IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) 11376 of 2008. Date of decision: 21.3.2011 Ram Saran … Petitioner. Versus State of HP& Others. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Ashwani Kumar Gupta, Advocate. For the respondents : Mr. Vivek Singh Thakur, Addl. AG with Mr. Rajesh Mandhotra, Dy. AG. Deepak Gupta, J. (oral) 1. The petitioner by means of this petition has prayed for the grant of following amongst other reliefs:- “That the respondents may be ordered to promote the applicant as Dy. Superintendent of Police with effect from 6.10.2001 with all the benefits incidental thereof such as full back salary and seniority and pay fixation etc. and on the basis of this the enhancement in the pension be also granted in favour of the applicant.” 2. The undisputed facts are that the petitioner joined the Himachal Pradesh Police as Constable and over period of time was promoted as Head Constable, ASI and finally as Inspector w.e.f. 1st August, 1996. The next higher post in the hierarchy was Dy. Superintendent of Police (Dy.S.P.). 3. As per the pleadings of the parties, the rules were amended in the year 1994 and the minimum educational qualification for the post of Dy.S.P. was raised to graduation. Admittedly the petitioner is not a graduate. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. : 2 : 4. The respondents in the reply has also admitted that in the year 1996 one time relaxation in educational qualification was granted. Persons who were not graduates were promoted as Dy.S.P. in the year 2001. 5. According to the petitioner his colleagues, some of whom were junior to him were promoted as Dy.S.P. on 6th October, 2001 and he was not considered, since he was not a graduate. 6. The petitioner alleges that in the year 1996 one time relaxation was given. In the meantime, the petitioner retired as Inspector on 28.2.2003. Thereafter the State of HP issued another order dated 18th June, 2004 and again relaxed the rules and promoted Inspectors who were not graduates to the post of Dy.S.P. The case of the petitioner is that he has been discriminated against inasmuch as that both prior to his retirement and after his retirement, persons who were Inspectors and were not graduates, were promoted, but only in his case the essential educational qualification came in the way of promotion. 7. The reply filed by the respondent is cryptic, virtually admitting all the allegations made in the petition and as per the respondents relaxation was given both in the year 1996 and in the year 2004, but the case of the petitioner was not covered since he retired on 28.2.2003. Once persons senior to and junior to the petitioner have been promoted after giving relaxation as far as educational qualification is concerned, the State should have given some reasons as to why same and similar benefit was not extended : 3 : to the petitioner also. The State in its reply has not mentioned a single fact which shows that the case of the petitioner was different in any way. Many persons were promoted in the year 1996 and in the year 2004 after giving relaxation. No other circumstance has been pointed out as to why the relaxation was only given in the years 1996 and 2004 and not in the year 2001. 8. True it is, that the power of relaxation lies with the State and the State cannot normally be compelled to invoke its power of relaxation. However, when the State uses its powers and relax the rules on more than one occasion, it must justify its act as to what forced it to exercise its power to relax on certain occasions and why this power was not exercised on other occasions. Since, the State has not filed any reply in this regard, the arbitrariness is writ large. Therefore, the petition is allowed and the respondents are directed to consider the case of the petitioner for promotion to the post of Dy.S.P from the date when his junior was promoted by relaxing the rules. Needful be done latest by 31st August, 2011. In case the petitioner is found suitable for promotion, he shall be entitled for all monetary benefits which shall be released on or before 31.8.2011, failing which the State is liable to pay interest @ 9 % per annum. No costs. ( Deepak Gupta ) Judge. 21st March, 2011. (Krn guleria)