Point of law: Administrative instructions - Though there is no specific mention with regard to applicability of roster as prescribed in Chapter XIII of Handbook on Personnel Matters in the Rules 2006 occupying the field, but otherwise also petitioner on the strength of administrative instructions, if issued under Chapter XIII of Handbook on Personnel Matters cannot be permitted to claim that action of the respondents is illegal.

ORDER :

2. Being aggrieved and dissatisfied with the decision taken by respondents, as contained in annexure A-12, whereby special secretary health to the Government of Himachal Pradesh approved the proposal to fill up one post of Assistant Professor (Dentistry) by way of direct recruitment, petitioner approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 280 of 2019, which now stands transferred to this Court after abolishment of erstwhile Himachal Pradesh Administrative Tribunal and stands registered CWPOA No., praying therein for following main reliefs:

“i. That impugned decision taken by the respondents as contained in Annexure A-12, whereby the approval has been granted to fill up the post by way of direct recruitment on 20.12.2028 may kindly be quashed and set aside.

ii. That directions may very kindly be given to the respondents to fill up the post of Assistant Professor (Public Health Dentistry) by way of promotion from amongst the eligible candidates, by further granting the seniority and consequential benefits from the date when post became available i.e. 26.09.2018 in the interest of law and justice, by following the Rules 2006.”

3. For having bird’s eye view of the matter, certain undisputed facts, as emerge from the pleadings adduced on record by parties to the lis are that as per Himachal Pradesh Medical Education(Dental) Services Rules, 2006 (hereinafter, ‘Rules 2006’) (Annexure A-1), post of Assistant Professor being a Class I Gazetted post is to be filled in the following manner:

(i) 50% by promotion failing which by direct recruitment or on contract basis in the manner specified in Column No. 11-A.

(ii) 50% by direct recruitment or on contract basis in the manner specified in Column No. 11-A.

4. At the time of framing of Rules 2006, there were 9 posts of Assistant Professors, out of which one post fell to the Department of Dentistry, but subsequently vide Notification dated 2.3.2009 (Annexure A-2), 20 more posts were created, out of which, 06 fell to the share of Assistant Professors and consequently one more post of Assistant Professor came to the share of Public Health Dentistry. As of today, there are two posts of Assistant Professors in the discipline of Public Health Dentistry. According to the petitioner, after framing of Rules 2006, respondent Department is to fill up posts of Assistant Professors in the Department of Public Health Dentistry by following roster provided in Chapter XIII of Handbook on Personnel Matters, whereby first post is to be filled up by way of promotion from amongst the feeder category of Lecturers and second post by way of direct recruitment. Since the first post falling to the share of promotional quota in the case at hand, could not be filled up on account of interim stay granted by Hon’ble Supreme Court, first post, which as per chapter XIII of Handbook on Personnel Matters, was meant for promotees came to be filled up on 1.9.2017 by way of direct recruitment by one Mr. Vinay Kumar Bhardwaj, however, second post which was to be filled by direct recruitment, came to be filled by one Ms. Shelly Fotedar on 2.12.2013, on his promotion. Since Dr. Vinay Kumar Bhardwaj, who was recruited against the first post meant for promotees, stood further promoted to the post of Professor, one post of Assistant Professor, Public Health Dentistry/Community Dentistry fell vacant. Precisely the case of the petitioner is that since as per roster, first post was to go to promotees and second to direct recruits, post falling at point No.3 of roster, shall fall to the share of promotees and as such, he being borne on feeder cadre for promotion to the post of Assistant Professor, ought to have been considered for promotion to the post of Assistant Professor especially when he was otherwise fully eligible.

5. It is not in dispute that as per Rules 2006, petitioner, who was working as Lecturer in the Department since 19.5.2014 became eligible on 19.5.2017 for promotion to the post of