IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 3068 of 2008. Decided on: 20th October, 2010. Kamla Sharma. .….. Petitioner. Versus State of H.P. & others. …. …Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General, with Mr. Ankush Dass Sood, Addl. Advocate General and Mr. J.K. Verma, Dy. Advocate General, for respondents No.1 and 2. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. (Oral) The writ petition is filed with the following prayer: (i) That the respondent State may be directed to consider the claim of applicant for promotion to the post of Director of Primary Education w.e.f. May 1995 in accordance with Recruitment and Promotion Rules, or from any other date which this Hon’ble Tribunal may deem fit in the circumstances of the case with all consequential benefits.” 2. The petitioner was promoted as Deputy Director w.e.f. 1.5.1988, notionally and on regular basis, as can be seen from Annexure A-1. Thereafter, she was promoted as Joint Director on 6.3.1995. The post of Director of Primary 2 Education fell vacant on 1.2.1993. The method of appointment to the post of Director is as follows: “By promotion from amongst Joint Director of Education (Schools) having at least two years regular or ad hoc (rendered upto 31.12.1983) service on regular combined with ad hoc (rendered upto 31.12.1983) service as such, failing which from amongst Joint Director of Education (Schools) and Dy. Director Education having at least 7 years regular or ad hoc (rendered upto 31.12.1983) service as Joint Director and Deputy Director combined or as Dy. Director.” 3. Admittedly, as on the date of occurrence of the vacancy, the petitioner was not qualified. In the reply filed by the first respondent, in para 5, it is stated as follows: “The post of Director of Primary Education had to be assigned to IAS Officers because there was none in the Department who qualified the provisions laid down in Recruitment & Promotion Rules and every time whenever any officer of School & Inspection cadre was promoted, the Government had to promote them as such by giving relaxation in the Recruitment and Promotion Rules and as per her submissions made by the applicant in this Application, she too is not eligible for promotion to the post of Director of Primary Education keeping in view the fact that neither she has 7 years regular service as Dy. Director of Education nor she has 2 years service as Joint Director of Education and the representation submitted by her to the Government is without any substance and logic.” 4. In case, as on the date of occurrence of vacancy, the petitioner was not qualified, she is not entitled to 3 stake a claim. She is entitled to maintain a claim if after she became eligible for being considered, a person from the IAS cadre appointed in the post of Director has been replaced by another IAS Officer without considering her claim since admittedly according to the Government, she was not considered as she was not qualified. 5. It will be open to the petitioner to submit a fresh representation in the light of what is held above, in case she is otherwise eligible in terms of this judgment, within a period of one month from today, in which case the matter will be considered by the first respondent within another three months. In case the petitioner is found entitled to any benefit, the consequential benefits need be conferred on her only on notional basis meaning thereby that the impact of such conferment will be reflected only in the pensionary benefits since the petitioner has not admittedly worked against such post. 6. The writ petition is disposed of, so also the pending applications, if any. Dasti copy. (Justice Kurian Joseph), Chief Justice 20th October, 2010 (Justice Kuldip Singh), (tr) Judge. 4