IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 8629 of 2008 Date of Decision : March 9, 2011 Smt. Saroj Sharma Petitioner Versus State of H.P. and another Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Ms. Sunita Sharma, Advocate, for the petitioner. For the respondents : Mr. Ram Murti Bisht, Dy. Advocate General with Mr. Vinod Thakur, Dy. A.G. for the respondents-state. Sanjay Karol, J. (Oral) The petitioner has prayed for the following reliefs:- (i) That the respondents may be directed to implement Annexure A-2, dated 28.6.2002: (ii) That the condition requiring the qualification of matriculation with second division or 10+2 examination or its equivalent from recognised Board, vide Annexure A-2, dated 28.6.2002, may be quashed and set aside being arbitrary after applying the principle of severability: (iii) Any other relief as may be deemed just and proper keeping in view the facts and circumstances of the case may also be granted in favour of the applicant.” Whether reports of Local Papers may be allowed to see the judgment? 2 2. Annexure A-2 is office order dated 28.6.2002 whereby petitioner was promoted as a Senior Assistant. However, the respondents imposed the following conditions:- “… It may also be ensured that the employee so promoted has qualified the prescribed Hindi/English typing test as required at the time of initial appointment as Clerk. Apart from this it may also please be ensured that the officials appearing from Sr. No. 44 to 108 and have been promoted as Senior Assistant have passed either the matriculation examination in 2nd Division Or 10+2 examination Or its equivalent from a recognised Board because these official have been appointed as Clerk after 23.7.90. If any case who does not fulfil the said conditions be also brought to the notice of this Directorate and he may not be relieved on promotion till further orders.” 3. It is not in dispute that petitioner has qualified the prescribed Hindi/English typing test. However, with regard to the educational qualification it is evident from the R&P Rules (1998) that no such condition exists there. According to the respondents such condition was imposed only by way of instructions dated 30.1.2002. 4. The Division Bench of this Court in CWP(T) No. 8902 of 2008, titled as Nand Lal and others versus State of H.P. and others, decided on 27.5.2010, copy of which is taken on record, while dealing with similar circumstances has held as under:- “2. The simple contention of the petitioners is that vacancies which existed prior to the amendment of the Rules should be filled up in accordance with the Rules prevalent at the relevant time. Only those vacancies which arose after the amendment alone can be filled up in terms of the amended Rules. That is a well settled position in law 3 and the latest decision of the Apex Court in this regard is A.Manoharan and others vs. Union of India and others, reported in (2008) 3 SCC 641. 3. Mr. R. K. Sharma, leaned Senior Addl. Advocate General submits that State may be given liberty to review any promotion granted to any ineligible or unqualified person. If there is such an instance it is open to the competent authority to issue notice to the incumbents, afford an opportunity for hearing and take proper action in accordance with law. But vacancies which arose prior to the amendment of the Rules should be filled up only in accordance with the unamended Rules. The needful in the light of the declaration of law as above shall be done within two months from the date of production of the copy of this judgment alongwith the copy of the writ petition. Petition stands disposed of so also the pending application.” 5. There is nothing on record to show that the Rules were suitably amended to incorporate the conditions contained in circular dated 30.1.2002. Consequently the condition with regard to the fulfillment of educational qualification, other than the one which existed in the unamended Rules could not have been imposed by the respondents. Consequently the same is quashed. In view of the aforesaid discussions the petition is allowed. Annexure A-2 shall be implemented accordingly. (Sanjay Karol), Judge. March 9, 2011 (PK)