grade-II including Respondents 3 & 4 on 07.07.2017, [Annexure A-1]. 9. Third contention of Learned Counsel for petitioner is that the vacancies of 2015 should have been filled-up as per old Rules and not by applying new Rules of 2017. The above contention of Learned Counsel for the petitioner is devoid of any merit, in view of the mandate of Hon’ble Supreme Court in State of Himachal Pradesh and others versus Raj Kumar and others, (2023) 3 SCC 773 whereby, it has been 2025:HHC:16740 - 19 - mandated that consideration for promotion has to be governed by the Rules in force, on the date the consideration takes place; in the following terms: 82.2 It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates. 84. The decision in Deepak Agarwal is a complete departure from the principle in Rangaiah, in as much as the Court has held that a candidate has a right to be considered in the light of the existing rule. That is the rule in force on the date the consideration takes place. This enunciation is followed in many subsequent decisions including that of Union of India v. Krishna Kumar. In fact, in Krishna Kumar Court held that there is only a "right to be considered for promotion in accordance with rules which prevail on the date on which consideration for promotion take place.” 85.1 The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that, “the vacancies which occurred prior to the amended Rules would be governed by the old rules and not by the amended Rules”, does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution. It is hereby overruled. 87. We have already held that there is no right for an employee outside the rules governing the services. We have also followed and applied the Constitution Bench decisions in Union of India v. Tulsiram Patel and more particularly the decision in Roshan Lal Tandon v. Union of India that the services under the State are in the nature of a status, a hallmark of which is 2025:HHC:16740 - 20 - the need of the State to unilaterally alter the rules to subserve the public interest. The 2006 rules, governing the services of the Respondents came into force immediately after they were notified. There is no provision in the said rules to enable the Respondents to be considered as per the 1966 Rules. The matter must end here. There is no other right that Respondents no. 1 to 3 can claim for such consideration. 10. In the instant case, once new Rule came into force on 17.6.2017 [Annexure A-4], and the DPC for filling four posts Mason Grade-II was convened on 29.06.2017, [Annexure R-3] and the promotion orders were issued on 7.7.2017, [Annexure A-1] and the petitioner was not eligible on the date of consideration even as per new Rules, therefore, keeping in view the mandate of Rules and the dictum of the Hon’ble Supreme Court in the case of Raj Kumar (supra), the petitioner being not eligible, on the date of consideration [i.e. date of DPC meeting on 29.6.2017] therefore, the petitioner has neither any valid claim for consideration nor for promotion; and in these circumstances, the promotion granted to others including Respondents 3 & 4 on 07.07.2017 [Annexure 2025:HHC:16740 - 21 - A-1] does not suffer from any infirmity or illegality. 11. Fourth contention of Learned Counsel is that the petitioner was [5th primary pass] and he had submitted representation for granting relaxation in educational qualification of Middle as prescribed in Recruitment and Promotion Rules for the post of Mason Grade-II and once relaxation was accorded by Board of Directors on 27.3.2018, [Annexure A-8], therefore, the petitioner should have been considered and promoted as Mason Grade-II, from the date four incumbents including Respondents 3 & 4 were promoted on 7.7.2017, [Annexure A-1]. The above contention is misconceived for the reason, that relaxation in qualification granted by Board of Directors on 27.3.2018, [Annexure A-8] cannot operate retrospectively. Relaxation granted to the petitioner, entitles him for eligibility in terms of educational qualification. Based on this relaxation, the consideration has to be prospective only. Permitting 2025:HHC:16740 - 22 - relaxation to apply retrospectively shall defeat the intent of giving relaxation, resulting in administrative chaos so as to make the petitioner, who was ineligible [at the time of DPC dated 29.06.2017] to steal a march over eligible incumbents at that relevant time, which cannot be permitted on facts as well as in law. The claim of the petitioner for automatic promotion as Mason on the basis of relaxation and that too over and above the other eligible(s)-senior(s), including one Sh. Jeet Ram, who had asserted a claim for promotion by submitting representation on 20.04.2018 [Annexure R-4], shall result in defeating the principle governing promotion to “non-selection post” of Mason under Rule 5 of 2017 Rules [Annexure R-1]. Thus, the claim of petitioner for automatic promotion to non-selection post of Mason by ignoring the claim of other eligible-seniors including Jeet Ram (supra) cannot be permitted contrary to the mandate of Rule 5 of the rules. 12. Learned Counsel for petitioner contends, 2025:HHC:16740 - 23 - that the petitioner is that petitioner was granted relaxation in educational qualification by Board of Directors on 27.3.2018, [Annexure A-8] and after grant of relaxation, Respondent-Authority-HIMUDA could not invite fresh options from other Class-IV Beldars on 09.05.2018, [Annexure A-2], without considering the petitioner for promotion as Mason Grade-II. The above plea of Learned Counsel for the petitioner is of no assistance, for the reason, that grant of relaxation in educational qualification of Middle in case of petitioner on 27.03.2018, [Annexure A-8], only confers eligibility qua educational qualifications. Grant of relaxation in qualification, cannot in any manner be construed to conclude automatic consideration and promotion of the petitioner, by ignoring seniority, when, the promotional post of Mason Grade-II, is non selection post. After having granted relaxation, the consideration has to take place, so as to give effect to the principle of seniority-cum- 2025:HHC:16740 - 24 - fitness, being a non selection post, whereby, the claims of all other eligible incumbents including seniors, namely Jeet Ram and others have to be considered for promotion alongwith petitioner. Grant of relaxation cannot confer automatic right of consideration for promotion. Moreover, once a senior incumbent namely Jeet Ram vis-à-vis petitioner had submitted representation on 20.04.2018 [Annexure R-4] for considering him for promotion against the vacancy of Mason Grade-II then, the claim of Jeet Ram-senior cannot be given a go-bye and therefore, the plea of the petitioner for automatic promotion, on the basis of relaxation so granted over and above other eligible- senior incumbents including Jeet Ram and others cannot be acceded to dehors the principle of promotion on the principle of seniority-cum-fitness, being a non- selection post. CONCLUSION: 13. CONCLUSION: 13. In view of the above discussion and for the 2025:HHC:16740 - 25 - reasons recorded hereinabove, the instant petition is dismissed, in the following terms: (i) Promotion orders of respondents 3 & 4- juniors-eligibles as Mason Grade-II in HIMUDA on 07.07.2017, [Annexure A-1] are upheld; (ii) Claim of the petitioner for promotion as Mason Gr.-II, in view of relaxation in Educational Qualification of Middle by Board of Directors on 27.08.2018 [Annexure A-8] cannot be permitted to operate retrospectively and hence disallowed; (iii) Claim of the petitioner for automatic promotion as Mason Gr.-II after grant of relaxation over and above other eligible senior(s); cannot be allowed dehors the mandate of seniority-cum-fitness, being a non-selection post under Rule 5 of the Rules; (iv) Orders dated 09.05.2018 [Annexure A-2] inviting fresh options from eligible candidates is upheld; (v) Parties to bear respective costs. In aforesaid terms, the instant petition is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of, accordingly. (Vivek Singh Thakur) Judge (Ranjan Sharma) Judge 28th May, 2025 (himani)