IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3904 of 2010. Judgment Reserved on 18.8.2011. Date of decision: 24.08.2011 ___________________________________________________ Madan Lal Joshi …. Petitioner. Versus The State of HP & Ors. ….. Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes. For the petitioner: Mr. Ramesh Kaundal, Advocate. For the respondents: Mr. Vivek Singh Thakur, Addl. AG with Mr. Rajesh Mandhotra, Dy. AG for respondents No. 1 & 2. Mr. D.K. Khanna, Advocate for respondent No.3. ______________________________________________________ Deepak Gupta, J. 1. The short question which arises for decision in this case is with regard to the interpretation of Rule 11 of the Recruitment and Promotion Rules. Relevant portion of the Rule reads as follows:- ”(i) In all cases where a junior person becomes eligible for consideration by virtue of his total length of service (including the service rendered on adhoc basis, followed by regular service/appointment) in the feeder post in view of the provision referred to above, all person senior to him in the respective category/post/cadre shall be deemed to be eligible for consideration and placed above the junior person in the field of consideration; Provided further that all incumbents to be considered for promotion shall possess the minimum qualifying service of at least 03 years or that prescribed in the R&P Rules for the post, whichever is less; Provided further that where a person becomes ineligible to be considered for promotion on account of the requirements of the preceding proviso, the person(s) junior to him shall also be deemed to be ineligible for consideration for such promotion.” 2 2. The undisputed facts are that the petitioner was junior to one Mr. Roop Ram in the feeder category. Both the petitioner and Roop Ram were eligible for being promoted as District Inspectors/Food & Supplies Officers. Both had been promoted District Inspectors by a common order dated 8th May, 2007. The petitioner joined but his senior Mr. Roop Ram did not join for about a month and a half. The case of the petitioner is that Mr. Roop Ram did not want to join at the place where he was posted. Be that as it may, on the date when the post was to be taken up for consideration Mr. Roop Ram had not completed three years of service in the feeder category. On this ground, the Departmental Promotion Committee (DPC) which met, came to the conclusion that the petitioner was not eligible, since his immediate senior had not completed three years of service in the feeder category. This decision of the DPC is under challenge in this petition. 3. A bare perusal of the relevant portion of the Rules clearly shows that ad hoc service rendered in the feeder post is to be counted. The Rules also envisage that if a junior person becomes eligible by virtue of his total service in the feeder post, then all persons senior to him shall be deemed to be eligible. However, the first proviso clearly lays down that all incumbents to be considered for promotion should possess the minimum qualifying service of at least three years or that prescribed in the R & P Rules for 3 the post whichever is less. The R & P Rules also prescribed three year’s service in the feeder category. The second proviso quoted hereinabove is creating the problem. The second proviso in no uncertain terms lays down that where a senior becomes ineligible to be considered for promotion on account of the fact that he does not possess minimum qualifying service of three years, then the person junior to him shall also be deemed to be ineligible for consideration for such promotion. 4. It has been contended by Mr. Kaundal that in the present case great hardship has been caused since the petitioner and Mr. Roop Ram were promoted on the same date, but Mr. Roop Ram did not care to join the promotional post and if he had joined, then both of them would have been eligible. He further contends that the second proviso has to be read in the context of the letters and instructions issued by the State wherein ad hoc service was to be taken into consideration for counting the length of service in the feeder category. According to Mr. Kaundal, the second proviso would not apply in cases where the junior is not taking any benefit of ad hoc service but has completed three years regular service. In such eventuality, according to Mr. Kaundal, the second proviso would not apply. 5. In my opinion, both the contentions are without merit. When the Rules are clear, no reliance can be placed on instructions. The Rules in question were framed in the 4 year 2009 and the instructions issued almost three decades earlier cannot be used to interpret the Rules. The rules are very clear that if the senior becomes ineligible on account of the fact that he does not possess the minimum qualifying service of three years or that prescribed under the Rules whichever is less, then the person junior to him shall be deemed to be ineligible. There is no ambiguity in the Rule and the DPC has correctly interpreted the Rules. It may be true that the petitioner had suffered for the fault of his senior, but the fact remains that if the senior had also completed three years of service, then the senior would have also been eligible for promotion. 6. No error can be found in the approach of the DPC and therefore, I find no merit in the petition which is accordingly rejected. No costs. (Deepak Gupta) Judge August 24, 2011. (Krn Guleria)