( 2026:HHC:10817 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWPOA No.4273 of 2019 Reserved on: 25.03.2026 Decided on: 08.04.2026 Kamlesh Sharma .......Petitioner Versus State of H.P and others ...Respondents Coram Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?1 For the petitioner: Mr.Karan Singh Parmar, Advocate. For the respondents: Mr.Rupinder Singh, Additional Advocate General for respondents No.1 and 2. Mr.P.P. Chauhan, Advocate for respondent No.3. Jiya Lal Bhardwaj, Judge By way of the present petition, the petitioner has laid challenge to an order dated 13.07.2011, passed by respondent No.1, whereby the representation made by her to offer her appointment as Clerk on the analogy of Ms.Sumedha Awasthi (respondent No.3), has been rejected. 2. Shorn of unnecessary details, the key facts of the case are that that the petitioner, who is a matriculate, got herself enrolled in the employment office Shimla in the year 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. ( 2026:HHC:10817 ) 2 1984. Her name was sponsored by the employment office during the year 1991 and in pursuance of the said sponsorship, she was called for interview by respondent No.2 on 23.04.1991 for the post of Clerk to be filled up on daily wage basis. The petitioner was offered appointment for a period of 89 days, as per office order dated 30.04.1991, she discharged her duties w.e.f. 30.04.1991 to 29.02.1992. However, thereafter, her services were disengaged. 3. The petitioner feeling aggrieved by her disengagement had preferred the Original Application along- with respondent No.3, before the erstwhile Himachal Pradesh State Administrative Tribunal, bearing number No. 190/92., titled, Miss. Sumedha Awasthi versus State of Himachal Pradesh and another, which was disposed of on 02.04.1993, directing the respondents that as and when daily waged Clerk is recruited, the petitioners shall be considered on priority basis in view of their past service. 4. The petitioner along-with respondent No.3submitted a representation on 07.04.1996 (Annexure P-3) before respondent No.1. The request made by the petitioner was not acceded to, however, respondent No.3 was ( 2026:HHC:10817 ) 3 offered appointment as Clerk, vide office order dated 2/3.07.1997 (Annexure P-5). 5. The petitioner thereafter submitted a representation on 22.10.1997 (Annexure P-4) to respondent No.1 highlighting therein that respondent No.3, who was also appointed with her, has been offered the appointment on the post of Clerk, on regular basis, but she has been deprived of the same. The petitioner had specifically mentioned that 7 vacancies were available in the Department and the petitioner and respondent No.3, had written together to the Department. However, when no action was taken by respondent No.1, the petitioner had approached the erstwhile Tribunal by preferring an Original Application bearing OA No.380/1998. The said O.A. was dismissed on 25.04.2003, against which, the petitioner had preferred a review petition, which was also allowed by this Court on 10.11.2010 and the Original Application was revived and registered as CWP(T) No.43 of 2010. The said petition was also disposed of on 10.11.2010 (Annexure P-6) along-with review petition and after considering the entire gamut, it was held that the petitioner and respondent No.3 were similar situate persons and ought to be treated similarly and a direction has been issued to ( 2026:HHC:10817 ) 4 respondent No.1 to consider and take final decision in the matter specifically observing at par with respondent No.3- Ms.Sumedha Awasthi, after giving an opportunity of being heard to the petitioner. 6. The petitioner had made representation which came to be rejected on 13.07.2011 (Annexure P-7) holding that the petitioner and respondent No.3 had worked in the Department as daily wages Clerk for short duration between 1991 to 1994. Respondent No.3-Ms.Sumedha Awasthi was offered appointment against the regular post of Clerk in the Department, vide office order dated 02.07.1997, subject to fulfillment of terms and conditions of employment viz. educational qualification, age etc. This was done in pursuance of a specific relaxation granted by the Government of Himachal Pradesh in the applicable Recruitment and Promotion Rules for appointment of Clerks under the Rules, by which the appointment of Clerks was done through the H.P. Public Service Commission. In the case of respondent No.3, the Department had offered her appointment on regular basis after a specific relaxation in the applicable Recruitment and Promotion Rules was given by the competent authority and such relaxation was applicable to a particular case in ( 2026:HHC:10817 ) 5 which it was given and it cannot be extrapolated and made application to all cases of a similar nature. Further, such relaxation in the Recruitment and Promotion Rules is not within the power of respondent No.1 and thus the petitioner cannot be held entitled for appointment as Clerk against a regular post in the department and rejected her representation. 7. The petitioner by way of present petition has laid challenge to the said order on the ground that once this Court had given the direction to consider the case of the petitioner for appointment as Clerk at par with the appointment of respondent No.3, the rejection of her claim is illegal, unjust and against Article 14 of the Constitution of India. The petitioner had better claim for appointment on compassionate ground since her husband had met with an accident in October, 1996 and remained admitted for six months and is bed ridden. Once the relaxation was given in the case of respondent No.3, the petitioner was also entitled to the same relaxation and by not giving relaxation to the petitioner, when she is similarly situated, there occur violation of Article 14 of the Constitution of India and thus, she prayed for quashing the order of rejection of her representation and sought ( 2026:HHC:10817 ) 6 direction to the respondents to offer her appointment as Clerk. 8. The respondents-State filed reply to the petition and took the plea that the petitioner had made a representation after a gap of four months and further she was offered the job along-with others to cope with the temporary work of different elections. The representation of the petitioner was considered and rejected in view of the provisions of Recruitment and Promotion Rules, according to which, recruitment to the post of Clerk is done by the HPPSC/HP Subordinate Service Selection Board, Hamirpur. It is not within the purview of the Department to offer the employment to the petitioner on the post of Clerk. So far as appointment of respondent No.3 is concerned, it was made in relaxation of the Recruitment and Promotion Rules. 9. I have heard the learned counsel for the parties and also perused the record carefully. 10. It is not in dispute that respondent No.3 was also working on daily wage basis as Clerk with the respondents- State. It is not even the case of the respondents that when the petitioner was offered the appointment on daily wage basis as clerk, she was not possessing the requisite ( 2026:HHC:10817 ) 7 qualification to hold the post and further her name was not sponsored. It is also not in dispute that the judgment dated 10.11.2010, passed by this Court (Annexure P-6) holding that both the petitioner and respondent were similarly situate persons ought to have been treated similarly and this Court had directed the respondents to decide the representation and take decision at par with respondent No.3. 11. It is settled law that the Court cannot give directions to offer the appointment to a person, but when the petitioner and respondent No.3 had preferred the Original Application before the learned Tribunal, which had been disposed of on 02.04.1993, with a direction to the respondents that as and when daily waged Clerk is recruited, the petitioners shall be considered on priority basis in view of their past service, the respondents could not have offered the appointment to respondent No.3 alone that too after relaxing the Recruitment and promotion Rules. No doubt the State Government have enough powers to relax the Recruitment and Promotion Rules, but the same can be relaxed to a Class of persons and not to a individual. 12. This Court had earlier given specific directions to the petitioner to make a representation, which shall be ( 2026:HHC:10817 ) 8 considered by the respondents by taking a final decision in the matter at par with the case of respondent No.3. Thus, the plea taken by the respondents while rejecting the claim of the petitioner that there was a specific relaxation in the case of respondent No.3, is not tenable in law and does not stand in the scrutiny of this Court. Once respondent No.3 was offered the appointment while giving specific relaxation, the similar treatment ought to have also been extended/given to the petitioner, especially, when she had immediately submitted the representation to the respondents-State and when no action was taken, she had approached the Tribunal by way of filing the original application in the year 1998 which is evident from a perusal of the judgment dated 10.11.2010, passed by this Court. 13. No doubt, a person cannot claim negative parity, but at the same time, the Court cannot lose sight of the fact that both the petitioner and respondent No.3 had initially approached the competent Court of law/Tribunal by way of joint original application, in which, the respondents are directed that as and when daily waged Clerk is recruited, the petitioner and respondent No.3 shall be considered on priority basis in view of their past service. Therefore, the respondents ( 2026:HHC:10817 ) 9 could not have considered only the claim of respondent No.3 to offer her appointment after relaxing the Rules. This action on the part of the respondents is violative of Articles 14 and 16 of the Constitution of India. 14. This Court had passed an order on 10.09.2025, observing that the respondents have provided no justifiable and plausible reason for not considering the case of the petitioner for appointment, in terms of order dated 02.04.1993 passed by the learned Tribunal in O.A. No.190 of 1992 and thereafter by this Court on 10.11.2010 in CWP(T) No.43 of 2010. However, keeping in view the pendency of the case, the petitioner was directed to file her affidavit disclosing whether she had remained in gainful employment, more particularly, after 31.01.1994 and if so, the details of such employment be provided. 15. The petitioner in compliance with the said directions had filed supplementary affidavit stating therein that she had remained unemployed after 31.01.1994 and was not offered employment by the State Election Department and her age is 59 years. 16. The respondents-State had also filed supplementary affidavit in compliance to the directions given ( 2026:HHC:10817 ) 10 by this Court on 25.11.2025, disclosing the prevalent Recruitment and Promotion Rules for the post of Clerk as on 2/3.07.1997, when respondent No.3 was offered the appointment as Clerk and disclosing the agenda for special relaxation and decision granting relaxation, whether respondent No.3 was appointed as Clerk through H.P. Public Service Commission or any other recruiting agency and the factum of petitioner being similar or dissimilar with respondent No.3-Ms.Sumedha Awasthi. 17. In sequel to the said directions, supplementary affidavits have been filed by respondents No.1 and 2, whereby it has also been disclosed that agenda was submitted only regarding appointment of respondent No.3, in relaxation of Recruitment and Promotion Rules and the said relaxation was granted as one-time measure. Further, respondent No.3 was not appointed through the Himachal Pradesh Public Service Commission and the same cannot be treated as a precedent or parity in the case of the petitioner. It was further submitted that appointment made by special relaxation or Cabinet decision constitutes a separate class and no claim of equality or parity can be founded thereupon. ( 2026:HHC:10817 ) 11 18. No doubt, this Court cannot question the decision of the Cabinet, but the process adopted is totally unfair. Once the petitioner was also similarly situated as that of respondent No.3, the process initiated to grant relaxation to only respondent No.3 is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. It is settled law that no appointments can be made de-hors the rules, but relaxation of Rules in case of one person is definitely violative of Article 14 of the Constitution of India. Both the petitioner and respondent No.3 had approached the Tribunal by joint application and once the Tribunal had given direction to consider their cases on priority basis as and when daily waged Clerks are recruited, the respondents-State could not have relaxed the Rules in the case of respondent No.3 only. As already observed above, this Court while disposing the writ petition on 10.11.2010 had specifically observed after perusing the record that both the petitioner and respondent No.3 were similarly situate persons and ought to have been treated similarly. Thus, respondent No.1 while rejecting the claim of the petitioner could not have taken different view and reject her claim for appointment to the post of Clerk. ( 2026:HHC:10817 ) 12 19. The petitioner had approached the Tribunal in the year 1998 when her representation was not considered to offer her appointment on the analogy of respondent No.3, who was appointed vide office order dated 2/3.07.2007. No doubt, the petitioner has filed an affidavit to the effect that she was not gainfully employed, but at the same time, since she has not worked for the period and has now attained the age of retirement, this Court, with a view to provide solace and advance substantial justice, is molding the relief, thereby directing the respondents to count the entire period of service w.e.f. 03.07.1997, when respondent No.3 was appointed as Clerk with all consequential basis, on notional basis only for the purpose of pensionary benefits. The impugned order while rejecting the claim of the petitioner is not sustainable in law and as such is hereby quashed and set aside. 20. Consequently, the present petition is allowed and the impugned order dated 13.07.2011, passed by respondent No.1 is quashed and set aside and the respondent/competent authority is directed to offer appointment to the petitioner as Clerk w.e.f. 03.07.1997, with all consequential benefits. However, it is made clear that the benefits shall be given on notional basis till the retirement of the petitioner and on ( 2026:HHC:10817 ) 13 actual basis from the date of retirement, such as pension. The arrears of pension shall be paid to the petitioner from due date of her retirement and in case the arrears are not paid within three months from today, it shall carry interest @ 6 % per annum from due date till its payment. However, there shall be no orders to costs. Pending applications, if any, also stand disposed of. ( Jiya Lal Bhardwaj ) 8th April, 2026 Judge (naveen)