JUDGMENT Dharam Chand Chaudhary, J. 1. Petitioners working as Fishermen in the Department of Fisheries, Government of Himachal Pradesh, aggrieved by providing matriculation as minimum qualification for promotion to the post of Fisheries Field Assistants in Recruitment and Promotion Rules Annexure A-2 from their category have initially filed this petition in the erstwhile HP State Administrative Tribunal and on its abolition stands transferred to this Court. 2. By means of this petition, the petitioners have claimed the following relief:- "That the impugned Rules Annexure A-2, promotion order dated 3.7.2007 Annexure A-5 and order dated 8.7.2007 rejecting the representation of the applicants may be quashed and set aside and respondents may be permitted to promote the applicants from the date their juniors were promoted with all consequential benefits in the interest of justice and fair play." 3. Annexure A-2, which has been sought to be quashed and set aside, is the Recruitment and Promotion Rules meant for filling up the posts of Fisheries Field Assistants. These rules have repealed the Himachal Pradesh Fisheries Department’s Fisheries Field Assistant Class-IV (Non-Gazetted) Recruitment and Promotion Rules, 1986. The Rules Annexure A-2, called as the Himachal Pradesh Fisheries Department, Fisheries Field Assistant Class-IV (Non-Gazetted), Recruitment and Promotion Rules, 2006, came into force from the date of its publication in HP Rajpatra, i.e. 30.12.2006. The post of Fisheries Field Assistant is Class-IV and non-selection. As per these Rules, the appointment to the service can be made from two different sources, i.e. 662/3% by direct recruitment and 331/3% by promotion from amongst the Fishermen having matriculation as qualification. 4. As noticed at the outset, the petitioners are aggrieved by making provision of matriculation as qualification for appointment to the post of Fisheries Field Assistant by way of promotion from their category, therefore, it is deemed appropriate to make reference to the relevant provisions in the Rules which govern the procedure to be followed for appointment to the post of Fisheries Field Assistant by way of promotion. Rule 11 reads as follows:- 11. In case of recruitment by promotion, deputation, transfer, grade from which promotion/ deputation transfer is to be made By promotion from amongst the Fishermen who are matriculate and also possess 5 years regular service or regular combined with continuous ad hoc service rendered, if any, in the grade. Rule 11 reads as follows:- 11. In case of recruitment by promotion, deputation, transfer, grade from which promotion/ deputation transfer is to be made By promotion from amongst the Fishermen who are matriculate and also possess 5 years regular service or regular combined with continuous ad hoc service rendered, if any, in the grade. For filling up the posts, following roster shall be followed: 1st post: By promotion from Fisherman, 2nd post: By Direct recruitment. 3rd post: by direct recruitment. The roster will be rotated after every 3rd post till the representation to all the categories is achieved by the given percentage and thereafter, vacancy is to be filled up amongst the categories which vacate the post. (1) In all cases of promotion, the continuous adhoc vacancies in Himachal State Technical Services)Rules, 1985 and having been given the benefit of seniority thereunder (2) Similarly in all cases of confirmation continuous adhoc service rendered in the feeder post, if any, prior to the regular appointment against such posts shall be taken into account towards the length of service, if the adhoc appointment/ promotion had been made after proper selection in accordance with the R&P rules. Provided that inter-se seniority as a result of confirmation after taking into account adhoc service rendered as referred to above shall remain unchanged. Provided further that where a person becomes ineligible to be considered for promotion on account of the requirement of the preceding proviso, the person(s) junior to him shall also be deemed to be ineligible for consideration for such promotion. Explanation - The last proviso shall not render the junior incumbents ineligible for consideration for promotion if the senior ineligible person happened to be ex-servicemen recruited under the provisions of Rule-3 of Demobilized Armed Forces Personnel (Reservations of vacancies in Himachal State Non- Technical Services) Rules, 1972 and having been given the benefit of seniority there under or recruited under the provision of Rule-3 of Ex-servicemen (Reservations of Contract appointee so selected under these Rules will not have any right to claim regularization or permanent absorption in Govt. job. (ii) Emolument Payable: The Fisheries Field Assistant appointed on contract basis will be paid consolidated contractual amount @ Rs. 4230/- (initial of pay scale + dearness pay) per month. An amount of Rs. job. (ii) Emolument Payable: The Fisheries Field Assistant appointed on contract basis will be paid consolidated contractual amount @ Rs. 4230/- (initial of pay scale + dearness pay) per month. An amount of Rs. 100/- as per amount increase in emoluments for the second and third years respectively will be allowed if contract is extended beyond one year. (iii) Appointing/ Disciplinary Authority: Director-cum- Warden of Fisheries, H.P. will be the appointing and disciplinary authority. (iv) Selection Process: Selection for appointment to the post in the case of Contract Appointment recruitment will be made on the basis of viva-voce test or if considered necessary or expedient by a written test or practical test the standard/syllabus etc. of which will be determined by the Selection Committee prescribed under these Rules. (v) Committee for Selection of contractual Appointments: As may be constituted by the Government from time to time. 5. The grouse of the petitioners in a nutshell is that in the un-amended 1986 Rules no qualification was prescribed for making appointment to the post of Fisheries Field Assistant from amongst Class-IV employees on the establishment of the Department. They have pressed into service office order dated 27.9.2004 Annexure A-9 in order to draw support qua this part of their case. As per their further case, the information Annexure A-8 (Colly.) was received under the Right to Information Act, wherein it is revealed that the nature of duty of Field Assistant/Fisherman is identical. Therefore, according to them, when the Fishermen and Fisheries Field Assistants are discharging the same and similar duties, prescribing matriculation as minimum qualification for promotion to the post of Fisheries Field Assistant is arbitrary and violative of Article 14 of the Constitution of India. 6. Challenge is also to the order dated 3.7.2007 (Annexure A-5), whereby persons junior to them in the cadre of fishermen have been promoted as Fisheries Field Assistants by following the amended Rules (Annexure A-2). They further canvassed that rejection of representations Annexure A-3, A-4 and A-6, which were made by one of them, i.e. Parkash Chand, petitioner No. 2, vide order dated 31.7.2007 (Annexure A-7), on the ground that matriculation is essential qualification and the representationist being not matriculate could have not been promoted, is also illegal. 7. They further canvassed that rejection of representations Annexure A-3, A-4 and A-6, which were made by one of them, i.e. Parkash Chand, petitioner No. 2, vide order dated 31.7.2007 (Annexure A-7), on the ground that matriculation is essential qualification and the representationist being not matriculate could have not been promoted, is also illegal. 7. In response to the case set out by the petitioners in the petition, the stand of the respondent-State is that the posts of Fisheries Field Assistants and fishermen are in different pay scale, i.e. the post of Fisheries Field Assistant carries the pay scale of Rs. 2800-4400, whereas that of fishermen Rs. 2700-4260. In 1986 Rules, the feeder category for promotion to the post of Fisheries Field Assistant class-IV officials working as Peon, Chowkidar, Cleaner, Chowkidar-cum-Helper, Sweeper and Field-man on the establishment of the Department. The category of fisherman was not the feeder category for promotion to the post of Fisheries Field Assistant. Further, that in the amended Rules (Annexure A-2) the category of fisherman has been included in the feeder category for promotion to the post of Fisheries Field Assistant to the extent of 331/3% from amongst matriculate fisherman having five years service in the cadre. Matriculation is said to be prescribed as qualification for promotion to the post of Fisheries Field Assistant because illiterate/under Matric officials are unable to grasp technical skill of fisheries, conversation and other fisheries activities viz-a-viz extending extension programmes, departmental schemes etc. to the public. 8. It is in this backdrop, the parties on both sides have set forth claims/counter claims during the course of arguments. 9. The only issue engages our attention is that prescribing matriculation as qualification for promotion to the post of Fisheries Field Assistant in the Rules by the respondent-State is an arbitrary exercise of powers or violative of Article 14 of the Constitution of India. The law on the point is no more res-integra, as the apex Court in P.U. Joshi and others vs. Accountant General, Ahmedabad and others, (2003) 2 SCC 632, has held as under:- "10. The law on the point is no more res-integra, as the apex Court in P.U. Joshi and others vs. Accountant General, Ahmedabad and others, (2003) 2 SCC 632, has held as under:- "10. 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/substruction 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." 10. The apex Court again in State of J&K vs. Shiv Ram Sharma and others, (1999) 3 SCC 653 , has held as under:- "6. The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The apex Court again in State of J&K vs. Shiv Ram Sharma and others, (1999) 3 SCC 653 , has held as under:- "6. The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service the requirement of passing the matriculation was not needed and while they are in service such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them. In Roshan Lal Tandon vs. Union of India, (1968) 1 SCR 185 : ( AIR 1967 SC 1889 ), it was held by this Court that once appointed an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to respondents. The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as rules provide for conditions of service making an avenue for promotion to higher grades the observations made in T.R. Kothandaraman's case (1994 AIR SCW 4367) (supra) stand fulfilled. In that view of the matter, we do not think the High Court was justified in allowing the writ petitions filed by the respondents." 11. The apex Court in V.K. Sood vs. Secretary, Civil and Aviation and others, 1993 Supp (3) SCC 9, has also held as under:- "6. Thus it would be clear that, in the exercise of the rule making power, the president or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. Thus it would be clear that, in the exercise of the rule making power, the president or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being Statutory, cannot he impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. The rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission." 12. Similar is the view of the matter taken by the apex Court in Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh vs. Usha Kheterpal Waie and others, (2011) 9 SCC 645 , which reads 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 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 Ph.D. is unreasonable." 13. In State of Gujarat and others vs. Arvind Kumar T. Tiwari and another, (2012) 9 SCC 545 , a case where the petitioner was not eligible for want of qualification for being considered to the post in question, the apex Court has held that such person has no enforceable or legal right to approach the Court for any relief. In State of Gujarat and others vs. Arvind Kumar T. Tiwari and another, (2012) 9 SCC 545 , a case where the petitioner was not eligible for want of qualification for being considered to the post in question, the apex Court has held that such person has no enforceable or legal right to approach the Court for any relief. The apex Court has discussed the power to relax the Rules also in this judgment and has held as under:- "10. The appointing authority is competent to fix a higher score for selection, than the one required to be attained for mere eligibility, but by way of its natural corollary, it cannot be taken to mean that eligibility/norms fixed by the statute or rules can be relaxed for this purpose to the extent that, the same may be lower than the ones fixed by the statute. In a particular case, where it is so required, relaxation of even educational qualifications may be permissible, provided that the rules empower the authority to relax such eligibility in general, or with regard to an individual case or class of cases of undue hardship. However, the said power should be exercised for justifiable reasons and it must not be exercised arbitrarily, only to favour an individual. The power to relax the recruitment rules or any other rule made by the State Government/Authority is conferred upon the Government/Authority to meet any emergent situation where injustice might have been caused or, is likely to be caused to any person or class of persons or, where the working of the said rules might have become impossible. 11. The courts and tribunal do not have the power to issue direction to make appointment by way of granting relaxation of eligibility or in contravention thereof. In State of M.P. & another vs. Dharam Bir, (1998) 6 SCC 165 , this Court while dealing with a similar issue rejected the plea of humanitarian grounds and held as under:- "The courts as also the tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution." 12. Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution." 12. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be the subject matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the objects sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of fair play, good conscious and equity. Vide – State of J&K vs. Shiv Ram Sharma & other, AIR 1999 SC 2012 and Praveen Singh vs. State of Punjab & other, (2000) 8 SCC 436. 13. In State of Orissa & another vs. Mamta Mohanty, (2011) 3 SCC 436 , this Court has held that any appointment made in contravention of the statutory requirement i.e. eligibility, cannot be approved and once an appointment is bad at its inception, the same cannot be preserved, or protected, merely because a person has been employed for a long time. 14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules is, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegibility and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See: Prit Singh vs. S.K. Mangal & other, 1993 (1) SCC (Supp.) 714 and Pramod Kumar vs. U.P. Secondary Education Services Commission & other, AIR 2008 SC 1817 )." 14. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See: Prit Singh vs. S.K. Mangal & other, 1993 (1) SCC (Supp.) 714 and Pramod Kumar vs. U.P. Secondary Education Services Commission & other, AIR 2008 SC 1817 )." 14. The principles settled in the above precedents amply demonstrate that framing of rules prescribing mode of selection including qualification etc. for a particular post is absolutely within the domain of the executive/rule making authority. The Courts and Tribunals can neither prescribe the qualification nor interfere with the qualification so prescribed by the employer, if it is rational and having nexus with the functions and duties attached to the post or the incumbent is ignored for appointment at the cost of fair play, good conscience and equity. 15. The Courts even cannot direct the competent authority to make appointment in relaxation of rules, of course, the authority competent to relax the rules may do so for justifiable reasons, if it is deemed necessary or expedient to do so. 16. Adverting to the case in hand, in 1986 Rules (Annexure R-1 to the reply filed on behalf of the respondents), the category of the petitioners does not find mention as feeder category for promotion to the post of Fisheries Field Assistant. The feeder category rather is class-IV employees in the rank of Peon, Chowkidar, Cleaner, Chowkidar-cum-Helper, Sweeper and Fieldsmen. In the amended Rules (Annexure A-2) in force there are two different sources of recruitment to the post of Fisheries Field Assistant, i.e. direct recruitment and by way of promotion from the category of petitioners, i.e. fisherman. As per the Rules, matriculation is essential qualification for promotion to the post in question. The petitioners admittedly are not matriculate. They have, therefore, rightly been ignored for promotion to the post in question being not qualified. 17. The law laid down and discussed hereinabove makes it crystal clear that the petitioners being not eligible for promotion to the post of fishermen, have no legal right to approach the Court with a grouse that the rules having been framed to their detrimental are not sustainable for the reason that as per the ratio of the judgments cited supra framing of rules and prescribing qualification for a particular post is within the domain of the executive/rule making authority. The petitioners, therefore, have no legal right to question the promotion of those fishermen eligible and in the zone of consideration as per recruitment and promotion rules framed and circulated vide Annexure A-2. The representations Annexure A-3, A-4 and A-6 made by petitioner No.2 Parkash Chand have also been rightly rejected by the competent authority by a speaking order Annexure A-7. The petitioners, therefore, cannot be said to have any grouse on this score also. 18. Be it stated that in the Rules Annexure A-2, there exists relaxation clause, which reads as follows:- "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 HPPSC relax any of the provisions of these rules with respect to any class or category of persons or posts." 19. We take note of the seniority list (Annexure A-1) of fishermen on the establishment of Fisheries Department as on 31.3.2007, which reveals that as against 40 members of service maximum have matriculation or above as qualification and it is only few of them who are under-matriculate. Maximum of them have been appointed during the period ranging between 1980-2007, i.e. well before the amended Rules (Annexure A-2) came into being. We further take note of the fact that many of them have since retired on attaining the age of superannuation. Therefore before parting, we expect from the competent authority to take into consideration the long service rendered by those under-matriculate fishermen appointed before the Rules Annexure A-2 came into being and grant them one time relaxation, of course strictly in accordance with the principles laid down by the Hon’ble Apex Court in Arvind Kumar T. Tiwari’s case cited supra to save them from stagnation and hardship. 20. This petition, however, fails and the same accordingly dismissed. Pending applications, if any, shall also stand disposed of.