JUDGMENT : Deepak Gupta, J. (Oral) By means of this petition, the petitioners, out of which petitioner No.1 is an Association of Architects and petitioners No. 2 to 4 are degree holders Architect, pray as follows:- 1. That the amendment brought about in the Recruitment and Promotion Rules for filling up the posts of Architect (Gazetted Class-I) whereby 30% of the posts were earmarked for diploma holders, is ultra vires since it takes away and affects the rights of the decree holders to be promoted against these posts. 2. That the private respondent was appointed under the amended rules whereas the posts which had fallen vacant prior to the amendment of the rules were still lying vacant and as per the judgement delivered by the learned Single Judge of this Court in CWP(T) No. 16145 of 2008 were required to be filled in under the old rules. 3. That the private respondent having been promoted to the post against the quota meant for diploma holders a direction should be issued that she has been appointed against the roster meant for the said post. 2. As far as the first grievance of the petitioners is concerned, the undisputed facts are that prior to the amendment of the Rules in the year 2007 the posts of Architect Class-I were to be filled in only from amongst degree holder Assistant Architects having eight years experience. By the amendment brought about on 22.11.2007 the rules were amended and 30% of the posts meant for Architect Class-I were required to be filled up from amongst Assistant Architect possessing a diploma in Architecture with eight years service. 70% of the posts were to be filled up from degree holders Assistant Architect. 3. The main challenge of the petitioners is that whereas under the old rules they alone were eligible, now by amendment of the rules the diploma holders have also become eligible and therefore their right to get promoted has been affected. There can be no manner of doubt that the petitioners are adversely affected by the promotion. As per the unamended rules it was the petitioners alone who could have been promoted and the diploma holders had no chance of being promoted to the post of Architect. There can be no manner of doubt that the petitioners are adversely affected by the promotion. As per the unamended rules it was the petitioners alone who could have been promoted and the diploma holders had no chance of being promoted to the post of Architect. By making the amendment the State has given a promotional avenue to the diploma holder Assistant Architects, which will affect the chances of promotion of the petitioners and other degree holder Architects. 4. The question is whether the State has the right to amend the rules and if the State has such right can these rules whereby chances of promotion of the petitioners are affected said to be ultra vires. 5. A similar question was considered by the Apex Court in P.U. Joshi and others v. Accountant General, Ahmedabad and others, (2003) 2 SCC 632, wherein it held as follows:- "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 is 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 the existing cadres/posts and creating new cadres/posts. 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 the 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." 6. In P. Murugesan and others v. State of Tamil Nadu and others (1993) 2 SCC 340 dealing with a similar question the Supreme Court held as under:- "16 Secondly, as explained hereinbefore there would be no justification in principle for holding that the rule-making authority has only two options namely either to bar the diploma holders altogether from promotion or to allow them equal opportunity with the graduate engineers in the matter of promotion. It must be remembered that the power of rule making under the proviso to Article 309 has been held to be legislative in character (Vadera). If so, the test is whether such a restrictive view is permissible vis-à-vis a legislature. If not, it is equally impermissible in the case of the rule making authority under the proviso to Article 309. The only test that such a rule has to pass is that of Articles 14 and 16 and to that aspect we may turn now." 7. In R.L. Bansal and others v. Union of India and others, AIR 1993 SC 978 , the Supreme Court held as follows:- "Rules made under the proviso to Article 309 of the Constitution being legislative in character cannot be struck down merely because the Court thinks that they are unreasonable. They can be struck down only on the grounds upon which a legislative measure can be struck down." 8. They can be struck down only on the grounds upon which a legislative measure can be struck down." 8. From a perusal of the various judgements of the Apex Court the position which clearly emerges is that the State can lay down a policy with regard to promotion. The State also has the power to amend the policy even if it be to the detriment of a certain class of employees. The only valid ground to challenge such a policy is that the same violates the mandate of Articles 14 and 16 of the Constitution of India. 9. In the present case the State has decided to give a promotional avenue to the diploma holders. No doubt, it affects the promotional chances of the degree holders but that would not mean that the rules are ultra vires or arbitrary. It is for the employer to decide what qualification to lay down for any particular post. Once the employer lays down qualification it is bound to follow the same till they are amended in accordance with the law. The State not only has the power to lay down the qualification criteria at the initial stage but can also change the qualification criteria from time to time as per the requirements of the State. Merely because the chances of promotion of a particular category will be affected will not make the rules ultra vires or arbitrary. It is well settled that a person only has a right to be considered for promotion and the right of promotion is not a fundamental right vested to him. There can be numerous instances where the employer after having framed the rules comes to the conclusion that some category of employees who were not being promoted also deserves to be considered for promotion to a certain level. If the employer does so, then the Court cannot and should not set-aside these amendments only because it feels that the amendments are unreasonable or harsh to one side. The only ground on which these statutory rules which have the force of law can be struck down are that they are ultra vires or the rules have been framed for mala fide reasons. We do not find any such circumstance in the present case. Therefore, the challenge to the rules is negatived. 10. The next question is with regard to the adhoc promotion of respondent No.3. We do not find any such circumstance in the present case. Therefore, the challenge to the rules is negatived. 10. The next question is with regard to the adhoc promotion of respondent No.3. It would be pertinent to mention that some degree holder Architects had filed another original application before the erstwhile Himachal Pradesh State Administrative Tribunal. Since the Tribunal stands abolished vide notification issued by the Central government, the case was transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, and registered as CWP(T) No. 16145 of 2008. The question before the Court was whether the posts which had fallen vacant prior to the amendment of the rules were to be filled up in accordance with the unamended rules or as per the amended rules. The learned Single Judge directed the State to fill up the posts of Architect which were lying vacant on 10.09.2007 prior to the amendment of the Rules as per the unamended Rules of the year 1997. 11. As per the facts, which have been placed on record, four posts were vacant under the unamended rules. Out of these four posts, two posts were filled in as per the old Rules on April, 2008 when Sarvshri Rajiv Sharma and L.M. Mastana were promoted as Architects under the old rules. Thus two posts were vacant under the old rules. In the meantime one architect Shri Rajiv Sharma was sent on secondment/deputation to the Municipal Corporation, Shimla. We are not going into the question whether when an employee is sent on secondment basis the post should be filled up or not. The fact is that as a result of Mr. Rajiv Sharma being sent to the Municipal Corporation one more post had fallen vacant. At this stage none of the petitioners had rendered eight years service as required under the rules. On the other hand the private respondent had rendered more than nine years service and was eligible to be promoted. No doubt, the learned Single Judge had directed that the posts which had fallen vacant prior to 10.9.2007 should be filled in as per the unamended rules but by a quirk of fate there was no person eligible to be appointed under the old rules. Therefore, the Government took a decision to promote respondent No.3 on adhoc basis under the amended rules. Therefore, the Government took a decision to promote respondent No.3 on adhoc basis under the amended rules. The private respondent being a diploma holder was not eligible under the old rules. She admittedly, however, was senior to petitioners 2 to 4 as Assistant Architect. This situation was not an ordinary situation. Normally, the posts which had fallen vacant earlier should have been filled up but those posts could not be filled in because there was no person eligible under the old rules. Therefore, the action of the respondent in filling up the posts by promoting respondent No.3 who was eligible as per the new rules cannot be said to be illegal or against the spirit of the order of the learned Single Judge of this Court. 12. We may note that from the record we have seen that one of the factors which weighed with the respondent-State was that respondent No.3 had only two months to retire when she was promoted. Faced with this situation, the learned counsel for the petitioners urges that it is being proposed by the State that since the appointment of respondent No.3 was only on adhoc basis the roster point against which she was appointed will not to be treated to have been filled up from the diploma holder candidates. We may clarify that whether respondent No.3 was appointed on adhoc basis or otherwise once she had taken benefit of pay of the post for all purposes including pensionary benefits this post shall be deemed to have been filled in from amongst diploma holders and the roster shall be maintained accordingly. 13. In view of the above discussion the writ petition is disposed of. The main contentions are rejected but it is clarified that the appointment of respondent No.3 shall be deemed to be against the roster point meant for diploma holders. No order as to costs.