IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 2306 of 2008 Reserved on: 28.7.2009 Date of decision: 17.08.2009 Amar Nath Sharma … Petitioner Versus State of H.P. & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the Petitioner: Mr. P.P. Chauhan, Advocate. For the respondents: Mr. R.K. Bawa, Advocate General with Mrs. Shubh Mahajan, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General, for respondents No. 1 and 2. Mr. Roop Lal, respondent No. 4 in person. Mr. Ashok Chaudhary, Advocate, for respondents No. 3 and 5. V.K. Ahuja , J.: The petitioner filed an application under Section 19 of the Administrative Tribunal Act, 1985. On abolition of the State Administrative Tribunal, the said Original Application stood transferred to this Court and it was registered as Civil Writ Petition. Briefly stated, the facts of the case are that the petitioner filed the application claiming that the petitioner was working as a Clerk in the office of Advocate General. A seniority list of Senior Assistants was circulated wherein the petitioner was shown at Sr. No. 4. The 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 petitioner alleged that aggrieved with this, he made a representation, which was summarily rejected by respondent No. 2 and a final seniority list was issued vide Annexure P-5. The petitioner again challenged the final seniority list alleging that according to the seniority list of Clerks circulated on 31.3.1984, the petitioner was shown at Sr. No. 1 and there is no reason showing the applicant at Sr. No. 4 since he is the senior most Clerk in the office of the Advocate General, H.P. It was alleged that the representation was rejected by respondent No. 2 and the applicant was the senior most Clerk confirmed on 15.2.1975, whereas the others were confirmed later on. He alleged that other Clerks have been given ad hoc promotions who were junior to the petitioner. He further alleged that the Recruitment and Promotion Rules provides the qualification of graduation but it does not apply to the promotee and it applies to the case of direct recruits. It was also alleged that the Recruitment and Promotion Rules contained in Annexure P-11 have not come into force as the same were not published in the official gazette till date. In view of the above, the petitioner alleged that he was entitled to be promoted from the date his juniors were promoted and he is entitled to be placed at Sr. No. 1 in the seniority list of Senior Assistants and the final seniority list of Clerks accordingly. A notice of the petition was issued to the respondent. It was alleged by respondents No. 1 and 2 that the application filed by the petitioner was highly belated since the petitioner was appointed as a regular Assistant only on 22.1.1993 (though on ad hoc basis with effect from 14.6.1987). It was also pleaded that two petitions filed earlier by the petitioner were either dismissed as withdrawn or finally disposed of. Thus, the cause of action has arisen to 3 the petitioner in the year 1980 and subsequently in the year 1983 and 1987 when other officials were promoted as Senior Assistants over and above the petitioner. It was alleged that the petitioner has not challenged the seniority list issued earlier and as such, he is not entitled to the relief claimed by him. No separate reply was filed by respondents No. 3 and 5 who had adopted the reply filed by respondents No. 1 and 2. I have heard the learned counsel for the parties and have gone through the record of the case. On consideration of the arguments advanced at the time of hearing, it is clear that only point canvassed before this Court by the learned counsel for the petitioner and only point in dispute as also admitted by the learned Advocate General for respondents No. 1 and 2, was that according to the promotion rules for the post of Assistant there was requirement of graduation. According to the learned counsel for the petitioner, admittedly, the petitioner was not a graduate on the date when the promotions were made to the post of Assistant but the Recruitment and Promotion Rules providing for the necessary qualification of graduation were never published in H.P. Rajpatra as required and these cannot be said to be operative as in the case of the petitioner. There is no dispute that the other persons promoted were graduates and there has been no challenge to these rules but the point in dispute is as to the promotion and Recruitment and Promotion Rules for the post of Assistant as to whether they were liable to be published in official Rajpatra and if they have not been published what is its effect. The learned counsel for the petitioner had relied upon the decision in Shri Sita Ram and Ors. Vs. The Speaker, Haryana 4 Vidhan Sabha, Chandigarh and Ors., 1972 S.L.R. 756. The observations made in Paras 9 and 10 are relevant and are being reproduced below:- “A rule is that which is prescribed or laid down as a guide to human conduct or action and it is often made in exercise of a power conferred by an enactment. Promulgation is ordinarily its necessary pre-requisite as without that the society cannot know what that rule is. The underlying object of making rules is to make them known to the class to be affected by them. An order which is to be given the status of a rule must, therefore, be held to come into operation only when it becomes known. In cases where the breach of a rule leads to penal consequences, the importance of publication cannot be gainsaid. In a country like India, governed by the rule of law, where the Constitution guarantees fundamental rights, including equality of opportunity in matters relating to employment or appointment to any office under the State, the necessity for publication of the rules relating to any service cannot be over-emphasised.” The petitioner has relied upon the Notification Annexure P-11 issued by the State Government on 27.11.1973. A perusal of the same shows that the essential educational qualifications for the post of Assistant are graduate. In regard to method of recruitment, it has been mentioned as under:- “Posts in the service shall be filled in either by promotion or by direct recruitment/appointment or by transfer or by deputation from other departments of Government, in the following manner:- (i) Assistant:- By promotion from amongst Stenographers and Clerks (50% each category) having atleast 3 years service on the basis of seniority subject to the rejection of the unfit, failing which by direct recruitment or by 5 promotion, deputation from other Departments of Government, as the appointing authority may decide.“ It is, therefore, clear that the post in service can be filled either by promotion or by direct recruitment. According to this rule, these rules shall come into force from the date of their publication in the official gazette. It is clear that these rules were amended and the educational qualification added was graduate and these rules shall come into force from the date they are to be published in the official gazette. Once these rules are published, an employee who was not possessing the educational qualification of graduate was not entitled to be promoted as an Assistant. The promotion can be made by direct recruitment as well as by promotion from the eligible Clerks. It is, therefore, clear that the requirement of graduation for the post of Assistant will apply only in the case of persons already in employment only from the date these rules were published in the official gazette. The fact that these rules have not been published in the official gazette so far was not disputed by the learned Advocate General appearing for respondents No. 1 and 2. It is not disputed that the State Government is competent to frame rules and prescribe educational qualification for a particular post and to be eligible for promotion, the employee must possess the said educational qualification. The rules have been framed by the State Government but it is also clear that these rules shall come into force from the date of their publication in the official gazette and once these rules have not been published in any official gazette on the date when persons junior to the petitioner were promoted and, therefore, these rules shall not apply in the case of the petitioner. Therefore, the petitioner was entitled to be promoted as an Assistant from the date his 6 juniors were promoted and he is entitled to be placed at the same seniority to which he was entitled as a Clerk. In regard to the plea that the petition is time barred or that the petitioner had earlier approached the Court, which were either dismissed or withdrawn, no certified copy of the judgment has been placed on record by the respondents. The petitioner had alleged that he made a representation to the Secretary (Home) on 29.7.1994 vide Annexure P-1, which has not been decided so far and, therefore, he filed the Original Application before the learned Tribunal in September, 1994 and his representation was not rejected and he filed the present application within six weeks of the representation made. The allegations made in Para-10 in this regard were denied by the respondents No. 1 & 2 for want of knowledge and they never pleaded that no such representation was filed by the petitioner. Therefore, the writ petition can be said to be well in time. It follows from the above discussion that the petitioner shall be deemed to have been promoted from the date when his juniors were promoted and he shall be entitled to consequential benefits including seniority from the said date. The writ petition filed by the petitioner is allowed accordingly with no order as to costs. ( V.K. Ahuja ), August 17, 2009 Judge (BSS) 7