State of Himachal Pradesh v. Yog Raj

of 2012} and based on said judgement, one Shri Amrick Singh were appointed as a PET by giving benefit of relaxation as in the communication dated

15.02.2011 and once the Respondent-Writ Petitioners possessed similar qualification of One Years Diploma - 11 - [2026:HHC:3308-DB] in Physical Education and they belonged to the same batch {1997-1998}, therefore, they deserve to be treated similarly by appointing them as Physical Education Teachers, under batch-wise recruitment mode and the denial was alleged to be illegal and unsustainable with the prayer to quash the fresh rejection orders dated 10.07.2018, [Annexure A-9], with the prayer to direct the State Authorities to appoint them as Physical Education Teachers against available vacancies as per batch-wise seniority and all service benefits accruing therefrom. STAND OF STATE AUTHORITIES-APPELLANTS BEFORE WRIT COURT:

5. In Reply to CWPOA No. 3573 of 2019, the State Authorities have averred that as per the Recruitment and Promotion Rules of 1973, the minimum educational qualification post of Physical Education Teacher was one year’s Diploma in Physical Education but after repealing of the Rules of 1973, the State Government had notified the New Recruitment and Promotion Rules on 10.01.2011 {Annexure A-1}, prescribing minimum educational qualification as 10+2 and Diploma - 12 - [2026:HHC:3308-DB] Physical Education {DPET} of duration of two academic years. 5(i). Reply Affidavit indicated that on 09.09.2009, the State Cabinet gave approval for fill-up 1000 posts of various categories which included 450 posts of Language Teachers, 200 posts of Drawing Masters, 225 Posts of Shastri Teachers and 125 posts of Physical Education Teachers as per the New Rules. It is averred that the approval granted by the State Cabinet on 09.09.2009 for filling up 1000 posts of various categories under the New Rules, was reconsidered by the State Cabinet on

29.01.2011, deciding to fill up the aforesaid 1000 {including 125 posts of Physical Education Teachers} by applying the Old Rules and New Rules, by notifying this decision on 15.02.2011 {Annexure A-2}, as one-time relaxation, but with the rider that persons recruited under Old Rules, shall have improve their qualifications within five years of appointment. 5(ii). Reply-Affidavit states that out of total 1000 posts of various categories of teachers - 13 - [2026:HHC:3308-DB] including 125 posts of Physical Education Teachers, for which one time relaxation was granted, 50% posts were to be filled by Direct Recruitment through Himachal Pradesh Subordinate Services Selection Board and remaining 50% posts to be filled by Batch-Wise Recruitment as per batch-wise seniority and other parameters at departmental level. Reply-Affidavit states that based on the one time relaxation, out of total 125 posts of Physical Education Teachers, about 63 posts were filled-up by Direct Recruitment and the remaining 62 posts were to be filled on batch-wise basis by considering batch-wise seniority. 5(iii). Reply-Affidavit stated that the Respondents herein cannot seek benefit of the directions passed in CWP No. 8022 of 2012, in the case Saroj Kumar (supra), in view of the fact that these 20 persons who were petitioners in the case of Saroj Kumar (supra) were appointed by way of special approval given in order to implement the decision of this Court. Reply-Affidavit states that relaxation given by Cabinet, being a One Time Relaxation, cannot be - 14 - [2026:HHC:3308-DB] stretched for an indefinite period and one relaxation cannot be applied for future recruitments which shall be dehors the Recruitment & Promotion Rules 2011, [Annexure A-1 in writ file], and also the Regulations dated 12.11.2014 notified by the NCTE under the Right of Children to Free and Compulsory Education Act, 2009 [hereinafter referred to as the RTE Act], mandating that no relaxation in Educational Qualification would be given case of recruitment of Physical Education Teachers. The Reply-Affidavit indicates that merely because some persons belonging the same batch of Diploma Holders in Physical Education have been appointed against 125 posts of PETs, (which were approved by the State Cabinet for being filled in 2009 and reiterated in 2011), by way of relaxation will not confer any vested right of appointment on the Respondents and others, who were not eligible the post of Physical Education Teachers, as per the Existing Recruitment and Promotion Rules dated 10.01.2011 {Annexure A-1 in writ file}. So far as the plea that after passing - 15 - [2026:HHC:3308-DB] of the judgement in case of Saroj Kumar (supra), one Shri Amrick Singh was appointed as PET was denied by stating that his appointment stands withdrawn, but he had filed an OA No. 297 of 2014, wherein, orders withdrawing his appointment was stayed on 27.01.2017 and two wrongs will not make a right. Reply-Affidavit further indicates that respondents-writ petitioners were never called for counseling in the year 2014, [Annexure A-6 in writ file} but were called to verify the credentials and such verification was not a part of selection process in any manner. In this background, the State Authorities have negated the claim of the respondents-writ petitioners. STAND OF RESPONDENTS-WRIT PETITIONERS IN REJOINDER:

6. Respondents-writ petitioners filed a rejoinder reiterating the averments in the writ petition with further plea that once the State Authorities have appointed one Sh. Amrick Singh as PET, on the basis of decision in the case of Saroj Kumar (supra), therefore, similar benefit should be extended to the petitioners also. - 16 - [2026:HHC:3308-DB] IMPUGNED JUDGMENT DATED 19.07.2022:

7. The Lead case, CWPOA No 3573 of 2019 filed by Respondents-Writ Petitioners and connected cases, was decided by the Learned Single Judge on

19.07.2022, accepting the claim of the Respondents- writ petitioners, in the following terms: “35. It has been categorically held in the aforesaid judgment that State Government is under obligation to act as per the notifications and instructions issued by NCTE from time to time because it acts as “an academic authority” under section 23 of the RTE Act. However, in the instant case, aforesaid case has no application the reasons instructions/notifications, if any, to not further relaxation in qualification appointment the post of PET came to be issued the year 2014, before time Government of H.P., itself vide notification dated 15.02.2011 had decided to give one time relaxation to the persons having qualification as per old R & P Rules. In the case at hand, petitioners, who had approached this Court year 2013-14 are entitled to be given benefit of relaxation in minimum education qualification in terms of notification dated

15.02.2011, as has been done by State of Himachal Pradesh in case of petitioners in Saroj Kumar’s case. - 17 - [2026:HHC:3308-DB]

36. Leaving everything aside, this Court that at present more than 870 posts of Physical Education Teachers are lying vacant in the State of Himachal Pradesh and as such, cases of the petitioners can be easily considered for appointment to the posts of PET on batch wise basis after granting them relaxation in minimum qualification in terms of notification dated

15.02.2011, as was ordered to be done by Division Bench of this Court vide judgment dated 9th January, 2012 passed in CWP No. 8022 of 2012, titled as Saroj Kumar and others vs. State of H.P. and others, which has been further upheld by Hon’ble Apex Court.

37. Consequently, the detailed discussion made hereinabove, all the petitions are allowed and order dated 10.07.2018 (Annexure A-9), is quashed and set-aside and respondents are directed to consider and decide the cases of the petitioners for appointment to the post of Physical Education Teachers on batch wise basis after having granted relaxation in minimum qualification in terms of Notification dated

15.02.2011 (Annexure A-2) and pursuant to counseling done on 14.7.2014 (Annexure A-6). Since, the petitioners have been fighting rightful claims for more 7-8 years, this Court hopes and trust that needful shall be done by the respondents expeditiously, preferably within a period of four weeks. Pending applications, if any, - 18 - [2026:HHC:3308-DB] also stand disposed of. Interim order, if any, is vacated.” CHALLENGE TO IMPUGNED JUDGEMENT DATED 19.07.2022 PASSED BY LEARNED SINGLE JUDGE:

8. In the instant Intra-Court Appeal, the State Authorities being the appellants have assailed the Impugned Judgement dated 19.07.2022 passed by Learned Single Judge, on the grounds that firstly, the Respondents-writ petitioners have no vested right of appointment when, pursuant to the one- time relaxation granted by the State Cabinet on

29.01.2011, as in communication dated 15.02.2011, they were considered but they were not selected against 62 posts of PETs meant for batch-wise recruitment} and secondly, the Impugned Judgement mandating the State Authorities to grant relaxation to the Respondents-writ petitioners so as to treat “one-time relaxation” to be “perpetual and indefinite relaxation” in view of the fact that the Respondents -writ petitioners have no right to seek relaxation as of right and the discretion to grant relaxation {under Rule 18 of the Rules}) and the time, stage, manner, and extent thereof lies within the domain - 19 - [2026:HHC:3308-DB] of the State Government and not the Court; and thirdly, findings recorded in Paras 36 and 37 of Impugned Judgement directing the State Authorities to grant relaxation to Respondents-writ petitioners, as given to petitioners in case of Saroj Kumar (CWP No 8022 of 2012 decided on 09.01.2012) as there was no declaration of law and therefore the same will not constitute a precedent, which has been ignored, and claim for similar treatment as given to Saroj Kumar {who were ineligible} shall perpetuate illegality and thus Impugned directions are erroneous and lastly, the Respondents -writ petitioners have neither questioned the New Rules of the post of PETs notified on 10.01.2011 {Annexure A-1} nor has the decision of the State Cabinet granting “one time relaxation” on 29.01.2011 nor the communication dated 15.02.2011 {to the extent of 1000 posts of teachers in various disciplines, which included 125 posts of PET, out of which 62 posts were meant for batch-wise recruitment} therefore, the presumption of constitutionality is attached to the said Rules and the decisions taken thereon, disentitling the - 20 - [2026:HHC:3308-DB] Respondents-writ petitioners for any relief. IMPUGNED JUDGEMENT STAYED:

9. The operation of the Impugned Judgement dated 19.07.2022, was stayed by this Court on

03.04.2023

10. Heard, Mr. Rakesh Dhaulta and Mr. Gobind Korla, Learned Additional Advocate General(s) State Authorities-Appellants in Lead Case i.e. LPA No. 194 of 2023 and connected LPA’s and Mr. Onkar Jairath, Mr. Vinod Thakur, Mr. R.L. Chaudahry, Mr. Ashok Chaudhary, Mr. Ravinder Singh Chandel, Mr. Lovneesh Singh Thakur, Mr. Vijay Chaudhary, Mr. Narender Singh Thakur, Mr. Prashant Shama, Mr. Vikas Rajput, Mr. Kush Sharma and Mr. Adarsh K. Vashists, Advocate for Respondents-writ petitioners and in CWPOA’s/CWPs for petitioners in respective petitions.

11. Now this Court proceeds to analyze the contention of the Learned Counsels for the respective parties in succeeding paras. ANALYSIS OF CONTENTIONS OF COUNSEL FOR APPELLANTS-STATE AUTHORITIES: First contention of Learned State Counsel

12. - 21 - [2026:HHC:3308-DB] the Respondents-writ petitioners have no vested right of appointment when, pursuant to the one-time relaxation granted by the State Cabinet on

29.01.2011, as in communication dated 15.02.2011, they were considered but they were not selected against 62 posts of PETs meant for batch-wise recruitment} Above contention of Learned State Counsel has force, for the reason, that on 09.09.2009, the State Cabinet took a decision to fill 1000 posts of various categories after issuance of new rules. The New Recruitment and Promotion Rules post of Physical Education Teachers was notified on 10.01.2011, (Annexure A-1, in writ file), and Rule 7 of New Rules conferred eligibility for the posts of Physical Education Teachers {PETs} on incumbents who were 10+2 and had passed 2 years Diploma in Physical Education Teacher from a University/Board recognized by State Government [other qualifications are not relevant instant set of cases]. Rule 10 prescribes the method of recruitment and the percentage was to apply - 22 - [2026:HHC:3308-DB] to posts to be filled by various methods, providing that 50% posts of Physical Education Teachers were to be filled by HP Subordinate Services Selection Board [now Commission Hamirpur] and 50% posts by Batch Wise Basis at departmental level. After issuance of New Recruitment and Promotion Rules on 10.01.2011, the Respondents-writ petitioners and others became ineligible for the post in question {as they possessed one year’s diploma in physical education vis-à-vis diploma of two years duration under the New Rules of 2011}. In this situation, in order to grant one chance of consideration, the State Cabinet took a decision on 29.01.2011, granting relaxation, by deciding to fill 1000 posts of teachers in various disciplines {including 125 posts of Physical Education Teachers, which were to be filled 50% by direct recruitment and 50% by batch- wise recruitment} by applying the Old Rules and New Rules. The decision taken by the State Cabinet on 29.01.2011 granting one time relaxation was notified by the State Authorities on 15.02.2011 {Annexure A-2} but with the rider that the persons - 23 - [2026:HHC:3308-DB] recruited under the Old Rules shall have to improve their qualifications within five years of appointment. ONE TIME RELAXATION GRANTED BY STATE CABINET FOR FILLING 125 POSTS OF PHYSICAL EDUCATION TEACHERS: 12(i). Consequent upon the approval granted for filling up aforesaid 1000 posts of teachers of various categories, including 125 posts of Physical Education Teachers, and by applying the one time relaxation granted on 29.01.2011, notified on 15.02.2011, out total 125 posts of PETs, 50% posts i.e. 63 posts of PET’s were to be filled by Direct Recruitment through HP Subordinate Services Selection Board and remaining 50% posts i.e. 62 posts of PET’s were to be filled by Batch-Wise Recruitment on the basis of the batch-wise seniority and other parameters at departmental level. BASED ON THE ONE-TIME RELAXATION RESPONDENTS-WRIT PETITIONERS CONSIDERED FOR RECRUITMENT AS PET’s: 12(ii). Pursuant the decision taken by State Cabinet on 29.01.2011, notified on 15.02.2011, granting one time relaxation, (in relation to 125 posts of PETs, to be filled by direct recruitment - 24 - [2026:HHC:3308-DB] and batch-wise recruitment i.e. 63:62 posts), the State Authorities have considered the Respondents -writ petitioners {in Lead Case} and others for the batch-wise recruitment against 62 posts, 50% of total 125 posts of PET’s}. Upon consideration, once the Respondents -writ petitioners were considered along with others for batchwise posts but could not did not find a place in final selection, due to shortage of posts vis-a-vis lower batch wise seniority/placement {as admitted in Para 6 (viii) of writ file by petitioners} therefore, the Respondents have a fundamental right of consideration but they do not have any vested right for appointment, in view of the mandate of the Hon’ble Supreme Court as discussed hereinunder. MERE PARTICIPATION IN SELECTION WILL NOT CONFER RIGHT OF APPOINTMENT: 12(ii-a). While dealing with the claim of aspirants for direct recruitment, the Honble Supreme Court has mandated in the case of N.T. Devin Katti and others vs Karnataka Public Service Commission and others, (1990) 3 SCC 157, in the following terms:

47. There is yet another aspect of - 25 - [2026:HHC:3308-DB] question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and advertisement expressly states selection shall be made it accordance with the existing rules of government orders, and if it further indicates the extent of reservations favour of various categories, the selection of candidates in such a case must be in accordance with existing rules and government orders, Candidates who apply, and undergo written or viva voce test acquire vested for being considered for selection in accordance with the terms and conditions contained the advertisement, unless advertisement itself indicates contrary intention. Generally, a candidate has right to be considered inaccordance with the terms and conditions set out in the advertisement as his right crystallizes publication advertisement, however amended retrospectively during the pendency of selection, in that event he has no absolute right in the matter. If the recruitment Rules are selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon language of the Rules and construction to ascertain the legislative - 26 - [2026:HHC:3308-DB] intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and of this question largely depends on the facts of each case having regard terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an eligible and is otherwise qualified inaccordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature. 12(ii-b). While dealing with the rights of aspirants for direct recruitment, the Constitutional Bench of the Honble Supreme Court has mandated in the case of Shankarsan Dash vs Union of India, (1991) 3 SCC 47, that a person has a fundamental right of consideration for the post in terms of the Rules - 27 - [2026:HHC:3308-DB] in force on the date of commencement of selection process but even after selection, such a person has no indefeasible right of appointment, in the following terms: “7. It is not correct to say a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant the decisions the State - 28 - [2026:HHC:3308-DB] of Haryana v. Subhash Chander Marwaha, Neelima Shangla versus State of Haryana or Jatinder Kumar versus State of Punjab.” 12(ii-c). While dealing with the claim of a selectee for appointment, the Honble Supreme Court in R S Mittal vs Union of India, (1995) Supp 2 SCC 230, has mandated that such a selected has no right of appointment, in the following terms:

10. It is no doubt correct that a person on the select-panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment….”. 12(ii-d). While dealing with the claim of aspirants for direct recruitment, the Full Bench of this Court in Berojgar Shastri Sangh Welfare Society versus State of Himachal Pradesh and Others along with connected matters, CWP No 8523 of 2011, has mandated that an aspirant has a fundamental right to be considered for the post as per the rules in force on the date of commencement of selection process but such an aspirant has no vested right for the post in the following terms:

7. We cannot accept these submissions - 29 - [2026:HHC:3308-DB] for the reasons that the law is now well settled and does not require restatement/reiteration that in the case of direct recruitment, which is the case before us, the petitioners cannot plead vested right to a post and consideration has to be of what the qualifications prescribed on the date of advertisement of the vacancies.

13. We need not multiply precedent any further or restate the settled applicable of direct recruitment as the principle by now is well settled that recruitment to the posts by direct recruitment is governed by the Rules as prevalent on the date when the vacancies were notified.” 12(ii-e). Reiterating the principle that a person has a fundamental right of consideration for a post but has no vested right of appointment as mandated by the Hon’ble Supreme Court in Mohd. Rashid versus Director, Local Bodies, New Secretariat and others, (2020) 2 SCC 582, in the following terms:-

13. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of vacancies were advertised. The candidates such as the appellants cannot claim any right of - 30 - [2026:HHC:3308-DB] appointment merely reason that they responded to an advertisement published on 12th September, 2013. Even after completion of the selection process, the candidates even on the list do not have any vested right to seek appointment only for the reason that their names appear on the merit list….” 12(ii-f). Principle of that mere participation in selection does not confer any automatic right of selection to a post was reiterated by the Hon’ble Supreme Court in Nutan Kumari versus BRA Bihar University, (2024) 13 SCC 432 in the following terms:-

22. It is also a part of settled service jurisprudence that merely by applying for a post pursuant to an advertisement, a candidate does not automatically acquire any vested right of selection. He only acquires a right for being considered for selection strictly in accordance with the extant rules. Once after promulgation of the New Rules for post of PET on 10.01.2011 the State Cabinet granted one-time relaxation on 29.01.2011, as notified on 15.02.2011, only to the extent of filling a total of 1000 posts of various categories of teachers, which - 31 - [2026:HHC:3308-DB] included 125 post of PETs and out of which 50 i.e. 63 posts were to be filled by direct recruitment and 62 posts by way of batch-wise recruitment. After grant of one-time relaxation and commencement of selection process for 62 posts to be filled under batch-wise recruitment, Respondents-writ petitioners were considered but due to their lower batch-wise placement {based on batch-wise parameters} could not be selected whereas others were selected and appointed as PETs. After filling up of these 62 posts meant for batch-wise recruitment, selection process had culminated/ended. After culmination of selection process, the Respondents-writ petitioners having been considered but not selected do not have “any vested right of appointment” as PETs against vacant posts and therefore, the Impugned Judgment directing the State Authorities to grant relaxation and to consider and appoint the Respondents-writ petitioners and others as PET’s against the vacant posts is erroneous.

13. Second contention of Learned State Counsel is that the Impugned Judgement directing the State - 32 - [2026:HHC:3308-DB] Authorities to grant relaxation and to consider and appoint the Respondents-writ petitioners so as to treat “one-time relaxation” to be “perpetual relaxation” is erroneous; The above contention has for the reason, that perusal of writ records, indicates that the State Cabinet took a decision on 09.09.2009, for filling 1000 posts of various categories after issuance of new rules. The New Recruitment and Promotion Rules for post of Physical Education Teachers was notified on 10.01.2011, (Annexure A-1, in writ file). By virtue of Rule 7 of the New Rules, the eligibility for the post of Physical Education Teachers was amended by requiring the candidates to be 10+2 with 2 years Diploma in Physical Education Teacher from University/Board recognized by State Government [other qualifications are not relevant in instant cases]. Rule 10 prescribes method of recruitment, whereby, 50% posts of Physical Education Teachers were to be filled by HP Subordinate Services Selection Board [now Commission Hamirpur] and 50% posts by Batch Wise Basis at departmental level. After issuance - 33 - [2026:HHC:3308-DB] of New Rules on 10.01.2011, the Respondents-writ petitioners and others, who became ineligible the post {as they possessed one year’s diploma in physical education vis-à-vis two years diploma}, and in order to grant one chance of consideration, the State Cabinet took a decision on 29.01.2011, granting relaxation in relation to 1000 posts of teachers in various disciplines {including 125 posts of Physical Education Teachers which were to be filled by applying the Old Rules and New Rules. Based on one-time relaxation granted by State Cabinet on 29.01.2011, notified on 15.02.2011 {Annexure A-2}, once the Respondents-writ petitioners were duly considered for batch-wise recruitment {62 posts} but were not selected due to their lower placement in terms of the parameters of batch-wise recruitment. The Impugned Judgement directing the State Authorities to grant relaxation and to consider and appoint the Respondents-writ petitioner (who are admittedly ineligible under the New Rules of 2011} against vacant posts of PETs, amounts to treating and converting “one time relaxation” - 34 - [2026:HHC:3308-DB] “perpetual and indefinite relaxation” cannot sustain, for the reason, firstly, relaxation cannot be claimed as of right and secondly, the grant of relaxation is discretionary on the part of State Government and thirdly, relaxation cannot be grant so as to distort the basic fabric of the Extant Rules of 10.02.2011 and lastly, mandamus could not have been issued by directing the State Authorities to grant relaxation and to consider and appoint the Respondents-writ petitioners and others (who are ineligibles} against vacant 870 posts of PETs shall result in injustice to eligibles candidates and shall result in extending benefit to ineligible candidates and undermine the standards of education and shall amount to giving benefits ineligible dehors the Statutory Rules of 2011 {Annexure A-2}, which is erroneous in law and cannot sustain. 13(i-a). For appreciating issue, a recap of Rule 18 of the Recruitment & Promotion Rules for the post of Physical Education Teachers, notified on

10.01.2011, {Annexure A-2, in writ file} reads as under: - 35 - [2026:HHC:3308-DB] “Rule 18: Power to relax: Where the State Government is of the opinion that it is necessary or expedient to do so, it may by order for reasons to be recorded in writing and in consultation with the Himachal Pradesh Public Service Commission/Subordinate Selection Board to relax any of provisions of these Rules with respect to any class or category or person or post.” A bare reading of Rule 18 indicates that the State Government is vested with the discretion to relax any of provision of these Rules, in view of the use of expression “may” in the said Rules. Such discretion is to exercised, after “formation of opinion” to be based on “necessity or expediency.” After formation of opinion, the State Government is bound to “consult” the Himachal Pradesh Public Service Commission/Subordinate Selection Board before granting relaxation to with respect to any class or category or person or post. Moreover, once Rule 18 stipulates the discretion qua relaxation conferred on the State Government has to be performed in a particular manner, subject to formation of opinion, on the basis of necessity - 36 - [2026:HHC:3308-DB] or expediency and after having consultation with the Public Service Commission/Board, therefore, the Impugned Judgement dated 19.07.2022, directing the State Government Authorities to grant relaxation, “amounts to substituting its opinion with the opinion to be formed by the State Government” by giving a go-bye to the prescribed mode and manner for granting relaxation in Statutory Rules and when, the Respondents-writ petitioners have neither any locus nor any claim for relaxation as of right. COURT CANNOT SUBSTITUTE ITS SATISFACTION FOR SATISFACTION OF GOVERNMENT 13(i-b). While dealing with the extent and limits of exercise of power of relaxation, it been mandated that the Courts cannot substitute its satisfaction for the satisfaction of the State Government by directing the authorities to grant relaxation as per mandate of the Honble Supreme Court in Keshav Chandra Joshi versus Union of India and others (1992) Supp (1) SCC 272. ISSUE DIRECTIONS TO INVOKE RELAXATION DEHORS STATUTORY RULES: 13(i-c). After taking into account the mandate of - 37 - [2026:HHC:3308-DB] Honble Supreme Court in the case of Keshav Chandra Joshi (supra), the directions passed by Tribunal to regularize erroneous promotions, by relaxing rules, who had not passed the departmental examination the Honble Supreme Court has mandated in Union of India versus Narendra Singh, (2008) 2 SCC 750, in following terms:

26. “…In this connection, it may be profitable to refer to a decision of this Court in Keshav Chandra Joshi & Ors. v. Union of India & Ors., (1992) Supp (1) SCC 272 where this Court was called upon to consider the ambit and scope of relaxation clause in Recruitment Rules. Rule 27 of the U.P. Forest Service Rules, 1952 invested in the Government power of relaxation which read thus: case, he may,

27. Where the Governor is satisfied that the operation of any rule regarding 'the conditions of service' of the members of the service in any causes undue hardship particular consultation with the Commission, notwithstanding anything contained in the rules applicable to the case, by order dispense with or the requirements of rule to such extent and subject to such conditions as he may consider necessary with the case in a just and equitable manner. for dealing

27. The Court held that such power should be exercised to the extent as may be necessary to ensure satisfactory working just and equitable manner but the Government removing hardship - 38 - [2026:HHC:3308-DB] cannot consciously and deliberately deviate the power of relaxation. from the Rules exercising

28. the relaxation-clause and Interpreting the power of the Governor, this Court observed;

33. Satisfaction of the Governor that the operation of the rules regarding the conditions of service would cause undue hardship a particular case or cases and the need to relieve hardship and to cause just and equitable results is a pre-condition. Even otherwise the court cannot substitute satisfaction for the satisfaction of the Governor in exercise of the power of deemed relaxation…”. RELAXATION CANNOT BE CLAIMED-GRANTED BY THE RESPONDENTS-WRIT PETITIONERS TO DISTORT STATUTORY RULES : 13(ii). Deprecating the claim for relaxation, in a situation where the relaxation resulted in distorting the Statutory Rules and that in marginalized cases and situations where exceptionally qualified candidates are available by the Honble Supreme Court in Food Corporation of India versus Bhanu Lodh, (2005) 3 SCC 618, in the following terms:-

12. “……..While the maximum age prescribed under the Recruitment Rules is 35/ 40 years the concerned posts, departmental candidates the age of 52-53 years were proposed to be appointed. Even assuming that there - 39 - [2026:HHC:3308-DB] is a power of relaxation under the Regulations, we think that the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended to be used in marginal cases where exceptionally qualified candidates are available. We do not think that they are intended as an 'open Sesame' for all and sundry. The wholesale go by given to the Regulations, and the manner in which the recruitment process was being done, was very much reviewable as a policy directive, in exercise of the power of the Central Government under Section 6(2) of the Act…

21. …..Hence, it is not possible to read any regulation framed under section 45 inconsistent with or overriding a directives or instruction validly given the Central Government to FCI under section 6(2) of the Act. Apart therefrom, we are not able to appreciate the argument that the power of the Board of Directors prescribed age limit can be exercised in such an unreasonable manner as to distort the regulation itself. As we have noticed, the relaxation could not have been done for the benefit of persons who were over-aged by about 15 years…”. MANDAMUS CANNOT BE ISSUED FOR GRANT RELAXATION-CANNOT BE CLAIMED AS OF RIGHT-LIES WITHIN DOMAIN OF GOVERNMENT: - 40 - [2026:HHC:3308-DB] 13(iii). While dealing with the issue relating to the “may” in the relaxation Clause in the Recruitment & Promotion Rules, the Hon’ble Supreme Court in State of Uttar Pradesh and others versus Vikash Kumar Singh and Others, (2022) 1 SCC 347 has mandated that the term “may” used in the Rules providing for relaxation is discretionary on the part of the Competent Authority. Such relaxation cannot be prayed as a matter of right. The relaxation being discretionary is to be based upon the conscious decision to be taken by the Competent Authority and no mandamus can be issued directing the Competent Authority to grant relaxation in the Rules to the aspirants or persons, in the following terms:

7.1 The learned Single Judge thereafter while quashing and setting aside the eligibility lists dated 18.03.2019 and

10.05.2019 has issued the writ of mandamus commanding or directing the competent authority to grant relaxation in qualifying service, which as such was permissible under Rule 4 of the 2006 Relaxation Rules. The word used the Rule 4 of Relaxation Rules, 2006 is “MAY”. Therefore, the relaxation - 41 - [2026:HHC:3308-DB] may be at the discretion of the competent authority. The relaxation cannot be prayed as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service. Therefore, High Court has committed a grave error in issuing the writ of mandamus commanding the competent authority to grant relaxation in the qualifying service. Consequently, the High Court has also erred in quashing and setting aside the eligibility lists dated 18.03. 2019 and 10.05.2019, which as such were prepared absolutely in consonance with the Rules, 1990 and Rules, 2006. The impugned judgments and orders passed by the learned Single Judge as well as the Division Bench of the High Court are not sustainable in law.” GRANT OF RELAXATION BY SUBSTITUTING ITS OPINION WITH THE REQUIRED OPINION TO BE FORMED BY STATE- IMPERMISSIBLE: 13(i-e). Pertinently once the Statutory Rules the post of PETs dated 10.01.2011 were in force prescribing the minimum educational qualification as 10+2 and 2 years Diploma in Physical Education and the State Government in its wisdom, granted - 42 - [2026:HHC:3308-DB] ‘one time relaxation” in relation to 62 posts meant for batchwise recruitment, in terms of the decision of the State Cabinet dated 29.01.2011, notified on

15.02.2011 and the Respondents-writ petitioners, were considered for these posts of PETs per the existing rules of 2011 {Annexure A-2} but were not selected due to their lower placement as per the parameters for batch recruitment. In these circumstances, the Impugned Judgement dated 19.07.2022, directing the State Authorities to grant relaxation to the Respondents -writ petitioners who are ineligible so as to consider and appoint them by giving a complete go-bye to the eligibility stipulated in Statutory Rules of 2011 [at relevant time} and shall undermine the standards of education and shall amount to compromising with recruiting the best talent and shall amount to curtaining the fundamental right of consideration of eligible-candidates. The Impugned directions shall result in converting and treating “one-time relaxation” “perpetual and indefinite relaxation”, despite the fact that “the power of relaxation, the extent of relaxation, the mode, manner, stage and time and - 43 - [2026:HHC:3308-DB] “formation of opinion, for relaxation on the basis of necessity or expediency’ fell with the realm of the State Government”. The Impugned Judgement whereby, the Learned Single Judge has formed its opinion so as to substitute the same with the opinion to be formed by the State Government as per the Statutory Rules”, is erroneous. Moreover, once there was neither the infringement of any constitutional right or legal right nor any corresponding obligation was cast on the State Authorities to grant relaxation and to consider and appoint the Respondent-writ petitioners and others, who were not at all eligible for the post of PETs, then, in this scenario, the Impugned directions passed dehors the Statutory Rules cannot sustain and the same are accordingly interdicted and quashed and set-aside.

14. Third contention of Learned State Counsel is that the findings recorded in Paras 36 and 37 of Impugned Judgement directing the State Authorities to grant relaxation to Respondents-writ petitioners, as given to petitioners in case of Saroj Kumar (CWP No 8022 of 2012 decided on 09.01.2012) - 44 - [2026:HHC:3308-DB] as there was no declaration of law and therefore the same will not constitute a precedent, which has been ignored, and claim for similar treatment as given to Saroj Kumar {who were ineligible} shall perpetuate illegality and thus Impugned directions are erroneous. Above contention of Learned State Counsel has force, for the reason, firstly, that the judgement in case of Saroj Kumar (supra) is distinguishable ; and secondly, in the case of Saroj Kumar (supra) the applicability of Rule 18 of the Recruitment and Promotion Rules for post of PET notified on

10.01.2011 (Annexure A-2) escaped notice, when, the discretion for relaxation was exercisable on the basis of “formation of opinion” on the basis of “necessity or expediency” and by consulting the Public Service Commission /Board” and thirdly, another material was not brought to the notice in case of Saroj Kumar (supra) that relaxation granted by the State Cabinet on 29.01.2011, notified on 15.02.2011 was a “one-time relaxation” in relation to 125 posts of Physical Education Teachers {i.e. 63 posts to be - 45 - [2026:HHC:3308-DB] filled by direct recruitment and 62 posts by batch- wise recruitment}. Even once the selection process for these posts had culminated in 2011/2012 then, any unfilled or future vacancies could not have been filled by converting or treating the “one time relaxation” to be “perpetual or infinite relaxation”, so as to defeat the extent of relaxation granted the State Government. After passing of judgement and dismissal of SLP in limine without reasons in the case of Saroj Kumar (supra), the State Authorities “after granting special relaxation”, implemented the judgement by appointing persons who were petitioners in the case of Saroj Kumar and once there was neither any adjudication on merits by this Court {in relation to relaxation under Rule 18} nor there was any declaration by the Honble Supreme Court. In these circumstances, the contention of the Learned State Counsel is accepted, that judgments in Saroj Kumar (supra) which did not declare the law, and in absence of any declaration of law, the said judgement did not constitute a precedent and was not binding - 46 - [2026:HHC:3308-DB] and therefore the Respondents-writ petitioners and others {who are ineligible as per rules} and claim by the Respondents-writ petitioners for parity shall perpetuate illegality, so as to defeat the foundational fabric of public employment embedded in Articles 14 and 16 of the Constitution of India and the Statutory Rules notified under the provisio to Article 309 of the Constitution of India for the post of Physical Education teacher on 10.01.2011 (Annexure A-2, in writ file). DISMISSAL OF SLP WITHOUT DECLARATION OF LAW- NOT A BINDING PRECEDENT: 14(i). While dealing with the principle of merger and the effect of dismissal of SLP without recording reasons, the Hon’ble Supreme Court in the case of Kunhayammed and Others versus State of Kerala and another, (2000) 6 SCC 359, has outlined the principles in the following terms: “27. A petition for leave to appeal to this Court may be dismissed by a non- speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special - 47 - [2026:HHC:3308-DB] leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the apex court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was - 48 - [2026:HHC:3308-DB] considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.” 14(i-a). The above principles were reiterated by the Hon’ble Supreme Court in State of Orissa and another versus Dhirendra Sunder Das and Others, (2019) 6 SCC 270, in the following terms: “9.27. It is well-settled principle of law emerging from a catena of decisions of this Court, including Supreme Court Employees’ Welfare Assn. v. Union of India and State of Punjab v. Davinder Pal Singh Bhullar, the dismissal of an SLP in limine simply implies that the case before this Court was not considered - 49 - [2026:HHC:3308-DB] worthy of examination for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons, does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution.” 14 (i-b). While re-enforcing the principles of merger vis-à-vis the effect of dismissal of SLP by a non- speaking order which did not declare the law and was not to constitute a precedent having no binding effect [except the parties therein in personam] has been outlined by the Hon’ble Supreme Court V. Senthur and Another versus M. Vijay Kumar, Secretary, Tamil Nadu Public Service Commission and Another, (2022) 17 SCC 568, in the following terms:

23. It is thus clear that this Court in unequivocal terms has held that if the order of dismissal of SLPs is supported by reasons, then also the doctrine of merger would not be attracted. Still the reasons stated by the court would attract applicability of Article 141 of the Constitution of India, if there is a law declared by this Court which obviously would be binding on - 50 - [2026:HHC:3308-DB] all the courts and the tribunals India and certainly, the parties thereto. It has been held that no court, tribunal or party would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. Such an order would mean that it has declared the law and in that light, the case was considered not fit for grant of leave.” Based on the principles mandated by the Hon’ble Supreme Court in the case of Kunhayammed, Dhirendra Sunder Das and V. Senthur (supra) and taking into account the facts and circumstances of instant case, even if 20 petitioners in the case of Saroj Kumar (supra) were directed to be considered for relaxation but without taking into account the applicability and effect of Rule 18 of the Statutory Rules and another aspect as to whether One-Time Relaxation granted by State Authorities on 29.01.2011 notified on 15.01.2011 was confined to and related to 125 posts of Physical Education Teachers and after the dismissal of SLP in limine, without reasons, special relaxation was granted the petitioners in case of Saroj Kumar, so as to implement the - 51 - [2026:HHC:3308-DB] judgment and once there was no adjudication on merits after considering the above material aspects either by the Writ Court nor was there any declaration of law by the Hon’ble Supreme Court therefore, the judgement in case of Saroj Kumar (supra), having not declared the law, was not a binding precedent. In these circumstances, Respondents-writ petitioners, who are ineligible as per the Statutory Rules, have neither any locus nor any right for claiming parity ineligibles. Accepting the prayer for parity shall amount to perpetuating illegality, by appointing Respondents-writ petitioners in contravention of and dehors the Statutory Rules for the post of PET’s of 2011. Extending the parity to the Respondents- writ petitioners ineligibles shall certainly violate the fundamental right of consideration of eligibles and shall amount to giving a complete go-bye to the eligibility prescribed in the Statutory Rules, rendering the Rules nugatory and otiose is impermissible. In these circumstances, the Impugned Judgement passed by Learned Writ Court directing the State Authorities to grant relaxation and to consider and appoint - 52 - [2026:HHC:3308-DB] Respondents-writ petitioners, as PET, despite their ineligibility cannot be permitted to operate. Ordered accordingly.

15. Last contention of Learned State Counsel is that the Respondents-writ petitioners have neither questioned the New Rules for post of PETs notified on 10.01.2011 {Annexure A-1} nor has the decision of the State Cabinet granting “one time relaxation” on 29.01.2011 and communication dated 15.02.2011 which disentitled the Respondents-writ petitioners for any relief. Above contention has force, for the reason, that the State Authorities issued the Recruitment and Promotion Rules for post of PET’s on 10.01.2011 thereafter granted one-time relaxation

29.01.2011, notified on 15.02.2011 filling up 1000 posts of various categories of teachers which included 125 posts of PETs, {out of which 63 posts of PETs were to be filled by direct recruitment and 62 posts by batch-wise recruitment} but once the Respondents-writ petitioners in Lead case and other connected cases, have not questioned either - 53 - [2026:HHC:3308-DB] the Statutory Rules nor the decision of State Cabinet dated 29.01.2011 granting the “one time relaxation” nor the communication dated 15.02.2011. Not laying a challenge amounts to waiver. Even presumption of constitutionality is attached the Statutory Rules and even, the Respondents-writ petitioners are not eligible and being ineligible, have neither any fundamental right nor any legal right to be appointed as PETs under the State Government. These material aspects escaped notice of Learned Writ Court and therefore, the Impugned Judgement cannot sustain. Hence, the same interdicted. CONTENTION OF LEARNED COUNSEL FOR THE RESPONDENTS-WRIT PETITIONERS:

16. Arguments on behalf of the Respondent- writ petitioner were led Mr. Onkar Jairath, Advocate, followed by other Learned Counsels.

17. First contention of Learned Counsel is that the Respondents-writ petitioners being similarly placed vis-a-vis the 20 persons, who were petitioners in Saroj Kumar (supra) [CWP No.8022 of 2012, decided on 09.01.2012, Annexure A-3], against which was - 54 - [2026:HHC:3308-DB] SLP was dismissed on 17.12.2013 [Annexure A-4] deserve similar treatment. The above contention is misconceived, for the reason, that judgement in case of Saroj Kumar (supra) is distinguishable. In case of Saroj Kumar (supra), the applicability of Rule 18 of Recruitment and Promotion Rules for post of PET notified on

10.01.2011 (Annexure A-2) and the fact that the relaxation granted on 29.01.2011, which was notified on 15.02.2011 was “one time relaxation” in relation to 125 posts of Physical Education Teachers {i.e. 63 posts to be filled by direct recruitment and 62 posts by batch-wise recruitment}. Even, once the selection process for these 125 posts had come to be culminated in 2011/2012 then, any unfilled or future vacancies could not have been filled by converting or treating “one time relaxation” to be “perpetual or infinite relaxation”, so as to defeat the extent of relaxation granted by the State Government. After passing of the judgement and dismissal of SLP limine without reasons, the State Authorities “after granting special relaxation” - 55 - [2026:HHC:3308-DB] so as to ensure implementation of the judgement, gave appointment to petitioners the case of Saroj Kumar. Notably, there was neither any adjudication on merits by this Court {in relation to the one-time relaxation granted under Rule 18} nor was there any declaration of law by the Honble Supreme Court in the case of Saroj Kumar (supra) can only be construed as a judgement in personam and the said judgement did not constitute a precedent and was not binding and therefore, the Respondents-writ petitioners and others {who are ineligible as per rules} cannot claim parity. Impugned Judgement directing to extend the parity cannot pass the test of judicial scrutiny, as the Respondents-writ petitioners were ineligible having no right for the post. Even the petitioners in case of Saroj Kumar (supra) were ineligible but were appointed, so as to honor judgement passed by Learned Writ Court without examining the issue as to whether the “one time relaxation granted by - 56 - [2026:HHC:3308-DB] the State Cabinet, in relation to 125 posts of PET (including 62 posts meant for batch-wise recruitment} could be “converted or treated to be perpetual or indefinite relaxation” and by overlooking another aspect as to whether the “power of relaxation vested in the State Government under Rule 18 of the Rules of 2011 could have been exercised, by a subordinate functionary in the absence of formation of opinion on the basis of “necessity or expediency” by resorting to consultancy with State Public Service Commission/Subordinate Services Selection Board. Non-compliance with this statutory mandate at the designate level, cannot be a ground to claim parity. Permitting parity to the Respondents-writ petitioners with petitioners in the case of Saroj Kumar (supra) who were ineligible shall perpetuate illegality. The prayer of the Respondents-writ petitioners for parity despite being ineligible shall defeat the foundational fabric of public employment embedded in Articles 14 and 16 of the Constitution of India and shall violate the Statutory Rules notified under provisio to Article 309 of the Constitution of India for the - 57 - [2026:HHC:3308-DB] post of Physical Education Teacher on 10.01.2011 (Annexure A-2, in writ file). Permitting parity shall render the minimum qualifications and the Rules nugatory and otiose. In these circumstances, the claim for parity by the respondents-writ petitioners, not tenable on facts as well as law and, therefore, the same is turned down.

18. Second contention of the Learned Counsel for the respondents-writ petitioners is that as per the mandate of the judgment of Hon’ble Supreme Court in the case of State of Uttar Pradesh and others versus Arvind Kumar Srivastava and others (2015) 1 Supreme Court Cases 347 to assert that once the benefit has been extended to 20 petitioners in case of Saroj Kumar (supra), then, similar benefits should be extended to the respondents-writ petitioners and other incumbents. The reliance placed on the judgment case Arvind Kumar Srivastava (supra) appears to be attractive but on scanning the principles laid down in aforesaid judgments, the same finally turns up to be against the Respondents-writ petitioners for the - 58 - [2026:HHC:3308-DB] reason, that it is only the judgement, which declares the law and is a judgment in rem, which constitutes a binding precedent. Moreover, the Respondent-writ petitioners participated in selection process, against 62 batch-wise posts, out of 125 posts of PETs but remained unsuccessful, by not finding a place due to lower placement/seniority as per parameters for batch-wise and no junior incumbent in terms of batch-wise parameters has been appointed then, Impugned Judgment, directing to grant relaxation and to consider and appoint the Respondent-writ petitioners against future 870 vacant post of PET’s by violating, contravening and defeating the object intent of “one time relaxation” “so as to treat it as reservoir for filling future vacancies.” Further, the future vacancies, if any could only be filled from eligible incumbents after initiating selection process and not otherwise. Last but not least, the Impugned Judgement directing the State Authorities to grant relaxation and to consider and appoint the Respondents-writ petitioners and others, who are ineligible and who do not - 59 - [2026:HHC:3308-DB] possesses the minimum eligibility of “2 years Diploma Physical Education’ by which is a sine-qua-non for consideration for post of Physical Education Teacher as per Rule 7 (a) of Statutory Rules of 2011, cannot be permitted to operate, so as to grant benefits, by giving a go-bye to Statutory Rules, occupying the field (at relevant time). RESPONDENTS-WRIT HAVE NO RIGHT AGAINST FUTURE VACANCIES : PETITIONERS-INELIGIBLE 18(i). While dealing with the issue as to whether after the completion of selection process, the future vacancies could be filled-up from the waiting list or otherwise has been answered by the Hon’ble Supreme Court in Gujarat State Deputy Executive Engineers Association versus State of Gujarat and Others, (1994) Supp (2) SCC 591, in the following terms:

8. Coming to the next issue, the question is what is a waiting list? can it be treated as a source of recruitment from which candidates may be drawn as and when necessary? and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is - 60 - [2026:HHC:3308-DB] a list of eligible and qualified candidates who in order of merit are placed below last selected candidate. How should operate and what is its nature may be governed by the rules. Usually linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent, authority prepares a waiting list then it is in respect of those ten seats only for which selection or competition was held. Reason it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing the date when advertisement issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the reason or the next selection or examination is not held soon. A candidate in the waiting in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. - 61 - [2026:HHC:3308-DB] But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. She has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.” 18(i-a). While dealing with the right of persons or wait listed candidates against future vacancies after the earlier selection process had come to an end was negated by the Hon’ble Supreme Court in Rakhi Ray and others versus High Court of Delhi and others, (2010) 2 SCC 637, in the following terms:

12. In view of above, law can be summarized the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of - 62 - [2026:HHC:3308-DB] India, thus, a nullity, inexecutable and unenforceable law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/ advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service anymore.” VACANCIES ARISING AFTER CULMINATION OF SELECTION PROCESS CANNOT BE FILLED WITHOUT THE COMMENCEMENT OF FRESH SELECTION PROCESS: 18(ii). Reinforcing the principle that the vacancies arising after the culmination of selection process cannot be filled-up without issuing the proper advertisement and without following fresh selection process was outlines by the Hon’ble Supreme Court in Sudesh Kumar Goyal versus State of Haryana and Others, (2023) 10 SCC 54, in the following terms:

19. This takes us to the second argument the appellant could have been easily adjusted against the vacancy caused due to resignation of one of the selected candidates. The argument per se is bereft of merit inasmuch as all the vacancies notified stood filled - 63 - [2026:HHC:3308-DB] up initially. However, if one of the selected candidates joins and then resigns, it gives rise to a vacancy which could not have been filled up without issuing a proper advertisement and following the fresh selection process. The Division Bench rightly dealt with the above contention in the light of the precedent of the various decisions of this Court and we do not feel that any error has been committed in this context.” RESPONDENTS- WRIT PETITIONERS BEING INELIGIBLE BENEFICIARY OF ILLEGALITY HAS NO RIGHT AGAINST FUTURE VACANCIES: 18(ii-a). While examining the issue as to whether the appointment could be given against the future vacancies, even while balancing the equities was answered by this Court in Meenakshi versus State of Himachal Pradesh, 2021 SCC Online HP 7310 which stands approved by the Hon’ble Supreme Court in Vivek Kaisth and another versus State of Himachal Pradesh and Others, (2024) 2 SCC 269, in the following terms:

41. …The second reason given was that in any case the balance of equity would lie in favour of the petitioner (i.e. respondent No. 4 before High Court), - 64 - [2026:HHC:3308-DB] and not the present appellants. The reasons given were as follows:

50. cases, selection therein was held this Court, and secondly, “Having carefully perused aforesaid judgments rendered by Hon’ble Apex Court, which have been otherwise taken note above this Court finds that though in the aforesaid the petitioners to be not in accordance with law but their selection was protected by Hon’ble Apex Court, while exercising under Article 142 of the Constitution of India, which power is firstly not available in the case at hand, there is active challenge to the selection of the respondents Nos. 4 and 6 by the petitioners herein, whose rights are equally important as that of the aforesaid in case respondents Nos. 4 and 6 are allowed to continue on their posts, infringement participate/being petitioners considered in the selection process for the posts while balancing equalities, the party which is fighting for a just cause, its right (Sic rights) are to be protected and not of the party, which is beneficiary of an illegality committed by / authorities.” same would in question, and respondents and, result appointing selecting NO PERSON CAN SEEK MANDAMUM FOR FILLING POSTS UNLESS STATUTORY RULES EXPRESSLY PROVIDE FOR IT: - 65 - [2026:HHC:3308-DB] 18(iii). While dealing with the issue as to whether a person can seek “mandamus” directing the State Authorities to fill-up vacant posts has been answered by the Hon’ble Supreme Court in Shankarsan Dash (supra) in the following terms:

7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and - 66 - [2026:HHC:3308-DB] we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, Neelima Shangla versus State of Haryana, or Jatendra Kumar versus State of Punjab.” 18(iii-i). While dealing with a similar Hon’ble Supreme Court in the case of Ankita Thakur and others versus Himachal Pradesh Staff Selection Commission and Others, 2023 SCC Online SC 1472 held that an employer cannot be forced to fill all the existing vacancies and even a candidate in the merit-list has no indefeasible right of appointment in the following terms:- Issue 41 (vii) 41(vii) Whether the State (i.e. the employer could be forced to fill all vacancies advertised; and whether it could be restrained from carrying it forward for filling it as per the amended/new Rules.” Answer to Issue No. (vii)

58. It is well settled that an employer cannot be forced to fill all the existing vacancies under the old Rules. The employer may, in a given situation, withdraw an advertisement and issue a fresh advertisement in conformity with the new or amended Rules. Even a candidate included the merit - 67 - [2026:HHC:3308-DB] list has no indefeasible appointment even the vacancy exists. Issue No. (vii) is decided accordingly.” VACANCIES TO BE FILLED AS PER RULES IN FORCE ON COMMENCEMENT OF SELECTION PROCESS: 18 (iv). In the instant case, the selection process was initiated as per the Rules notified on 10.01.2011 the “One Time Relaxation” was granted on

29.01.2011, which was notified on 15.02.2011, with respect to 125 posts of Physical Education Teachers. Against these posts, under one time relaxation, the Respondents-writ petitioners were considered but they could not be selected. The selection process come to an end in 2011-2012. So far as the vacancies which existing after culmination of selection process could not be filled-up by directing the appointment of respondents-writ petitioners who are not eligible. The vacancies occurring after culmination of earlier selection process were to be filled-up as per the Rules force on the date of commencement of selection process as mandated by the Hon’ble Supreme Court in State of Himachal Pradesh and Others versus Raj Kumar (2023) 3 SCC 773, in - 68 - [2026:HHC:3308-DB] the following terms: “82.2 It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.

82.3 The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed in view of the policy decision taken by the Government. There is no obligation for the Government make appointments as per the old Rules the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement the policy decisions of Government must be fair and reasonable and must be justified on the touchstone of Article 14.

84. The decision in Deepak Agarwal is a complete departure from the principle in Rangaiah, inasmuch as the Court has held that a candidate has a right to be considered in the light of the existing rule. That is the rule in - 69 - [2026:HHC:3308-DB] force on the date the consideration takes place. This enunciation followed in many subsequent decisions including that of Union of India v. Krishna Kumar. In fact, in Krishna Kumar Court held that there is only a "right to be considered for promotion in accordance with rules which prevail on the date on which consideration for promotion take place.” STATE CANNOT FILL VACANCIES DEHORS THE ELIGIBILITY IN STATUTORY RULES: 18(v). While dealing an issue as to whether a person could claim appointment dehors the procedure and eligibility prescribed the Statutory Rules was negated and the right of the State not to fill vacancies was reiterated by the Constitutional Bench of Hon’ble Supreme Court in Tej Prakash Pathak and Others versus Rajasthan High Court and Others (2025) 2 SCC 1 in the following terms: “65.5 Extant Rules having statutory force are binding on the recruiting body both in of procedure and eligibility. However, where the Rules are non- existent, silent, administrative instructions may fill in the gaps;

65.6 Placement the select list gives no indefeasible right to appointment. The State or instrumentality - 70 - [2026:HHC:3308-DB] for bonafide reasons may choose not to fill up the vacancies. However, vacancies exist, the State instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.” NCTE REGULATIONS OF 12.11.2014 DISENTITLE RESPONDENTS-WRIT PETITIONERS FOR POST OF PET AGAINST FUTURE VACANCIES:

19. Once the culmination of selection process for 125 posts of PETs, initiated in the year 2011/ 2012, the Respondents-writ petitioners and others, who possess “One Year Diploma in Physical Education under 1973 under repealed Rules but do not possess “Two Years Diploma in Physical Education” as mandated under the New Rules notified on

10.01.20111 {Annexure A-2, in writ file} and the requirement of said qualification was reiterated in Regulations notified on 12.11.2014 [Taken on Record], issued under Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 [referred to as Right to Education Act]. 19(i). Recap of the Recruitment & Promotion Rules for the post of Physical Education Teacher as notified by the State Government on 10.01.2011, reads as under:-

7. Minimum educational and qualifications required direct recruitment - 71 - [2026:HHC:3308-DB] (a) Essential Qualification: (a) Senior Secondary School (+2) or its equivalent examination passed with at fifty percentage marks and diploma in Physical Education (D.P.Ed) of a duration of a academic University/Board recognized by HP Government OR (a) Bachelor’s Degree Physical Education with fifty percent marks (B.P.Ed.) from a University recognized by HP Govt. OR (b) Bachelor’s Degree with Physical Education as an elective subject with fifty percent marks in Physical Education from a University recognized by HP Govt. OR (c) For Ex-Servicemen candidates Senior Secondary School (+2) or its equivalent examination with pass Course of PTI from Army School of Physical Education Poona. 05% relaxation in marks will be given to those who have at least participated in International/National/SGFI/Sports competition or Position Holders Inter-Zonal sports competitions. a) Desirable Qualification Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in peculiar conditions prevailing in the Pradesh. 8 & 9 Not relevant ........... recruitment Method direct whether recruitment promotion, deputation, transfer and the percentage of post(s) to be filled in by various methods - 72 - [2026:HHC:3308-DB] recruitment 100% by direct regular basis or by recruitment on contract basis in the following manner - i) ii) 50% by the HPSSSB Hamirpur 50% by the batch wise basis through Department contract employee will The emoluments as given in Col. No.15-A and will be governed by service conditions as specified in the said column. 11 to 14 15. Not applicable ............. Selection for appointment direct recruitment Selection for appointment to the post of direct recruitment shall be made on the basis of viva-voce/written test or both by the H.P.S.S.S.B/recruiting authority (as the case may be) as considered necessary or expedient by written test or practical test. The standard/syllabus will be determined by the H.P.S.S.S.B/ other recruitment authority as the case may be. 19(ii). Reference to the NCTE Regulations dated

12.11.2014, reads as under: The National Council for Teacher Education Determination of Minimum Qualifications for Persons to be recruited as Physical Education Teachers in Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014 Level

1. Primary and Upper Primary (For Classes-I to VIII) Minimum Academic and Professional Qualifications (a) Senior Secondary (Class XII or its equivalent) with at least 50% marks from recognized board Or Candidates who have passed the Senior Secondary examination equivalent and have participated sports/games school/college/district level in accordance with the and National Council for Teacher Education Procedure) Regulations, 2007 notified on (Recognition Norms (+2) - 73 - [2026:HHC:3308-DB] (Class XII or

20.12.2007). Or Senior Secondary equivalent) with at least 45% marks from recognized board (in accordance with the National Council for Teacher Education (form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002. (b) in Physical Education of duration not less than two from any its equivalent) National Council for Teacher Education recognized institution. Certificate/Diploma teacher (or In the backdrop of the Recruitment Rules of 2011 and the Recruitment & Promotion Rules and the NCTE Regulations, this Court is of the considered view future vacancies which occur after issuance of these Regulations cannot be directed to be filled by the State Authorities by acting dehors the Statutory Rules as well as the NCTE Regulations. Once Respondents-writ petitioners and others in connected cases, are not eligible as per Statutory Rules and Statutory regulations, then, Impugned Judgement directing the State Authorities -Appellants, to fill future vacancies from ineligibles cannot be permitted to sustain. CONCLUSION:

20. The Impugned judgement passed by Learned - 74 - [2026:HHC:3308-DB] Single Judge directing the State Authorities consider and appoint Responders-writ petitioners after granting relaxation against the future vacant posts cannot sustain, for the reasons. Firstly, based on the one time relaxation granted on 29.01.2011, as notified on 15.02.2011, in relation to total 1000 posts of various categories, which included 125 posts of PETs {posts relating to instant case}, the State Authorities have granted an equal opportunity to the Respondents-writ petitioners and others considering their cases against these 125 posts of PET’s {out of which 63 posts were to be filled by direct recruitment and 62 posts by batch- wise recruitment} ; and secondly, upon grant of one-time relaxation, the Respondent-writ petitioners were duly considered against 62 batch wise posts out of total 125 posts of PETs); and thirdly, after having participated but remaining unsuccessful, they have no right to raise claim against future vacancies ;and fourthly, the Respondents-writ petitioners who were ineligible under New Rules notified on 10.01.2011 cannot be directed to be appointed against - 75 - [2026:HHC:3308-DB] future vacancies, so as to violate, defeat and negate the “one time relaxation” granted on 29.01.2011 and notified on 15.02.2011; and fifthly, Respondents -writ petitioners being ineligible under the Rules of 2011 have neither any right nor locus for treating “one-time relaxation” granted by State Cabinet on

29.01.2011 to be “a perpetual relaxation” so as to render New Rules of 2011 as redundant, nugatory and otiose ; and sixthly, the judgment in the case of Saroj Kumar (supra) was distinguishable and the matter was not an adjudication on merits {in relation to the issue as to whether petitioners therein could seek relaxation as of right without compliance of Rule 18 and fulfilment of preconditions prescribed therein and whether the one-time relaxation granted by the State Cabinet on 29.01.2011, which was notified on 8/15.02.2011 could be sought to be converted/ treated as perpetual or indefinite relaxation for filling future vacancies and that too when, earlier selection process initiated for 125 posts of PETs {63 direct recruitment and 62 batch-wise recruitment on the basis of one time relaxation had come to an end - 76 - [2026:HHC:3308-DB] and there was “no declaration of law” by this Court or by the Honble Supreme Court {upon dismissal of SLP by non-speaking order}, which did not constitute a binding precedent and these material facts escaped the notice of Learned Single Judge, and therefore, the benefit of judgment in the case of Saroj Kumar (supra) wherein, petitioners were not eligible cannot be directed to be extended to the Respondents-writ petitioners and other similar aspirants, who are also ineligible so as to confer benefits to them dehors the Statutory Rules for post of PETs of 10.01.2011 {at relevant time} is impermissible; and seventhly, even after culmination of selection process for filling 125 posts of PETs in the year 2011-2012, the Respondents -writ petitioners and similar other do not have any right to seek appointment against unfilled or future vacancies nor can the writ court pass directions to grant relaxation and to consider the Respondents-writ petitioners for appointment against future vacancies by giving a complete go-bye to the Statutory Rules dated 10.01.2011 holding the field and eighthly, no person or aspirant can compel the Government to - 77 - [2026:HHC:3308-DB] fill all or any of the vacant posts, unless the Statutory Rules expressly provided it and once the Statutory Rules did not expressly mandated the government to fill all or any of the vacant posts of PETs at specified frequencies-time lines therefore, Impugned directions mandating government to grant relaxation and then to consider and appoint the Respondents- writ petitioners as PETs against vacant posts was erroneous in law {as discussed above} and was not tenable ; and ninthly, the Respondents-writ petitioners being otherwise ineligible under New Rules notified on 10.01.2011 could not be directed to be appointed against future vacancies, which shall result in filling future vacancies from ineligibles and that too under the Old Rules, despite the fact that the Old Rules stood repealed and when, vacancies were are to be filled as per the Rules in force on the date of commencement of selection process i.e. the Rules notified on 10.01.2011 ; and tenthly, permitting the Respondents-writ petitioners to be considered and to be appointed against vacancies available even under Rules of 2011 shall amount to making ineligibles - 78 - [2026:HHC:3308-DB] (i.e. Respondents-writ petitioners) to compete with eligibles, amounts to treating “unequals as equal” which shall be total derogation of the core principles of Articles 14 and 16 of the Constitution of India; and eleventhly, even relaxation cannot be claimed as of right and such relaxation lies within the domain of State Government subject to fulfillment of preconditions contained in Rule 18 of the Statutory Rules of 2011 for post of PET ; and twelfthly, once the Respondents-writ petitioners have failed to question New Rules for post of Physical Education Teachers dated 10.01.2011 and have not laid any challenge to “one time relaxation” granted by State Cabinet on

29.01.2011 as notified on 15.02.2011, then silence and waiver, disentitles for any relief; and lastly, a combined reading of the Statutory Rules of 2011 and the NCTE Regulations of 2014 for the post of Physical Education Teachers leaves no room for doubt that minimum educational qualifications for post is Certificate/Diploma in Physical Education of duration not less than two years (or its equivalent) the Respondents-writ petitioners and others - 79 - [2026:HHC:3308-DB] do not possess these qualifications therefore, they being ineligible have neither any locus nor any right for consideration/appointment as PETs dehors the statutory Rules/Regulations and thus the Impugned Judgement directing the State Authorities-Appellants to grant relaxation and to consider and appoint them as Physical Education Teachers against the future vacancies, without initiating the selection process for unfilled posts cannot pass the test of judicial scrutiny and is accordingly interdicted. In above backdrop, the Impugned Judgement dated 19.07.2022 passed by Learned Single Judge, ignoring the above aspects, relating compliances {based on the Statutory Rules, Regulations and the mandate of Law} is an infirmity. In these circumstances, the Impugned Judgement cannot pass the test of judicial scrutiny and is interdicted by this Court. DIRECTIONS:

22. In view of aforesaid discussion and reasons recorded hereinabove, Letters Patent Appeal(s) filed by the State Authorities are allowed and the - 80 - [2026:HHC:3308-DB] connected writ petitions {CWP’s and CWPOA’s} are dismissed, in the following terms: (i). Letters Patent Appeal No 194 of 2023, State of Himachal Pradesh and others versus Yog Raj and LPA Nos.11, 12, 13, 14, 15, 16, 17 and 18 of 2025, are allowed; (ii). Writ Petition i.e. CWPOA No.5740 of 2020, 5663 of 2022, 6475 of 2022, 6476 of 2022, CWP Nos. 1756, 1759, 1809, 1897, 2821 of 2023, are dismissed ; (iii). Impugned Judgement dated 19.07.2022 passed by Learned Single Judge in Yog Raj versus State of Himachal Pradesh, in Lead Case and connected cases quashed and set aside; (iv). Claim of writ petitioners for relaxation with prayer for appointment against future vacancies is disapproved, being dehors the Recruitment and Promotion Rules dated

10.01.2011 [Annexure A-1] and dehors NCTE Regulations dated 12.11.2014; (v) Parties to bear respective costs. In aforesaid terms, instant appeals and writ petitions along with all pending application(s), if any shall stand disposed of. (G.S. Sandhawalia) Chief Justice Judge January 09, 2026 [himani/tm] (Ranjan Sharma)