2026:HHC:21338-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4601 of 2023 Decided on : 03.06.2026 Uploaded on: 05.06.2026 Amar Singh and others .…Petitioners Versus State of Himachal Pradesh and others …Respondents Coram The Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes For the petitioners : Mr. Ashwani Kumar Sharma, Advocate. For the respondents : Mr. Pushpinder Jaswal, Additional Advocate General. Ajay Mohan Goel, Judge (Oral) The petitioners, by way of this petition, inter alia have prayed for the following reliefs:- “A. That the impugned act of respondent authorities be declared illegal, arbitrary and discriminatory whereby, they are considering the batch /seniority of the petitioners against the post of PET batch wise recruitment from the date they have acquired essential qualification in terms of amended R & P Rules, 2011 instead, from the date they had acquired 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:21338-DB essential qualification in term of pre-existing R & P rules, 1973. B. Writ of Mandamus be issued by directing the respondent authorities to consider the seniority / batch of present petitioners for appointment against the post of PET on batchwise basis in District Mandi and Kullu from the date they had acquired essential qualification in terms of Pre- existing R and P Rules of 1973, as they have acquired / upgraded their academic and Professional qualification in terms of amended R and P Rules of 2011 for the post of PET and hence, become eligible.” 2. The petitioners after acquiring one year Diploma course in PET i.e. Physical Education, in terms of the Recruitment and Promotion Rules, prevailing at the relevant time for appointment as a PET, i.e. 1973 Rules got themselves enrolled in the respective Employment Exchanges. However, subsequently in the year 2011, the new Recruitment and Promotion Rules, 2010, for appointment against the post of Physical Education Teachers Class-III (Non Gazetted), 2010 (hereinafter to be referred as ‘the 2010 Rules’) were brought into force and Bachelor’s degree in Physical Education was 3 2026:HHC:21338-DB made the minimum qualification for appointment against the post of PET. The petitioners acquired said qualification in the year 2013. 3. The contention of the petitioners is that their seniority for batch wise recruitment against the post of Physical Education Teacher should be construed from the date when they got themselves registered with the Employment Exchange on the strength of the one year Diploma course which was the requisite qualification at the time when they were enrolled with the Employment Exchange, whereas the contention of the Department is that their batch can be reckoned from the date when they acquired the qualification of Bachelor’s degree in physical education, which is the minimum qualification for appointment against the post in issue as per the Recruitment and Promotion Rules in vogue at the time of commencement of the process of recruitment. 4. It is the own case of the petitioners that when they completed one year Diploma in Physical Education, the 1973 Recruitment and Promotion Rules were in force. In terms of these Rules, the essential qualification prescribed for 4 2026:HHC:21338-DB appointment against the post in issue was Matriculation with one year Diploma in Physical Education. It is also the pleaded case of the petitioners that in terms of Annexure P-3, vide Notification dated 10.01.2011, the Himachal Pradesh Elementary Education Department Physical Education Teachers Class-III (Non Gazetted), Recruitment and Promotion Rules, 2010, came into force and in terms thereof, the minimum qualification for appointment against the post of Physical Education Teacher was as under:- 7. Minimum educational and other qualifications required for direct recruitment a) Essential Qualification: (a) Senior Secondary School (+2) or its equivalent examination passed with at least fifty percent marks and diploma in Physical Education (D.P.Ed) of a duration of two academic years from a University/Board recognized by HP Govt. OR (b) Bachelor's Degree in Physical Education with fifty percent marks (B.P.Ed.) from a University recognized by HP Govt. OR (Bachelor's Degree with Physical Education as an elective subject with fifty percent marks in Physical Education from a University recognized by HP Govt. OR (d) For Ex-Servicemen candidates Senior Secondary School (+2) or its equivalent examination with pass Course of PTI from Army School of Physical Education Poona. 05% relaxation in marks will be given to those who have at in least participated International/National/ SGFI/Sports competition or Position Holders in Inter-Zonal sports competitions. 5 2026:HHC:21338-DB b) Desirable Qualification Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in peculiar conditions prevailing in the Pradesh. 5. It is further the case of the petitioners that after the amendment was incorporated in the Rules, in order to make themselves eligible for appointment against the post in issue, the petitioners acquired the higher qualification of Bachelor’s Degree in Physical Education. These degrees were acquired by them in the year 2013, i.e. after the amendment was incorporated in the Rules. Their grievance is that the act of the Department in terms whereof they are considering the batch/seniority of the petitioners against the post of Physical Education Teacher for the purpose of batch wise recruitment as from the date when they acquired the essential qualifications in terms of the 2010 Rules instead of the date they acquired essential qualification in terms of the pre- existing Recruitment and Promotion Rules, 1973, is arbitrary and discriminatory. 6. Accordingly, a prayer has been made for issuance of a writ of mandamus, directing the respondents to consider the seniority of the petitioners for appointment against the 6 2026:HHC:21338-DB post of PET on batch wise basis in District Mandi and Kullu from the date they had acquired essential qualifications in terms of the pre existing Recruitment and Promotion Rules, 1973. 7. Learned Counsel for the petitioners argued that the act of the respondents of not construing the batch of the petitioners as from the date when they initially acquired the diploma course and then got themselves enrolled with the Employment Exchange is arbitrary and bad in law. He submitted that as the petitioners were possessing the requisite qualifications in terms of the Recruitment and Promotion Rules, which were in vogue at the time of their enrollment with the employment exchange, subsequent change therein cannot alter their seniority for the purpose of their consideration against batch wise recruitment. He submitted that batch of the petitioners has to be reckoned as from the date they acquired the requisite qualification according to the 1973 Rules and subsequent change cannot be so read as is being construed by the Department, that the seniority of the petitioners is to be treated from the date when 7 2026:HHC:21338-DB they acquired the higher qualification in terms of the 2010 Rules. No other point was urged. 8. On the other hand, learned Additional Advocate General by referring to the reply filed by the State submitted that after the new Recruitment and Promotion Rules for appointment against the post of Physical Education Teacher were brought into force w.e.f. 10.01.2011, none were eligible to be appointed against the post in issue, post said date until the incumbent was possessing the minimum qualification prescribed under these Rules. He submitted that it is the admitted case of the petitioners that none of them were possessing the qualification prescribed in the new rules when they came into force. All of them acquired the minimum qualification only after the Rules came into force and obviously, for the purpose of determining their seniority for batch wise recruitment, their batch has to be construed from the date when they acquired the minimum qualification mentioned in the 2010 Recruitment and Promotion Rules for appointment against the post of PET. He submitted that there is neither any arbitrariness nor any discrimination on the part of the employer because all are being treated with the 8 2026:HHC:21338-DB same yardstick. He submitted that it is not the case of the petitioners that whereas after the 2010 Rules came into force, one set of incumbents were appointed on the basis of the qualification possessed as per old rules and persons like the petitioners, were discriminated. Learned Additional Advocate General also submitted that all eligible candidates have the right to participate in the recruitment process and even in batch wise recruitment process, the State is not denying this right to anyone. However for that the minimum eligibility criteria has to be fulfilled. In the case of batch wise recruitment, the batch has to be construed as from the date when the candidate acquired the qualification, on the strength whereof, now the appointment is being sought. 9. I have heard learned Counsel for the parties and have also carefully gone through the pleadings as well as documents appended with the petition. 10. Article 16 of the Constitution of India mandates equality of opportunity in matters of public employment. This Article provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and there shall be no 9 2026:HHC:21338-DB discrimination on the grounds which are enumerated in the sub-Articles thereof. However, right to employment is not a fundamental right. An eligible candidate has a fundamental right of being considered, provided that there are vacancies and there is a process initiated by the employer to recruit the candidates. 11. The Recruitment and Promotion Rules are framed under Article 309 of the Constitution of India, which Article provides that subject to the provisions of the Constitution, Acts of appropriate Legislature may regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. 12. Proviso to this Article provides that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules, regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision 10 2026:HHC:21338-DB in that behalf is made by or under an Act of the appropriate Legislature under this Article and any rules so made shall have effect subject to the provisions of any such Act. 13. Thus, the Recruitment and Promotion Rules are made in exercise of powers conferred under the proviso to Article 309 of the Constitution. Acquiring a qualification per se has nothing to do with the appointment. 14. Though, in terms of the Recruitment and Promotion Rules, which were in vogue since the year 1973 for appointment to the post of PET, the minimum qualification was matriculation and a Diploma as mentioned therein but this did not preclude the petitioners from acquiring higher qualification, i.e. the qualification of degree etc. in the field of Physical Education. It is not the case of the petitioner that before the 2010 Rules came into force, there was no degree imparted in the field of Physical Education. 15. Acquiring a qualification is not a ticket for employment. Acquiring a qualification does not vest a person with an indefeasible right to be appointed against a post for which the qualification acquired by him may be the minimum qualification. It is settled law that what should be the 11 2026:HHC:21338-DB Recruitment and Promotion Rules to fill up the post is the prerogative of the employer and it is further the prerogative of the employer to amend the rules also. 16. Hon’ble Supreme Court of India in P.U. Joshi and others Versus Accountant General, Ahmedabad and others and connected matter, (2003) 2 Supreme Court Cases 632, in para-10 thereof, has been pleaded to hold as under:- “10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating 12 2026:HHC:21338-DB to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.” 13 2026:HHC:21338-DB 17. Employment can be offered only if there are posts available and candidates, who do participate against the process, are found eligible to be appointed against the post in issue. 18. In the present case, it is the own case of the petitioners that what necessitated the change in the Recruitment and Promotion Rules for appointment against the post of Physical Education Teacher, was the coming into force of the Right of Children to Free and Compulsory Education Act, 2009 and the National Council of Teachers Education (NCTE) Act, 1994. It is also the pleaded case of the petitioners that on the recommendation of the NCTE, in exercise of powers conferred under the proviso to Article 309 of the Constitution of India, the Worthy Governor of the State, in consultation with the Himachal Pradesh Public Service Commission, was pleased to amend and formulate the new Recruitment and Promotion Rules for the post of Physical Education Teacher Class-III (Non Gazetted) 2010, which came into force from the date of publication in the Rajpatra on 10.01.2011. 14 2026:HHC:21338-DB 19. Employment can be offered only if there are posts available and candidates, who do participate against the process, are found eligible to be appointed against the post in issue. 20. The qualification which the petitioners were originally possessing, if in sync with the Recruitment and Promotion Rules in vogue for appointment against the post of PET, was good only till the date the said rules were in vogue. 21. Once new rules were brought into force, the petitioners on the strength of their original qualification were rendered ineligible to be appointed against any subsequent vacancy which the Department intended to fill. It is settled law that it is the Rule in vogue as on the date of issue of process when the vacancy is being filled up which governs the appointment to the post in issue. 22. In this backdrop, if we have a look on the facts of this case, again obviously, after 2010 Rules came into force in the year 2011, the petitioners were rendered ineligible for appointment against the post of PET because they were not possessing the minimum qualification in terms of the 2010 Rules. Under these circumstances, the petitioners rightly 15 2026:HHC:21338-DB acquired the higher qualification and made themselves eligible to be appointed against the post of PET in terms of the minimum qualification prescribed in the 2010 Rules. 23. Obviously, because this act of acquiring higher qualification was achieved by the petitioners only after the 2010 Rules came into force, their batch for being considered against batch wise recruitment for the post in issue is to be construed only from the date when they acquired the higher qualification. The possession of a earlier qualification which was in consonance with the earlier rules, could not have come to the rescue of the petitioners as far as the determination of their seniority on batch wise basis for the purpose of appointment against the post in issue is concerned because obviously, the batch for appointment against the post had to be reckoned from the date when the petitioners gained the minimum qualification mentioned in the relevant Rules for appointment against the post in issue, in the year 2013. 24. 24. In this backdrop, the contention of the petitioners that they are being discriminated by the Department or the act of the Department in erroneously construing their batch 16 2026:HHC:21338-DB for appointment against the post of PET as from the date when they acquired B.P.Ed. qualification, has no merit. 25. As the petitioners are seeking appointment against the post of Physical Education Teachers in terms of the rules, which are presently in vogue and because they obtained the requisite qualification in vogue for appointment against this particular post only after the 2010 Rules came into force in the year 2011, their eligibility has to be seen only from the date when they acquired the qualification, rendering them eligible to be appointed against the post in issue. Accordingly, in light of above discussion, as this Court does not find any merit in the present petition, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) June 03, 2026 Judge (narender)