JUDGMENT : Narinder Thakur, Honble Vice Chairman:- In this application under Section 19 of the Administrative Tribunals, Act 1985 the applicants have claimed the following reliefs: “(i) Declare the impugned instructions issued by the respondent State dated 7.11.2001 and now Recruitment and Promotion Rules framed by the respondent State for the post of Assistant Engineers Civil and in the Himachal Pradesh Public Works Department vide notification dated 30.5.2002 whereby in column ten word POST has been introduced in place of word VACANCY as it existed in old Recruitment and Promotion Rules of 1995 and further where in column 11 Roster as been prepared by the giving point to Diploma holders Junior Engineers despite the fact that there is no separate category of diploma holders Junior Engineers for the purpose of promotion to the post of Assistant Engineer Civil as they are part and parcel of category (i) in column 11 and where it has been stated that after applying roster till representation for all categories in achieved the vacancy will be filled from the category which vacates it ignoring the well settled law of the land that w here there are more than one source of recruitment even by way of promotion, the persons so recruited on recruitment loose their birth marks and hence percentage meant for different sources are to be applied to vacancy accruing and not posts, as arbitrary, discriminatory, illegal against the judgments of the Honble Supreme Court ultra viresx and hence unconstitutional being violative of Article 14 of the Constitution of India and quash the same. (ii) Direct the respondent State to prepare Recruitment and Promotion Rules for the post of Assistant Engineer (Civil) on the same lines as the old Recruitment and Promotion Rules dated 19.4.1995 with further direction to the respondent state not to substitute word POST with the Word VACANCY in column 10 of the model Performa of Recruitment and Promotion Rules and further prepare roster category wise from which promotion is made keeping in view that the promotion is to be made to a Selection post. (iii) Declare any promotion made on the basis of impugned Recruitment and Promotion Rules dated 30.5.2002 for the post of Assistant Engineer (Civil) during the pendency of the present application as bad in law and being non est." 2. (iii) Declare any promotion made on the basis of impugned Recruitment and Promotion Rules dated 30.5.2002 for the post of Assistant Engineer (Civil) during the pendency of the present application as bad in law and being non est." 2. That the applications in present application are Junior Engineer (Civil) who possessed diploma in Civil Engineering at the time of their initial recruitment. In para 6 sub para (a) they have given the details relating to their joining and date of acquiring AMIE qualification which may be reproduced at this stage for ready reference:- Name Date of joining Date of acquiring AMIE Qualification Ram Sarup Kalia 13.10.1986 8.4.1994 Verinder Guleria 12.9.1986 6.10.1991 Ravider Kumar Sharrfia 9.2.1987 18.9.1998 Ravi Dutt Sharma 16.2.1987 26.3.2001 Pardeep Kumar 4.2.1987 23.3.1992 Shashi Kant Sharma 17.5.1988 30.9.1999 Yash Pal Vashist 12.12.1988 6.10.1994 Har Gobind Kaushal 23.11.1989 18.9.1998 Verinder Kumar Dhiman 21.12.1989 13.11.1991 Ashok Kumar Sharma 23.11.1989 28.3.1992 Kishore Kumar Sharma 9.5.1988 4.10.1989 Chuni Lai Sharma 11.1988 14.3.1997 Balbir Singh thakur 12.7.1991 20.9.1996 Ashok Kumar Bhupal 4.12.1989 8.4.1994 Jitinder Dutt 17.11.1989 October, 2002 Hardeep Singh 31.8.1992 5.4.1993 Vijay Kumar Verma 22.2.1990 20.9.1996 Vineet Sharma 17.6.1991 22.3.2000 P.P. Singh 16.5.1998 5.4.1993 Ajay Kumar 11.5.1988 25.3.1990 Manohar Lai 14.7.1993 March, 2002 3. The controversy in the present Original Application hovers around two points i.e. substitution of "WORD" "VACANCY1 by word "Post". Firstly through instructions dated 7.11.2001 and thereafter by amendment in R&P Rules vide notification dated 30.5.2002 interpretation of provisions in column 11 of the R&P Rules wherein the Word Junior Engineer (Civil) does not make any distinction amongst the diploma holders JES (Junior Engineers) and other JEs for the purpose of promotion to the post of AEs (Assistant Engineers). 4. To appreciate the point in issue few facts deserve to be noted carefully. The 21 applicants herein were initially recruited as JE (Civil) through State Public Service Commission on the basis of diploma in Civil Engineering. During service they acquired further qualifications of AMEs on different dates. Next promotional post is of AE (Civil) and about 309 posts exists for this posts. Applicants have more than seven years of service to their credit 5. The R&P rules framed on 19.4.1995 (A-3) prescribed induction 30% by direct recruitment and 70 by promotion. During service they acquired further qualifications of AMEs on different dates. Next promotional post is of AE (Civil) and about 309 posts exists for this posts. Applicants have more than seven years of service to their credit 5. The R&P rules framed on 19.4.1995 (A-3) prescribed induction 30% by direct recruitment and 70 by promotion. 70% promotional posts are further to be filled in the following manner- (a) From amongst JEs (Civil) with 7 years service or unqualified JEs with 15 years service (45%). (b) JE (Civil) who acquire AMIE or equivalent during service with three years service (10%). (c) JE (Civil) with degree in Civil Engineering or its equivalent at the time of appointment as a JE (Civil) with three years service (10%). (d) Draughtsman Cadre who fulfill the conditions stated in R&P Rules (5%). 6. The contention raised with regard to first controversy is that column 10 provided that the percentage prescribed to be filled in by various mode was to be applied on the vacancies. The rationale behind applying percentage on vacancies and not posts is this that the recruitment by way of promotion from amongst different categories of promotees depending on qualification is not reservation for any category. It is averred that the respondent department on wrong interpretation of law, has substituted the word "Vacancy" by the word "Post" without any base or rational. As such this amendment is bad in law. 7. The other contention is that the respondent department has started process by giving points to diploma holder JEs despite the fact that there is no separate category of diploma holders for the purpose of promotion as they are part and parcel of category (i) in column 11. i.e., JE (Civil) and where it has been stated that after applying roster till representation or all the categories is achieved the vacancy will be filed up from the category which vacates it are arbitrary, discriminatory, illegal and ultra vires. 8. The contention of the applicants have come to be countered by the respondents department as well as newly impleaded private respondents. As per the respondent department, initially R&P Rules to the post of JE provided for direct recruitment on the basis of minimum educational qualification as diploma. The Graduate were not interested and not coming forward for recruitment as JEs because they are eligible for direct recruitment for Assistant Engineers. As per the respondent department, initially R&P Rules to the post of JE provided for direct recruitment on the basis of minimum educational qualification as diploma. The Graduate were not interested and not coming forward for recruitment as JEs because they are eligible for direct recruitment for Assistant Engineers. However, later on the Graduates also stated competing for JEs due to un-employment problem. Some of the diploma holder JEs also acquired AMIE qualification while in service. In order to give initiative to AMIE JEs quota of 10 % was provided for promotion to the post of AEs from amongst the AMIEs JEs. However, since for promotion against 10 % quota, the department was following the principle counting entire service of JE irrespective of the date when the diploma holder JE acquired AMIE qualification, the Graduate JEs were put to a disadvantageous position in as such they were being pushed down in the seniority by AMIE JEs who had longer length of service as a diploma holder and acquired qualification at the later stage while serving as a JE. The department amended the R&P Rules inn 1982/1983 to the effect that the service experience for promotion to the post of AE would be counted from the date of acquisition of qualification of AMIE. This rule was challenged by degree holder JEs and this Tribunal vide judgment delivered in 91/92 quashed the requirement of acquiring experience after passing the AMIE qualification and also granting the benefit form the date of passing. Consequently, the said rule was amended from the initial date of framing of said rule in order to bring the same in conformity to the judgment of this Tribunal. Thereafter, in order to sort out the dispute between AMIE JEs and the degree holder JEs the department prescribed separate quota of 10% each for promotion to the post AE. The cadre strength of JE in PWD is about 1,200 out of which about 100 JEs only are graduates/AMIE. 9. It is further averred that the diploma holder JEs are getting promotion at the fag end of their career, while following the principles of applicability of quota to vacancies, the post falling vacant in the cadre of JEs on account of retirement of diploma holder JEs used to be distributed on each occasion amongst the different categories eligible for recruitment/promotion to the post of Assistant Engineer. As a result of this, in practice the diploma holder JEs were getting very few opportunities of promotion despite their being quota prescribed for them in order to give them adequate opportunities of promotion. Faced with this position, the department devised the new policy and provided that the quota prescribed for recruitment and promotion would apply to the posts instead of vacancies and one .the prescribed percentage in the cadre was achieved as per quota, the vacancies would be filled up thereafter from the same category, which vacated the post. This is stated to be conscious decision of the department keeping in view the background and the factual situation. The result of amended R&P rules is that the degree holder, who were earlier getting more chances of promotion, are now getting chances of promotion strictly as per the quota prescribed for them. However, if the chances of promotion are affected, the same cannot be questioned because it does not affect the conditions of service. On the contrary it is settled law that a modern employer should ensure adequate opportunities of promotion to the employees not a particular category only. The diploma holder JEs are eligible for promotion only upto the level of Executive Engineer. The Graduate Engineer, are considered for promotion upto the level of Engineer-in-Chief. In case of diploma holder JEs, under the previous rules their quota of promotion had practically shrunk to a situation where the diploma holder were not actually getting adequate oppportunit8ies of promotion and majority of them were stagnating in the cadre of JEs, without getting even a single promotion after rendering more than 34 years of service. Very few of them could get a chance or promotion to the level of Executive Engineer. Faced with this situation, the State took a decision to amend the R&P Rules and to apply the quota to the posts instead of vacancies so that the quota prescribed for diploma holder JEs is not rendered illusory. The result of this method of application of quota is that the diploma holder Engineers are being provided adequate avenue of promotion. Keeping in view their cadre strength and the fact that they are being promoted after rendering long period of service as a JE at the fag end of there career. 10. More or less similar stand has been taken by the newly added private respondents in their reply. 11. Keeping in view their cadre strength and the fact that they are being promoted after rendering long period of service as a JE at the fag end of there career. 10. More or less similar stand has been taken by the newly added private respondents in their reply. 11. In the rejoinder filed by the applicants have reiterated the stand taken in the Original Application. 12. Arguments and rival contention of learned counsel for their respective parties were heard and pleading and record gone into carefully. The matter is being finally disposed off with the consent of the parties. 13. Without delving in much details so far as the first contention of the applicants with regard to substitution of Word Vacancy1 by word Post1 is concerned, the same is not appealing to us and we find nothing illegal or unconstitutional in the same. The Rule that once separate quota has been prescribed with a purpose and roster has completed its full circle, the post filling vacant of a particular category is required to be filled up by that particular category, is based on prudence and administrative convenience and cannot be termed as volatile of constitutional provision. The vacancy system bring about unintended in equilibrium in the cadre. 14. The other contention of the applicant is that the interpretation of provisions in column 11 of the R&P Rules, the word Junior Engineer (Civil) does not make any distinction amongst the diploma holder JEs and other JEs for the purpose of promotion to the post of AEs. It is note worthy that the applicants joined the service as a JE diploma holder and during service e enhanced their qualification. Within promotional quota of 45 % is meant for JE (Civil) both qualified and unqualified who fulfill eligibility criteria and not JEs diploma holders of degree holders exclusively. As stated by the respondent department in its reply that in order to give initiative to AMIE JEs a separate quota of 10 % was provided for promotion to the post of AE from amongst AMIE JEs exclusively. This initiative is given to them for their acquiring higher qualifications with a view to give them accelerated promotions. The AMIEs JEs being smaller in number as compared to diploma holder JEs have been given separate quota of 10 % on t he basis of their strength in the total cadre of JEs. This initiative is given to them for their acquiring higher qualifications with a view to give them accelerated promotions. The AMIEs JEs being smaller in number as compared to diploma holder JEs have been given separate quota of 10 % on t he basis of their strength in the total cadre of JEs. As such they cannot allege any discrimination as they have been provided with sufficient promotional avenues not only for next post but also for further promotions. On the other hand the diploma holder JEs being large in number, have been stagnating in the same cadre for a long number of year. As per the details given by the applicants themselves in para 6(a) all the applicants have joined service as Junior Engineers in 1986 or thereafter. During the course of arguments, the counsel for respondent No.3 also produced a chart giving similar facts relating to dates of joining and dates of acquiring AMIE qualification by applicants, which also confirms that the AMIE Junior Engineers have joined service as Junior Engineer in or after 1986. The respondent No.3 has referred to a note in the chart produced on their behalf which reads as follows: “Note:-The last diploma holder promoted among seniority list of Junior Engineers is 355 and 1969 batch is still to be promoted. The service rendered is 33 years." 15. From these undisputed facts it is clear that as of today the applicants do not have any cause of action qua their promotion in 45 % quota under rule 11(1) of the Recruitment and promotion Rules at Annexure-A/2 in as much as it not their case that any diploma holder JE, junior to them has been promoted or is likely to be promoted in near future. Therefore, this plea raised by the applicants is hypothetical and does not need any consideration in the present Original Application. 16. With respect to the second point that the State has wrongly applied the principle of filling of the post on the basis of quota with relation to posts instead of vacancies, the applicants placed reliance on a number of judgments which may be noted at this stage. 17. The leaned counsel have relied on some of the judgments of the Honble Apex Court of India which are as under:- In AIR 1974 SC 1, J&K Vs. 17. The leaned counsel have relied on some of the judgments of the Honble Apex Court of India which are as under:- In AIR 1974 SC 1, J&K Vs. Triloki Nath the question for consideration was that when persons drawn from different sources are integrated into one-class, can they be classified for purposes of further promotion on the basis of their educational qualification? Answering this question, Honble Supreme Court of India held that the persons appointed directly and by promotion, integrated into a common class of Assistant Engineer, could be classified for the purpose of further promotion on the basis of educational qualifications. The power of the State to amend the rules and amendment of the rules in this manner was upheld by the Honble Supreme Court. The observations made by the Honble Apex Court with reference to various judgments in this case that after recruitment to a cadre, the employees lose their birthmarks have to be viewed in the facts of the said case and the Rules which required interpretation by the Court. In the present case by virtue of impugned rule, the category of applicants is getting accelerated promotion, in as much as AMIE Holder Junior Engineers recruited n 1986 are within the zone of consideration for further promotion as compared to diploma holder junior Engineers, out whom even those belonging to 1969 batch are awaiting their promotion. Hence this judgment does not apply to the facts of the present case. 18. In 1989 Supple (1) SCC 116, Rup Chand Adlakha Vs. Delhi Development Authority, Honble Apex Court dealt with a question as to whether in a particular cadre where recruitment is made from two different sources, different conditions, based on difference in educational qualifications can be prescribed conditioning the eligibility for further promotion to a higher cadre in service? Answering this question, the Honble Supreme Court inn para 29 observed:- "If the educational qualification by itself was recognized as conferring eligibility for promotion, then, the superimposition of further conditions such as a particular period of service, selectively, on the Diploma Holders alone to their disadvantage might become discriminatory. Answering this question, the Honble Supreme Court inn para 29 observed:- "If the educational qualification by itself was recognized as conferring eligibility for promotion, then, the superimposition of further conditions such as a particular period of service, selectively, on the Diploma Holders alone to their disadvantage might become discriminatory. This does not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the every eligibility that the candidates must have a particular qualification plus a stipulated quantum of service experience." It was further observed in this para: "Unless the provision is shown to be arbitrary, capricious, or to bring about grossly unfair results, judicial policy should be one of judicial restraint. The prescriptions may be some what cumbersome or produce some hardship in their application in some individual cases, but they cannot be strut down a s unreasonable, capricious, arbitrary." 19. In the result the Honble Apex Court reversed the judgment of the High Court and upheld the rule which was under challenge in the said case. This case again does not help the applicant. 20. In 1999 (5) SCC 171, Subhash Chander Sharma Vs. State of Punjab, the Apex Court upheld the judgment of High Court holding that a temporary junior Engineer who does not possess a degree qualification is not eligible for promotion to t he post of Assistant Engineer, and therefore, the impugned notification fixing the quota for promotion was bad to the extent. The said view was taken keeping in view the specific provisions of the rules in question, which came for consideration in the said case. This judgment is also not relevant for deciding the present case. 21. In 1993 Supp. (2) SCC 194, Shamkjant N Deshpande Vs. Maharastra Industrial Development Corporation, the question for consideration was whether classification could be made among the Executive Engineers on the basis of their educational qualifications for the purpose of promotion to the post of Superintending Engineer, since they belonged to the same cadre of Executive Engineers and did the same word. While deciding this case, Honble Supreme Court held that it is well settled that for the purposes of promotion, a valid classification an be made amongst the members holding the same post on the basis of their qualifications. This proposition is also not in dispute, but not relevant for deciding the present case. 22. While deciding this case, Honble Supreme Court held that it is well settled that for the purposes of promotion, a valid classification an be made amongst the members holding the same post on the basis of their qualifications. This proposition is also not in dispute, but not relevant for deciding the present case. 22. 1982 (3) SCC 191, Paramjit Singh Sandhu Vs. Ram Rakhamal, was heavily relied on by the applicants to support their case. In this case the relevant observations of the Honble Supreme Court are:- "What this court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that quotas should be co-related to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. Promotees who come to the service at an advanced age may retire early and direct recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring to the sources from which the retiring person was recruited it would substantially disturb the quota rule itself. Therefore, while making recruitment quota rule is required to be strictly adhered." 23. If this judgment is read in totality, it would be clear that the Honble Apex Court did not hold that in all eventualities wherever quota is prescribed for recruitment from two sources, it should always be related to the vacancies and, in no situation it can be applied to the posts. The observations that If therefore, in a given year larger number of promotees retire and every time the vacancy is filed in by referring to the source from which the retiring person was recruited it would substantially disturb the quota rule itself Clearly suggest^ that the Honble Apex Court interpreted the rules as they existed in that case, and did not hold that any rule would be invalid for not following this principle. 24. In 1999 (2) SCC 330, State of Punjab Vs. Dr. RN Bhatnagar, the Honble Supreme Court again interpreted the rules applicable to the said case. For holding that the quota was relatable to the vacancies, reliance was placed on case of Paramjit Singh Sandhu (supra). 24. In 1999 (2) SCC 330, State of Punjab Vs. Dr. RN Bhatnagar, the Honble Supreme Court again interpreted the rules applicable to the said case. For holding that the quota was relatable to the vacancies, reliance was placed on case of Paramjit Singh Sandhu (supra). The Honble High Court of Punjab in this case applied the judgment of R.K. Sabharwal for holding that the quota prescribed under the rules would be applicable to the posts and not to the vacancies. However, while interpreting the rules in question, the Honble Apex Court observed in para 11, (at page 345)_that- “Ld. Counsel for the appellant and Ld. Sr. Counsel for the intervenor were right when they contended that if the view which appealed to the Honble High Court is to be accepted, the very rule 9 and the scheme envisaged by it for effecting appointments to the cadre in the ratio of 75 % for promotiees". 25. In this case also the interpretation turned on the language of the rules in question in that case, which are different from the rules in dispute in the case in hand. 26. In 1993 (3) SCC 384, All India Federation of Central Exercise Vs. UOI, again the decision rested on the interpretation of the recruitment rules in the said case. The Honble Supreme Court, in view of the language of the rules of the said case held that the quota would apply to the vacancies and not the posts. In para 9 of this judgment, the Honble Supreme Court observed:- "In our opinion, there is no merit in the contention of the writ petitioners that at all times group A posts must contain a ratio of 6 promotees of Central Excise Superintendents Group B for every 9 group A posts. Such an intention does not follow from para 4 of para 6.1 of the proposals dated 8.6.1989 or the rules as amended in 1998." Again para 10 it was stated:- "We are clear in our mind that, on a fair reading of whole of para 4, that was all the purport of para 4 and it was never intended in the said para 4 that in the promoted category of group A officers, there should always be 6 permotees from Excise Superintendents Group B for every 9 posts in group A." 27. Thus, a survey of the case law cited by counsel for the applicants would reveal that in all these cases, the interpretation turned on the language of rules or instructions governing Recruitment and promotion in the said cases. A rule like the one in issue in the present case never came up for consideration in those cases. 28. It is settle law that a decision is an authority for what it decides and not what can logically be deduced there .from. It is also equally well settled hat a little difference in facts or additional facts may lead to a different conclusion. (See (2003) 5 SCC 568-para 23). 29. The question which requires consideration in this case is that when a quota is prescribed for recruitment and promotion, whether it is always to be applied to the vacancies alone and State does not have power in any situation to frame rules in such way that quota should be made applicable to the posts so as the prescribed percentage is always maintained in the cadre. 30. In 1981 (2) SLR 168, State of Karnataka Vs. Chikka Basavaiah, the Division Bench of Karnataka High Court formulated the question for consideration in para 14, question No.3 whereof reads as follows:- “For applying the ratio between direct recruitment and promotion to a cadre, should the number of promotees and the number of direct recruits who go out of the cadre whether shortly after their appointment to that cadre or after considerable time or who do not join duty after issue of orders of direct recruitment or promotion be included or excluded." While dealing with this question the Honble Court dealt with this question in para 26 which reads as under:- "26. The learned single judge has held in para 15 of the order: "Once a proper classification and recruitment is made, vacancies arising thereafter out of a direct recruit appointed vacating the post should be made available only for a direct recruit and the vacancy arising out of the vacating of the post by a promotee should be made available for a promotee only and it should not be taken up for re-classification." The relevant discussion thereafter is in paras 27 and 29 to 31. These paras are quoted for ready reference hereinafter: - "27. The correctness of the above proposition was questioned by the Appellant. These paras are quoted for ready reference hereinafter: - "27. The correctness of the above proposition was questioned by the Appellant. It was contended for the State that all vacancies arising, whether on account of direct recruits going out of the cadre of Assistants or on account of promotees going out of that cadre, by death, retirement, resignation, further promotion etc., should be filled by applying the quota rule. In other words, it was contended that a vacancy arising out of a direct recruit going out of the cadre need not necessarily be filled by a direct recruit and likewise a vacancy arising out of a paromotee going out of the cadre need not necessarily be filled by a promotee, and that all vacancies in whatever manner they arise, whether on account of direct recruits or promotees going out of the cadre, should be filled by direct recruitment and promotion in the ratio prescribed by the recruitment Rules. 28. xxx xxx xxx 29. Which of the above two methods should be followed in filling vacancies, depends upon the rules governing a cadre. Such rules may provide that a cadre should always consist direct recruits and promotees in a particular ratio. An example of such kind of rule, is found in the Karnataka District Judges Recruitment Rules. Sub-rule (1) of Rule 2 of those Rules reads: “2. Methods of appointment- (1) Appointment to the cadre of District Judges shall be made: (a) by promotion of persons in the Karnataka judicial Service in the cadre immediately below the cadre of District Judges: and (b) by direct recruitment from the Bar "Provided that as nearly as may be 33 1/3 percent of the number of post in the cadre of District Judge shall be filled or reserved to be filled by direct recruitment." 30. Alternatively, the rules governing a cadre may provide that while making recruitment to that cadre, certain ratio should be maintained between direct recruitment and promotion. Where the rules so provide, such ratio between direct recruitment and promotion should be followed in making appointments to fill vacancies in that cadre irrespective of how those vacancies arose-whether on account of direct recruits going out of the cadre or on account of promotees going out the cadre. The relevant part of the Secretariat Recruitment Rules reads: 2. Category of posts, Assistants. 3. The relevant part of the Secretariat Recruitment Rules reads: 2. Category of posts, Assistants. 3. Method of requirement: 50 percent by direct recruitment and 50 percent by promotion form the cadre of Assistants. 4. Minimum qualification and period of probation. 31. Unlike the Karnataka District Judges Recruitment Rules, the Secretariat Recruitment Rules do not provide that as nearly as may be 50 percent of the number of posts in the cadre of Assistants should be filled or reserved to the filled by direct recruitment and 50 percent of appointments should be by direct recruitment and 50 percent, by promotion. These rules do not provide that the vacancies arising out of direct recruits going out of the cadre of Assistants, should be filled by direct recruits only and that the vacancies arising out of promotees going out of that cadre, should be filled by promotees only so as to ensure that the cadre of Assistants always consists of direct recruits and promotees in the ration of 50:50." 31. From a perusal of this judgment it becomes clear that the rules prescribing quota of recruitment to a service can apply the said quota to the vacancies, or posts, depending upon the language of the rules in that case. 32. In a recent judgment reported in 2002 (4) SCC 247, All India Judges Association Vs. UOI Honble Supreme Court in para 29 of the judgment made following pertinent observations:- "One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basis principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate the seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabhrawal case as early as possible." 33. It is clear that if Honble Supreme Court found it reasonable to prescribe quota with relation to posts in judicial services, then if the State of Himachal Pradesh has also made similar rules, the same cannot be impugned merely on the ground that this is tantamount to applying R.K. Sabharwal for framing such rules. The moot point is whether such method is permissible in the facts and circumstances of the present case. 34. The moot point is whether such method is permissible in the facts and circumstances of the present case. 34. On our perusal of these case law, which has been cited by the learned counsel for the applicant it is evident that the observations made by the Honble Apex Court were wholly in different set of facts and Rules involved therein. Whereas, issue in the present case was not even remotely involved in any of these above cased cited by the learned counsel for the applicant. 35. On perusal of column 11 of the R&P Rules, it leave no manner of doubt in out mind that 45% of vacancies meant to be filled up from amongst the JEs (Diploma holder) are to be filled up from JE with diploma holder JEs. This aspect has further been elucidated in the same R&P Rules wherein the points to be filled up from different categories have been clearly stated. Any construction or interpretation contrary to this is against the rule of prudence, unconstitutional and illegal. It is well settled law that the rule making power vest with the executive. The provisions made by the respondents State has been framed under the powers vested in it by Article 309 of the Constitution of India. Unless and until, it is shown to the Court that there has been any discrimination or any arbitrariness in the Rule the Court, ordinarily should not tinker with the rule making powers of the executive. The applicants have failed to show that they are equals in qualifications to the diploma holder JEs. There is nothing unreasonable in the action of respondents State in making separate reservation and classifications on the basis of different educational qualifications within the same cadre for the purpose of further promotion. In view of the forgoing we find no merit in the Original Application and the same is dismissed with no order as to costs. Interim stay granted on 14.5.2003 is hereby vacated.