IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 7621/2008 Decided on:4.5.2009 Jagdish and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners : Mr. P.P. Chauhan, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General for respondent No.1. Mr. Dilip Sharma, Advocate for respondents No. 2 to 23. Rajiv Sharma, J. The petitioners have assailed the promotions of respondents No.2 to 23 to the post of Junior Assistant dated 9.3.2001. Respondents No.2 to 23 were promoted to the post of Clerk against 10% quota, The promotion to the post of Junior Assistant is regulated by the Recruitment and Promotion Rules i.e. Annexure A-7. The precise case of the petitioners is that respondents No.2 to 23 could not be considered for promotion to the post of Junior Assistant on 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 the basis of memorandum dated 30.8.2000. The case set up by the respondents is that appointment of respondents No.2 to 23 was in accordance with law and their further promotion was also in conformity with the Recruitment and Promotion Rules. Mr. P.P. Chauhan, Advocate has strenuously argued on the basis of office memorandum dated 30.8.2000 that respondents No.2 to 23 were required to possess qualification of matriculation with second division or 10+2 as prescribed for direct recruitment. His further contention is that it was necessary for respondent No.1 to incorporate the amendment as suggested vide memo dated 30.8.2000 and till the same was carried out, the promotion to the post of Junior Assistant was to be regulated as per this memorandum. Mr. R.K. Sharma, the learned Senior Additional Advocate General and Mr. Dilip Sharma, Advocate have strenuously argued that respondents No.2 to 23 were recruited strictly as per the existing Recruitment and Promotion Rules and memorandum dated 30.8.2000 cannot be invoked by the petitioners to challenge the promotions to respondents No.2 to 23. Their further case is that no amendment till date has been carried out on the basis of memorandum dated 30.8.2000. Mr. Dilip Sharma, Advocate has also separately argued that on the basis of notifications dated 31.5.2001 and 24.8.2001, respondents No. 2 to 23 were designated by way of placement as Junior Assistants in the pay scale of Rs. 4400-7000 plus Rs. 80/- as secretariat allowance vide office order dated 23.11.2001. I have heard the learned counsel for the parties and perused the record carefully. It appears from the seniority list of clerks as it stood on 31.3.1997 that respondents No. 2 to 23 were promoted before the petitioners were 3 appointed on 6.2.1996 by way of direct recruitment. In fact, the Recruitment and Promotion Rules for the post of Clerks i.e. Annexure A-6 were notified on 13.2.1996. A bare perusal of rule 11 reveals that in case of recruitment by promotion from amongst the Peons, who have passed Matric or Hindi (Rattan) with Matric (English) as one of the subject and also possess five years regular service or regular combined with continuous ad hoc were eligible. A memorandum has been issued by the State on 30.8.2000 making following recommendations/changes in column 11 of the Recruitment and Promotion Rules: “Provided that those clerks who have been promoted from amongst the Class-IV employees or appointed on compassionate grounds having the educational qualification Matric Pass or Matric (in English only) and Hindi Rattan pass at the time of such promotion/appointment shall not be promoted to the post of ‘Junior Assistant’ unless they possess the essential qualification viz. Matriculation Second Division or 10+2 pass as prescribed for direct recruitment.” The learned Senior Additional Advocate General submits that no amendment has been carried out in rule 11 as suggested in office memorandum dated 30.8.2000. The promotion to the post of Junior Assistant is regulated by the Recruitment and Promotion Rules i.e. Annexure A-7. A bare perusal of Rule 11 reveals that the promotion to the post of Junior Assistant is to be effected from amongst the Clerks who possess five years regular service or regular combined with continuous ad hoc rendered up to 31.3.1991. The post of Junior Assistant is to be filled up 100% by promotion. Respondents No.2 to 23 were considered for promotion to the post of Junior Assistant as per these rules and were promoted vide office order dated 9.3.2001. Respondents No.2 to 23 were promoted as Clerks before 4 the petitioners were appointed on 6.2.1996. As noticed above, the Recruitment and Promotion Rules for the post of Clerks were published on 13.2.1996. The right accrued to respondents No.2 to 23 before the publication of the rules on 13.2.1996 could not be impaired on the basis of memorandum issued on 30.8.2000. Respondents No.2 to 23 have been promoted on the basis of rules, which were applicable at the relevant time as Clerks. There is no force in the submission of Mr. P.P. Chauhan, Advocate that till the Recruitment and Promotions Rules were not amended, the promotions were to be effected on the basis of memorandum dated 30.8.2000. It is settled law by now that instructions can only supplement but cannot substitute the Recruitment and Promotion Rules. The learned Senior Additional Advocate General has submitted that till date rule 11 has not been amended. The essential qualification prescribed in the rules cannot be permitted to be altered on the basis of memorandum dated 30.8.2000. Even if it is assumed for the sake of arguments that the rules were amended on the basis of office memorandum dated 30.8.2000, it could not have been applied retrospectively and could not impair/destroy the rights of respondents No.2 to 23 accrued to them at the time of promotion from Class IV to Class –III. Their promotions to the post of Junior Assistant have been effected strictly as per Annexure A-7 dated 30.9.1999. The State Government vide notification dated 24.8.2001 had decided to de-notify the Recruitment and Promotion Rules of Junior Assistant (Class-III Non-Gazetted) in the Department of Secretariat issued on 30.9.1999. Consequently, vide order dated 24.8.2001 after the amendment made in the Himachal Pradesh Civil Services (Revised Pay) (Third Amendment), 2001 vide notification dated 31.5.2001 and clarification issued on 23.11.2001, respondents No.2 to 23 were 5 designated as Junior Assistant by placement in the pay scale of Rs. 4400- 7000 plus Rs. 80/- as secretariat allowance from the date shown against each individual. In view of the aforesaid reasoning, there is no merit in this petition and the same is dismissed. There will, however, be no order as to costs. 4.5. 2009 (Rajiv Sharma ), J. *awasthi*