The passing of the departmental examination is an essential requirement for promotion, and the relaxation granted by the State Government has prospective effect.

Lokeshwar Singh Panta, J.

1. This writ petition under Articles 226/227 of the Constitution of India has been preferred against the order dated 31.8.2000 of the Himachal Pradesh Administrative Tribunal dismissing the Original Application No. 89/87 of the Petitioner for promotion to the post of H.P.H.S. Grade-I from the post of H.P.H.S. Grade-II in the State Health Services.

2. The Petitioner's case is that he was appointed as Medical Officer/ General Duty Officer Grade-II (GDO-II) on ad hoc basis in the Himachal Health Services and he joined his duties as such on 12.8.1978. In May, 1982 the services of the Petitioner were regularized by the State Government after he successfully qualified the examination conducted by the Himachal Pradesh Public Service Commission.

3. The State Government framed Rules known as Himachal Pradesh Departmental Examinations Rules, 1976 (hereinafter referred to as "Examinations Rules, 1976") under Article 309 of the Constitution of India. Rule 21 relevant for the purpose of deciding the controversy reads as under:

21. Failure to pass the Departmental Examination. If a member of the service fails to pass the departmental examination within his probation period or within 2 years of the notification of these rules, whichever is later, he shall not be eligible to (i) cross the efficiency bar next due;

(ii) Confirmation in the service; and (iii) Promotion to the next higher post:

Provided that if a member of the service becomes otherwise eligible for promotion, within the period mentioned above, he shall be considered for promotion and if otherwise found fit shall be provisionally promoted subject to his passing the departmental examination. He may be reverted if he fails to pass the same:

Provided further that if there are specific rules governing the conditions of service of a category or a class of officers, the provisions contained in such service rules relating to the effect of failure to pass the departmental examination shall prevail.

4. According to the Petitioner, he applied for permission for taking up the departmental examinations which was allowed by the department and accordingly he appeared in the examination in April, 1982 conducted by the Himachal Pradesh Board of Departmental Examination. The Petitioner was declared as qualified in all the papers prescribed for his category and his result was declared which was conveyed to the Director, Health and Family Welfare Department, Himachal Pradesh by the Secretary, Himachal Pradesh Board of Departmental Examination, a copy thereof was forwarded to the Petitioner vide communication dated August 29,1983 placed on record as Annexure P-l.

5. The Government of Himachal Pradesh framed Rules for the Recruitment and Conditions of service of persons appointed to the Himachal Pradesh Health Services known as Himachal Pradesh Health Services Rules, 1974 (for short "Services Rules, 1974"). Rule 9(2) of the Rules reads as under:

9(2): Himachal Pradesh Health Services Grade-l:

Vacancies of H.P.H.S. Grade-I shall be filled in on the recommendation of a Departmental Promotion Committee, by promotion, on the basis of merit with due regard to seniority, of persons, holding posts in the H.P.H.S. Grade-II who have rendered not less than five years service in that grade:

Provided that if the Government is satisfied that suitable officers are not available in the H.P.H.S. Grade-II for promotion to the post in the H.P.H.S. G-ade-I, such post may be filled in by direct recruitment in the manner specified in the second schedule.

Rule 11 of the said Rules deals with probation, which reads as under:

11. Probation. (a) Persons appointed to the service by direct recruitment or by promotion shall be on probation for a period of two years.

(b) The Government may extend the period of probation specified in Clause(a).

(c) If on the expiration of the period of probation referred to in Clause (a) or any extension thereof under Clause (b), as the case may be, the Government is of the opini