IMPORTANT POINT
The main legal point established in the judgment is the importance of considering the rules and directions applicable at the time of the availability of the vacancy, and the entitlement of the petitioner to be considered for promotion after acquiring the requisite academic qualification and length of service.

JUDGMENT :

Vivek Singh Thakur, J.

Petitioner, invoking provisions of Article 226 of the Constitution of India, has approached this Court against order dated 16.5.2011 (Annexure P-5) issued by Principal Secretary, Irrigation and Public Health Department (now Jal Shakti Vibhag) to the Government of Himachal Pradesh, whereby his claim to consider him for promotion to the post of Law Officer has been rejected. Petitioner is seeking direction to promote him to the post of Law Officer as per Recruitment and Promotion Rules (R&P Rules), existing on relevant point of time w.e.f. 7.9.2009 with all consequential benefits and also to pay interest @ 18% per annum to him for arrears payable to him on his promotion.

2. Petitioner has been working in clerical cadre in Irrigation and Public Health Department since 8th March, 1999 and at the time of filing petition on 16.11.2011 he had put 13 years of service and was working as Senior Assistant.

3. There were non-selection posts of Legal Assistants in the Department. Recruitment/appointment to the said posts was governed by Himachal Pradesh Department of Irrigation and Public Heath Legal Assistants (Class-III Non-Gazetted) Recruitment and Promotion Rules, 1996 (Rules 1996), framed by respondents. According to those Rules, these posts were to be filled 100% by promotion failing which by deputation and failing both by direct recruitment.

4. As per Rule 7 of Rules 1996, for direct recruitment essential qualification was that the candidate should possess a professional degree in law or its equivalent from any recognized University in India with 3 years experience as a practicing Advocate or 5 years experience while working in a Government/Semi Government Institutions.

5. As per Rule 11 of the Rules 1996, by promotion, essential qualification was as under:-

“By promotion from amongst the incumbents of clerical cadre (including Clerks/Senior Clerks/Junior Assistants) subject to fulfilling the Educational qualification prescribed in Col. No. 7 above with 5 years regular service or regular combined with continuous adhoc (rendered upto 31.3.1991) service failing which by deputation from amongst the Legal Assistants working in the identical pay scales of this post in other Government Departments.”

6. The aforesaid Rules 1996 were amended vide Notification dated 18.8.2006, whereby provision against Column No. 11 were substituted as under:-

“(a) For the existing provisions against Col. No. 11, the following shall be substituted:-

(i) By promotion from amongst the Senior Assistants/Senior Scale Stenographers/Statistical Assistants subject to fulfilling the educational qualification prescribed in Col. No. 7 with 5 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade.

(ii) By promotion from amongst the (Clerical cadre (which includes Clerks/Junior Assistants/Steno typist and Junior Scale Stenographers) subject to fulfilling the educational qualification prescribed in Col. No. 7 with 10 years regular or regular combined with continuous adhoc service rendered, if any, in the grade.

…….”

7. Vide Notification dated 4.12.2006, Government of Himachal Pradesh had decided and ordered to convert posts of Legal Assistants in all Departments to the Posts of Law Officers.

8. Vide Notification dated 6.9.2007 amendment was carried out in Recruitment and Promotion Rules, 1996 substituting nomenclature of the post of Legal Assistant to Law Officers.

9. Government of Himachal Pradesh vide Notification dated 19.9.2007 issued by Law Department had ordered that classification of Law Officers of various Departments designated as such vide aforesaid Notification as Class-II Gazetted.

10. Petitioner had completed his Degree in LLB Course during his service, with due permission from the concerned authority, in session 2006-2009.

11. Petitioner preferred a Writ Petition, CWP No. 7114 of 2010, titled as Sandeep Kumar Verma Vs. State of H.P. & others with prayer to issue writ of mandamus to respondent