SHEELA DEVI AND ORS vs STATE OF HP AND ORS

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
High Court of H.P.
CWP No.274 of 2022
Date of decision: 28.10.2026
Sheela Devi and others …..Petitioners
Versus
State of H.P. and another …..Respondents
Coram
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.
The Hon’ble Mr. Justice Yogesh Jaswal, Judge.
1
Whether approved for reporting? Yes
For the Petitioners : Mr. Ashwani Kumar Sharma,
Advocate.
For the Respondents : Mr. Anup Rattan, Advocate General
with Mr. Pushpender Jaswal,
Additional Advocate General.
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, the petitioners have, inter
alia, prayed for the following reliefs:-
“(i) Writ of Certiorari may kindly be issued for the
quashment of R & P Rules, Clause 11 with a further
direction to the respondents authorities for amending the
same to the extent that all promotions from ANM to GNM
under 25% quota prescribed in clause 10 be made on the
basis of seniority or work experience as ANM in the
Department of Ayurveda or in alternate by imparting them
training for nominal period at the expenses of the
Government in Government institutions.
(ii). That the respondents may be directed to provide
promotional avenues to the petitioners on the basis of their
seniority at par with their counterparts working in the
1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
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Department of Health & Family Welfare Department in the
interest of justice and fair play.”
High Court of H.P.
2. The factual matrix involved in this case is in a very
narrow compass. The petitioners before this Court are serving as
Auxiliary Nurse Midwives (ANMs). The next promotion from the post
of General Nursing and Midwifery is to the post of Staff Nurse, the
Recruitment & promotion Rules whereof are appended with the
petition as Annexure P-2. In terms of the said Recruitment &
promotion Rules, the post of Staff Nurse is filled in 40% by way of
direct recruitment, 35% by batch-wise recruitment and 25% by way
of promotion. The promotion to the extent of 25% is to be made from
amongst Auxiliary Nurse Midwives i.e. the post held by the
petitioners subject to their possessing educational qualification
prescribed against Column No. 7(a) of the Recruitment & Promotion
Rules with 03 years regular service or regular combined with
continuous adhoc service, if any, in the grade. In terms of Column
No.7(a) of the Recruitment & Promotion Rules, the minimum
educational qualification required for recruitment against the post of
Staff Nurse is 10+2, preferably with science from a recognized
Board of School Education or University and a fully qualified A-grade
General Nursing and Midwifery or B.Sc. (basis) in nursing from a
recognized institute. Besides this, candidate also has to be
registered with Himachal Pradesh Nursing Council or any other
recognized Nursing Council.
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3. The grievance of the petitioners is that because they do
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not possess the minimum qualification mentioned in Column
No.7(a), this renders them ineligible to be considered for promotion
against the post of Staff Nurse, and it is in this backdrop that they
have approached this Court praying for the reliefs already
enumerated by us hereinabove.
4. Learned counsel for the petitioners argued that Clause
11 of the Recruit and Promotion Rules is ultra vires for the reasons
that it does not takes into consideration the considerable experience
gained by the petitioners while working against the post of Auxiliary
Nurse Midwives for promotion to the post of Staff Nurse. He argued
that simply because the petitioners do not possess the minimum
qualification which is required for direct recruitment against the post
of Staff Nurse, this does not mean that they are not capable to man
the post of Staff Nurse because the experience gained by them
while serving against the post of Auxiliary Nurse Midwives,
substitutes the non-possessing of qualification by them.
5. Learned counsel referred to the rejoinder filed by the
petitioners and submitted that in certain Departments like Public
Works Department, there exist post of Assistant Engineer which is
filled in both by way of direct recruitment and promotion. He
submitted that in order to be eligible for direct recruitment to the post
of Assistant Engineer, the minimum qualification is graduation, yet
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for the purposes of promotion, even a diploma holder is eligible. He
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submitted that similarly in terms of Annexure E-2 appended with the
petition for the post of Male Health Supervisor in the Department of
Health and Family Welfare Department, which is a post filled in
100% by way of promotion, as far as the feeder category of male
Multipurpose Health Workers is concerned, there is no condition
attached therewith that such persons working in the feeder category
should possess a qualification higher than the one which was
required for their appointment against the post of Multipurpose
Health Worker. On this count, learned counsel submitted that as
Clause 11 of the Recruitment & promotion Rules was bad in law, it
be quashed and set-aside. Learned counsel also placed reliance on
the judgment of the Hon’ble Supreme Court in B.N Saxena versus
New Delhi Municipal Committee and others, (1990) 4 SCC 205 ,
to substantiate this point.
6. On the other hand, learned Advocate General argued
that there was no merit in this petition. He submitted that it was
settled law that the framing of the Recruitment & promotion Rules,
including carrying out any amendment therein or mentioning the
conditions or the educational qualifications therein was the domain
of the employer and the Courts are not to interfere with the said
domain of the employer until and unless the Courts find that the
Rules infringe the constitutional parameters.
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7. Learned Advocate General submitted that in the present
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case, the post of Staff Nurse is not filled in 100% by way of
promotion. Said post is filled in 40% by way of direct recruitment and
35% by way of batch-wise recruitment and in order to be eligible for
direct recruitment, the minimum qualification besides 10+2,
preferably with science background, is a qualified A-grade General
Nursing and Midwifery or B.Sc (basis) in nursing from a recognized
institute. Learned Advocate General submitted that the department
in its wisdom has provided 25% quota of promotion to Auxiliary
Nurse Midwives but subject to their possessing educational
qualification which is otherwise required for direct recruitment to the
post of Staff Nurse. He submitted that this condition is neither
arbitrary nor discriminatory, nor it violates Article 14 of the
Constitution of India. Learned Advocate General submitted that in
the light of the duties which a Staff Nurse has to perform, the
qualification which is prescribed for direct recruitment is the essential
qualification which is required to be possessed by an incumbent who
seeks to be recruited against the post of Staff Nurse, be it by way of
direct recruitment or promotion. He submitted that in the light of the
nature of the duties of the post, the possession of experience
against the post of Auxiliary Nurse Midwives is not sufficient and
therefore, while giving 25% promotional quota to Auxiliary Nurse
Midwives, it is mentioned in the Recruitment and Promotion Rules
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that in order to be eligible to gain promotion, the Auxiliary Nurse
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Midwives must possess the educational qualifications which are
otherwise to be possessed for direct recruitment.
8. In support of this contention, learned Advocate General
has referred to the judgment of the Hon’ble Supreme Court in P.U.
Joshi and others versus Accountant General, Ahmedabad and
others, (2003) 2 SCC 632 & Chandigarh Administration through
the Director Public Instructions (Colleges), Chandigarh versus
Usha Kheterpal Waie and other, (2011) 9 SCC 645 .
9. We have heard learned counsel for the parties and we
have also carefully gone through the pleadings as well as the
documents.
10. The moot issue which this Court has to answer is as to
whether the condition contained in the impugned Recruitment &
Promotion Rules for the post of Staff Nurse that in order to be
eligible for promotion to the said post, the candidate from the feeder
category i.e. Auxiliary Nurse Midwives must possess the educational
qualification which is prescribed for direct recruitment, is sustainable
in law or is an arbitrary condition or not. It is not in dispute that the
petitioners before this Court were recruited against the post of
Auxiliary Nurse Midwives on the strength of the qualification which
was possessed by them for promotion for appointment to the post of
Auxiliary Nurse Midwives. As far as the post of Staff Nurse is
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concerned, the Department of Ayurveda has framed the Recruitment
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& Promotion Rules, Annexure P-2, in terms whereof, in order to be
eligible for appointment to the post in issue by way of direct
recruitment either through a process initiated by Recruiting Agency
or on batch-wise basis, the minimum and essential qualification
required is 10+2, preferably with science and A-grade General
Nursing and Midwifery or B.Sc (basis) in nursing from a recognized
institute. There is no challenge in the petition to the educational
qualification so prescribed for Direct Recruitment.
11. It is not in dispute that this qualification which has been
prescribed as the minimum qualification in order to be eligible for
appointment against the post of Staff Nurse is completely different
from the qualification which is possessed by the petitioners on the
basis whereof they were recruited against the post of Auxiliary Nurse
Midwives.
12. In our considered view, the petitioners cannot challenge
the condition which is there in the Recruitment & Promotion Rules
vis-a-vis 25% promotion quota simply because they do not possess
the qualification which is necessary for promotion to the post of Staff
Nurse. The contention of the learned counsel for the petitioners that
the experience which has been gained by them as Auxiliary Nurse
Midwives is good enough to substitute the minimum educational
qualification prescribed for recruitment against the post of Staff
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Nurse, does not convince us. This is for the reason that it it has not
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been substantiated before us by placing any material on record that
the duties of Staff Nurse are akin to that of Auxiliary Nurse Midwives.
Otherwise also, in the light of the fact that the post of Staff Nurse is a
promotional post from the post of Auxiliary Nurse Midwives, this
itself is suggestive of the fact that this being a superior post, it
requires something more, be it by way of educational qualification or
otherwise, as compared to the post of Auxiliary Nurse Midwives.
13. Coming to the analogy which has been given by the
learned counsel for the petitioner to demonstrate discrimination i.e.
the Recruitment & Promotion Rules which relate to the post of
Assistant Engineer, according to us, simply because the Public
Works Department or any other Department wherein there are posts
of Assistant Engineer deem it proper to reserve certain promotional
quota in favour of diploma holders or those who are not possessing
the qualification which is necessary for direct recruitment against the
post, this does not mean that every other Department in the State of
Himachal Pradesh has to follow the same analogy only. In our
considered view, every Department has the right to fix the
educational qualifications necessary for appointment against a post
be it by way of direct recruitment or promotion, depending upon the
nature and duties of that particular post. Similarly, as far as the
analogy given by the petitioners of the post of Male Health
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Supervisor is concerned, the same also according to us does not
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come to the rescue of the petitioner for the reason that a perusal of
the rules demonstrates that the post of Male Health Supervisor is to
be filled in 100% by way of promotion and it is not as if this post is to
be filled in by way of direct recruitment as also batch-wise basis as
is the case vis-a-vis the post of Staff Nurse in the Ayurveda
Department. Because the Health and Family Welfare Department
does not deem it necessary that there should be any additional
qualification for male Multipurpose Health Worker to be eligible for
promotion to the post of Male Health Supervisor, this does not mean
that on that analogy the Ayurveda Department can also not have a
condition that Auxiliary Nurse Midwives for promotion to the post of
Staff Nurse should possess the minimum educational qualification
which is necessary for direct recruitment to the post of Staff Nurse.
14. Now coming to the judgments relied upon by the
learned counsel for the parties, firstly, we refer to the judgment relied
upon by the learned counsel for the petitioner. In B.N Saxena
versus New Delhi Municipal Committee and others, (1990) 4
SCC 205 , Hon'ble Supreme Court was dealing with the issue of the
petitioner therein who was appointed as a Junior Draftsman and
subsequently re-designated as Senior Draftsman and was claiming
promotion to the post of Head Draftsman in the New Delhi Municipal
Committee and had approached the Hon'ble Supreme Court in the
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light of the fact that his prayer stood rejected by the learned Courts
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though including the Hon'ble Delhi High Court.
15. In the backdrop of the factual matrix which existed in the
case, the Hon'ble Supreme Court was pleased to give relief to the
petitioner, but it was after taking into consideration the Rule position
as it existed in New Delhi Municipal Committee. For ready reference,
we are quoting paras 4 to 7 of the said judgment:-
“4. For the first time, the NDMC by a policy decision dated
February 2, 1973 redesignated Junior Draftsmen in the scale
of Rs. 110-200 as Senior Draftsmen in the scale of Rs. 150-
240. The Resolution, in effect, validated the recruitment of
the petitioner and others similarly situated.
5. By the same Resolution, the NDMC has revised the
qualifications for the post of Head Draftsman as under:
“Head Draftsman:- From Senior Draftsman on seniority-
cum- selection basis. However, the minimum
qualification should be a Diploma with a minimum of 3
years service as Senior Draftsman in the grade of Rs.
250-400 or a total of 6 years service as Senior and
Junior Draftsman. The question of outside recruitment
docs not arise.”
6. The question is whether the petitioner possesses the
prescribed qualification. The revised rules provide alternate
qualifications for the post of Head Draftsman. The first part of
the rule prescribes a diploma with a minimum of three years
service as Senior Draftsman in the scale of Rs. 250-400. The
second limb of the revised rule refers to the service rendered
by the candidate. It provides for six years of service as
Senior and Junior Draftsman. The first part of the rule is
almost similar to the qualification prescribed prior to the
amended rules. The old rule provided:
“Matric with Diploma/certificate in Draftsmanship from a
recognised institution with 3 years experience in
preparation of Engineering Drawings in an Electric
supply undertaking or an engineering manufacturing
organisation”
7. The second limb of the rule was evidently to benefit all
those persons who have gained sufficient experience as
Senior and Junior Draftsmen without possessing any
qualification. Experience gained for a considerable length of
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time is itself a qualification {See the observation in State of
U.P. and Ors. v. J.P. Chaurasia and Ors.(1989) 1 SCC 121} .
It would be unreasonable to hold that in addition to this
considerable experience, one must also have the diploma
qualification prescribed under the first part. It could not have
been the intention of the rule making authority that persons
who were designated as Senior Draftsmen without any
Diploma qualification should acquire such diploma
qualification for further promotion. Such a view would not be
consistent and coherent with the revised rule and its object.
We have no doubt that the second limb of the revised rule is
independent of the first. The High Court seems to have erred
in this aspect of the matter.”
High Court of H.P.
16. Thus from the perusal of the judgment of the Hon'ble
Supreme Court we find that relief was given to the petitioner therein
in the peculiar facts of the case taking into consideration the earlier
Rules which existed for promotion to the post of Head Draftsman as
well as the educational qualifications contained therein and the
subsequent amendment which was carried out and also the second
limb of the revised rules which finds mention in the above quoted
paras of the judgment of the Hon'ble Supreme Court. Therefore in
our considered view, as the judgment of the Hon'ble Supreme Court
was in the light of the Rule position as it existed therein and it was
on the interpretation of the Rules that relief was granted to the
petitioner therein, the said judgment is of no assistance to the
petitioners.
17. On the other hand, Hon'ble Supreme Court of India in
P.U. Joshi and others versus Accountant General, Ahmedabad
and others, (2003) 2 SCC 632 has been pleased to hold in para-10
as under:-
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“10. We have carefully considered the submissions made on
behalf of both parties. Questions relating to the constitution,
pattern, nomenclature of posts, cadres, categories, their
creation/abolition, prescription of qualifications and other
conditions of service including avenues of promotions and
criteria to be fulfilled for such promotions pertain to the field
of Policy and within the exclusive discretion and jurisdiction of
the State, subject, of course, to the limitations or restrictions
envisaged in the Constitution of India and it is not for the
Statutory Tribunals, at any rate, to direct the Government to
have a particular method of recruitment or eligibility criteria or
avenues of promotion or impose itself by substituting its
views for that of the State. Similarly, it is well open and within
the competency of the State to change the rules relating to a
service and alter or amend and vary by addition/subtraction
the qualifications, eligibility criteria and other conditions of
service including avenues of promotion, from time to time, as
the administrative exigencies may need or necessitate.
Likewise, the State by appropriate rules is entitled to
amalgamate departments or bifurcate departments into more
and constitute different categories of posts or cadres by
undertaking further classification, bifurcation or amalgamation
as well as reconstitute and restructure the pattern and
cadres/categories of service, as may be required from time to
time by abolishing existing cadres/posts and creating new
cadres/posts. There is no right in any employee of the State
to claim that rules governing conditions of his service should
be forever the same as the one when he entered service for
all purposes and except for ensuring or safeguarding rights or
benefits already earned, acquired or accrued at a particular
point of time, a Government servant has no right to challenge
the authority of the State to amend, alter and bring into force
new rules relating to even an existing service.”
High Court of H.P.
18. Hon'ble Supreme Court thereafter in Chandigarh
Administration through the Director Public Instructions
(Colleges), Chandigarh versus Usha Kheterpal Waie and other,
(2011) 9 SCC 645 has been pleased to reiterate the legal position
enunciated by it in P.U. Joshi’s case as under:-
“22. It is now well settled that it is for the rule-making
authority or the appointing authority to prescribe the mode of
selection and minimum qualification for any recruitment.
Courts and Tribunals can neither prescribe the qualifications
nor entrench upon the power of the concerned authority so
long as the qualifications prescribed by the employer is
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reasonably relevant and has a rational nexus with the
functions and duties attached to the post and are not violative
of any provision of Constitution, statute and Rules. [See J.
Rangaswamy vs. Government of Andhra Pradesh - 1990 (1)
SCC 288 and P.U. Joshi vs. Accountant General - 2003 (2)
SCC 632]. In the absence of any rules, under Article 309 or
Statute, the appellant had the power to appoint under its
general power of administration and prescribe such eligibility
criteria as it is considered to be necessary and reasonable.
Therefore, it cannot be said that the prescription of PhD is
unreasonable.”
High Court of H.P.
19. Thus it is apparent and evident from the said two
judgments of the Hon'ble Supreme Court that it is for the rule-
making Authority or the Appointing Authority to prescribe the Board
of Selection and minimum qualification for any recruitment and the
Courts and Tribunals can neither prescribe the qualification nor
entrench upon the power of the authority concerned so long as the
qualifications prescribed by the employer is reasonably relevant and
has a rational nexus with the functions and duties attached to the
post and are not violative of any provisions of the constitution.
20. On part of the petitioners, there is no challenge to the
essential qualifications, which stand prescribed for direct recruitment
to the post of Staff Nurse, which means that even the petitioners do
not have any qualms that as far as the post of Staff Nurse is
concerned, the same indeed has to be manned by person who
possesses the qualification as is prescribed in Column 7 (a) of the
Recruitment & Promotion Rules. That being so, the act of the
Department of providing in the Recruitment and Promotion Rules to
the post of Staff Nurse that in order to be eligible for promotion to the
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said post, the candidate from the feeder categories must possess
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the minimum qualification prescribed in Column No.7(a) of the
Recruitment and Promotion Rules, cannot be said to be arbitrary,
discriminatory or unconstitutional.
21. Therefore, in the light of the above discussion as we do
not find any merit in the present petition, the same is dismissed. At
this stage learned counsel for the petitioners submits that the
rejection of the petition should not come in the way of the petitioners
in otherwise approaching the Authorities in terms of Clause-18 of the
Recruitment & Promotion Rules. Observed accordingly. Pending
miscellaneous application(s), if any, shall also stand disposed of.
(Ajay Mohan Goel)
Judge
(Yogesh Jaswal)
Judge
th
28 October, 2026.
( yogesh )
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