Rajiv Narain Raina, J.

1. This order will dispose of CWP No.15767 of 1995 titled Hari Kishan v. State of Haryana and others & CWP No.15599 of 1995 titled Duli Chand v. State of Haryana and others. The facts are taken from CWP No.15767 of 1995.

2. At the time of filing of the petition, the petitioner was working as an Assistant Fitter in Haryana Roadways Depot at Faridabad. The seniority list of Assistant Fitters was circulated on February 28, 1995, copy of which is at Annex P-1. The name of the petitioner is at Sr. No.11. There were five posts of Fitter lying vacant since two to three years of filing of the petition in 1995. The rules governing service are called the Haryana Transport Department (Group-C) Haryana Roadways Service Rules, 1995 which were published in the Gazette and came into force on January 31, 1995. According to these rules, filling the post of Fitter in the depot was made either by promotion from Assistant Fitter or by direct recruitment or by transfer. The qualifications prescribed for the post by promotion according to the rules is Middle pass with Hindi subject and three years experience on the post of Assistant Fitter. Thirteen Assistant Fitters were promoted as Fitters vide office order dated July 28, 1995. Of these 13, 5 were junior to the petitioner falling at Sr. Nos.12, 13, 14, 19 and 27 of the seniority list. The petitioner was ignored for promotion on account of the fact that he was rendered disqualified promotion lacking educational qualifications required by the Rules since he was not 8th Class pass. Though, prior to the rules the petitioner was eligible for consideration for promotion It may be noted that there is no challenge to the new rules.

3. The case of the petitioner is that for purposes of promotion the qualifications existing at the time when the post fell vacant are to be considered and the rules cannot take away his pre-existing right to promotion on the ground that old vacancies are required to be filled by the old rules and, therefore, he is entitled to be promoted with effect from the date the juniors were promoted on July 28, 1995 even when the new rules came into force. A direction is sought for quashing the promotion of the 3rd respondent and/or to consider his case for promotion to the promotional post of Fitter by treating him as eligible for the post from the date juniors were promoted.

4. On notice issued, the General Manager Haryana Roadways, Faridabad filed a written statement on behalf of the official respondents to contest the case. It is maintained that the petitioner is a totally illiterate person according to service book and bio-data record. He is not qualified for the promotional post as per the new rules. It is not disputed that five persons junior to the petitioner were promoted since they possessed educational qualifications and experience required by the rules. It is denied that post of Fitter was lying vacant in Faridabad depot since two or three years prior to the filing of the petition. Accordingly, the petitioner has no legal right to promotion and the petition deserves to be dismissed. The case was admitted on April 29, 1996. An additional affidavit has been filed by the General Manager Haryana Roadways, Faridabad dated April 24, 1996 which is prior to the admission of the matter. The affidavit clarifies that in para.9 of the written statement it was averred:-

“That para No.9 of the CWP is wrong and hence is denied. It is submitted that no post of fitter was lying vacant in Faridabad Depot since 2/3 years.”

5. On due reflection, the statement made did not reflect the correct position. The statement was made erroneously. The true position has been set out in para.3 of the additional affidavit retracting from the earlier averments which reads as follows:-

“3. That now it has been made to realise that by writing “No post of fitter was lying vacant in Faridabad Depot for the last 2/3 years” would mean that there was no vacancy for this post during the last