JUDGMENT : Ajay Mohan Goel, J. By way of this writ petition, the petitioner has prayed for the following reliefs: “(i) That the impugned notifications dated 01.10.2010, Annexure P-4 and P-4/A, promoting respondent No. 2 to the post of Section Officer w.e.f. 01.04.2008 on notional basis and 01.10.2010 on regular basis may be quashed and set aside. (ii) That the respondent No. 1 may be directed to consider the petitioner for promotion to the post of Section Officer with effect from 01.10.2010, with all consequential benefits. (iii) Any other relief deemed fit and proper in the facts and circumstances of the case may also be granted to the petitioner. (iv) The cost of the petition may also be awarded.” 2. Case of the petitioner is that he was initially appointed as Clerk in Himachal Pradesh Vidhan Sabha Secretariat on 15.10.1981 and was placed in the pay scale of Senior Clerk w.e.f. 23.04.1983. Thereafter, the petitioner was promoted to the post of Senior Assistant vide order dated 06.06.1989 and was placed against the post of Superintendent (Ex-cadre) vide order dated 06.05.2000. Himachal Pradesh Vidhan Subha Secretariat (Recruitment & Conditions of Service) Amendment Rules, 2008 were notified vide notification dated 04.12.2008. As per these Rules, there were eight posts of Section Officers, which are non-selection posts and were to be filled up on the basis of seniority subject to rejection of unfit. The mode of promotion prescribed in the Rules was as under: 9. Section Officer (Rs.7220-11660) Non-selection 100% by promotion NA By promotion from amongst Superintendent Grade-II with three years regular service or regular combined with continuous adhoc service rendered, if any, in the grade; failing which by promotion from amongst the Superintendent Grade-II with nine years regular service or regular combined with continuous adhoc service as Superintendent Grade-II/Senior Assistant/Senior Translator combined including two years service as Superintendent Grade-II failing both by promotion from amongst the Superintendent Grade-II/Sr. Assistants and Sr. Translators with 11 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade. For the purpose of promotion, a combined seniority of Superintendent Grade-II/Supdt. (Ex-cadre)/Senior Assistants and Translators based on the length of service without disturbing their cadre wise seniority shall be prepared. 3. Assistants and Sr. Translators with 11 years regular service or regular combined with continuous adhoc service rendered, if any, in the grade. For the purpose of promotion, a combined seniority of Superintendent Grade-II/Supdt. (Ex-cadre)/Senior Assistants and Translators based on the length of service without disturbing their cadre wise seniority shall be prepared. 3. According to the petitioner, vide order dated 17.01.2009, a seniority list of Superintendent (Ex-cadre) and Assistants in the respondent-Vidhan Sabha, as on 01.01.2009, was circulated, in which the petitioner was at Sr. No. 4, whereas respondent No. 2 was reflected at Sr. No. 6. Vide order dated 01.07.2009, petitioner was promoted to the post of Superintendent Grade-II with immediate effect as a stop gap arrangement against a leave vacancy and he joined as such on the same day. Thereafter, vide order dated 01.10.2010, respondent No. 2 was promoted as Section Officer on notional basis w.e.f. 01.04.2008 and the said notional promotion of respondent No. 2 was regularized and he was promoted on regular basis as Section Officer w.e.f. 01.10.2010. It is further the case of the petitioner that vide communication No. PER(AP)-CB(12)-1/98 Government of Himachal Pradesh, Department of Personnel (AP-III), dated 20th August, 1998 (Annexure P-5), instructions were issued for maintaining post based reservation roster on the subject: “Reservation roster- Post based-Implementation of Supreme Court Judgment in the case of R.K. Sabharwal Vs. State of Punjab and enhancement of reservation in services for Other Backward Classes.” 4. According to the petitioner, as on 12.12.1997, the following persons stood adjusted against cadre strength in the initial recruitment: Cadre strength Initial recruitment Incumbent recruited Dated of appointment Whether utilized by SC/ST/OBC or UR Remarks 1. UR T.K. Vashisht 14.11.91 UR Promoted on 1.1.1998 (regular) 2. UR R.L. Jamwal 19.12.91 UR Promoted on 1.1.1998 (regular 1.7.98) 3. UR Goverdhan Singh 1.11.94 UR Promoted on 22.2.99 (regular 1.3.2000) 4. UR V.C. Thapliyal 1.11.94 UR Promoted on 1.3.2000 (regular 1.1.2001) 5. UR Kesar Dass 1.11.94 SC Promoted 13.6.2000 6. UR Chuni Lal 27.6.96 ST Promoted on 3.3.2005 7. SC Hashmat Rai 1.9.96 UR Expired. 5. UR R.L. Jamwal 19.12.91 UR Promoted on 1.1.1998 (regular 1.7.98) 3. UR Goverdhan Singh 1.11.94 UR Promoted on 22.2.99 (regular 1.3.2000) 4. UR V.C. Thapliyal 1.11.94 UR Promoted on 1.3.2000 (regular 1.1.2001) 5. UR Kesar Dass 1.11.94 SC Promoted 13.6.2000 6. UR Chuni Lal 27.6.96 ST Promoted on 3.3.2005 7. SC Hashmat Rai 1.9.96 UR Expired. 5. It is further the case of the petitioner that on 12.12.1997, against the cadre strength of 7, 6 posts were to be manned by Unreserved category candidate and one post was to be manned by SC category candidate as per 13 point roster and as on the effective date, factually, out of the 7 incumbents who were holding the post of Section Officer, 5 belonged to Un-Reserved category, 1 belonged to SC category and 1 belonged to ST category. The case of the petitioner is that in fact when DPC was held wherein respondent No. 2 was considered for promotion to the post of Section Officer, the DPC was held by assuming that the post in question was a selection post, whereas as per the Recruitment and Promotion Rules, post in question was a non-selection post and it appears that DPC was mis-informed about the nature of the post, as it was not brought to the notice of DPC that in the initial cadre strength of 7, sixth point stood utilized by a ST category candidate and in the first 13 point roster cycle including initial recruitment/ replacement points, the point of ST category stood exhausted and the said point would have had subsequently been available only to ST category at replacement point 13 in the second cycle roster. However, ignoring this important aspect of the matter, respondent No. 2 stood promoted against ST category candidate without appreciating that the roster point against which he was promoted, was to be filled in by an Un-reserved category candidate. 6. Respondent No. 1 in its reply has justified its stand by stating that respondent No. 1 has framed the Himachal Pradesh Vidhan Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1974, which were last amended on 4th December, 2008 and in the Second Schedule of the Rules at Sr. No. 9 was the mode prescribed for promotion to the post of Section Officer. No. 9 was the mode prescribed for promotion to the post of Section Officer. As per respondent No. 1, instructions issued by the Government vide letter No. PER (AP)-C-B(12) 1/98, dated 20th August, 1998 were made applicable in the Himachal Pradesh Vidhan Sabha Secretariat and roster for direct recruitments and promotions of various cadres was being maintained and recruitment and promotions were being made accordingly. It was mentioned in the reply that pursuant to instructions dated 20th August, 1998 and keeping in view the principles laid therein, a 13 point reservation roster to the post of Section Officer was being maintained reflecting therein the position on 12.12.1997 onwards, in which, the incumbents who were eligible at the relevant point of time, were placed seriatumwise vis-à-vis the category to which they belonged and thereafter subsequent promotions of Section Officers were made from time to time strictly in accordance with 13 point reservation roster and in rotation after enhancement of cadre strength of Section Officer upto 8 posts, the 6th post which was meant for Scheduled Tribe category horizontally was filled in accordingly. Relevant extract of para 9 of the reply so filed by respondent No. 1 is quoted hereinbelow: “9………….That pursuant to the instructions issued by the Government vide letter No. PER (AP)-C-B(12-1/98, dated 20.08.1998 and keeping in view the principles laid down thereunder, thirteen point reservation Roster to the post of Section Officer was maintained showing the position 12.12.97 onwards in which the incumbents who were in position at that point of time were placed seriatumwise by including the category to which they belonged. Thereafter subsequent promotions of Section Officers were made from time to time strictly according to the thirteen point reservation Roster and in rotation after enhancement of cadre strength of Section Officer upto eight posts the sixth point which was meant to Scheduled Tribe category horizontally was filled in accordingly. In the above referred to instructions dated 20.8.98 under para-7 it has specifically be laid down that excess, if any would be adjusted through future appointments and the existing appointments would not be disturbed, as such the point No. 6 which was occupied by the ST incumbent in view of his position in the old roster/instructions by placing him in the new Roster against unreserved point would be adjusted in future by appointing the unreserved eligible incumbent on becoming this unreserved point available. It is also clarified that during April 2000 the cadre strength of cadre of Section Officer rose to 8 from 7; and, accordingly the roster was correspondingly expanded in consonance with the contents of para-9 of the Explanatory/Notes at Annexure ‘A’ to the instructions with regard to the implementation of the roster. It may be submitted here that Shri Chunni Lal was placed against the Scheduled Tribe category as per the instructions of 1998. Now by virtue of the roster Annexure P-5, Roster point 6 goes to the Scheduled Tribe Category and Shri Chander Prakash Negi was promoted against the same. It may be submitted here that the post of Section Officer is a ‘non-selection’ post as per provisions of the Himachal Pradesh Vidhan Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1974 amended upto 4th December, 2008, but due to clerical mistake which occurred during the process of cut and paste this was shown as selection post, however to fill up the same by promotion, the process of filling up ‘Non-selection’ post has been adopted.” On the said basis, respondent No. 1 has justified its stand of promoting the private respondent over and above the petitioner. 7. Respondent No. 2 in its reply has also maintained that there is no violation of 13 point roster or instructions issued by the Government dated 20.08.1998, adopted by respondent No. 1, and in fact respondent No. 2 fulfilled the eligibility criteria and was found fit for promotion against 13 point reservation roster and in fact he was rightly promoted to the post of Section Officer. At the time of arguments, in the alternative, it was submitted on behalf of respondent No. 2 that in case this Court comes to the conclusion that the promotion conferred upon respondent No. 2 is not sustainable, then keeping in view the fact that said respondent already stands superannuated, this Court may consider grant of relief in favour of the petitioner without disturbing the promotion so conferred upon respondent No. 2. 8. I have heard the learned counsel for the parties and have also gone through the pleadings of the case. 9. Before proceeding further, it is relevant to mention here that pursuant to the judgment passed by the Hon’ble Supreme Court in R.K. Sabharwal and others Vs. 8. I have heard the learned counsel for the parties and have also gone through the pleadings of the case. 9. Before proceeding further, it is relevant to mention here that pursuant to the judgment passed by the Hon’ble Supreme Court in R.K. Sabharwal and others Vs. State of Punjab and others, (1995) 2 Supreme Court Cases 745, the Department of Personnel, Government of Himachal Pradesh issued instructions dated 20th August, 1998 on the following subject: “Subject: Reservation roster-Post based-Implementation of Supreme Court Judgment in the case of R.K. Sabharwal Vs. State of Punjab and enhancement of reservation in services for Other Backward Classes.” 10. Clause 5(e) of these instructions deals with small cadres up to 13 posts, which is quoted hereinbelow: “5(e) In small cadres of upto 13 posts, the method prescribed for preparation of rosters does not permit reservation to be made for all the three categories. In such cases, the concerned authorities may consider grouping of posts in different cadres in accordance with the existing instructions on the subject. In the event it is not possible to resort to such grouping, the enclosed rosters (Appendices to Annexure-B, C & D) for cadre strength upto 13 posts may be followed. The principles of operating these rosters are explained in the explanatory notes.” 11. Clauses 6 and 7 of the said instructions provide as under: “6. At the stage of initial operation of a roster, it will be necessary to adjust the existing appointments in the roster. This will also help in identifying the excesses, shortages, if any, in the respective categories in the cadre. This may be done starting from the earliest appointment and making an appropriate remark-“utilized by SC/ST/OBC/Gen. etc.”, as the case may be against each point in the rosters as explained in the explanatory notes appended to the model rosters. In making these adjustments, appointments of candidates belonging to SCs/STs/OBCs which were made on merit (and not due to reservation) are not to be counted towards reservation so far as direct recruitment is concerned. In other words, they are to be treated as general category appointments. 7. Excess, if any, would be adjusted through future appointments and the existing appointments would not be disturbed.” Clause 9 of the Explanatory Notes provides as under: “9. Whenever there is any increase or decrease in the cadre strength, the roster shall be correspondingly expanded or contracted. In other words, they are to be treated as general category appointments. 7. Excess, if any, would be adjusted through future appointments and the existing appointments would not be disturbed.” Clause 9 of the Explanatory Notes provides as under: “9. Whenever there is any increase or decrease in the cadre strength, the roster shall be correspondingly expanded or contracted. The same will also apply whenever there is a change in recruitment rules which affects the proportion of posts to be filled by a particular mode of recruitment.” 12. A perusal of said instructions demonstrates that it was mentioned therein that at the point of initial operation of the roster, it will be necessary to determine the actual representation of the incumbents belonging to different categories in a cadre vis-à-vis the points earmarked for each category, i.e. SC/ST/OBC and General in the roster by way of plotting the appointments made against each point of roster starting with the earliest appointee. It was further mentioned therein that if an earlier appointee in the cadre happens to be a candidate belonging to Scheduled Castes, against point No. 1 of the roster, the remark “utilized by SC” shall be entered. If the next appointee is a general category candidate, the remark “utilized by general category” shall be made against point No. 2 and so on and so forth till all appointments are adjusted in the respective rosters. It is further clarified therein that in making these adjustments, SC/ST/OBC candidates on merit, in direct recruitment, shall be treated as general category candidates and after completing the adjustment as indicated therein, a tally should be made to determine the actual percentages of representation of appointees belonging to different categories in the cadre and if there was excess representation of any of the reserved categories and if the same exceeded 50%, the same shall be adjusted in future recruitments and vacancies arising from retirement etc. of candidates belonging to such categories shall be filled by appointment of candidates belonging to the categories to which the relevant roster points against which the excesses occur belong. The relevant appendix to Annexure-“D” is quoted hereinbelow: “APPENDIX TO ANNEXURE-“D” Model Roster for promotion for cadre strength up to 13 posts REPLACEMENT NO. of candidates belonging to such categories shall be filled by appointment of candidates belonging to the categories to which the relevant roster points against which the excesses occur belong. The relevant appendix to Annexure-“D” is quoted hereinbelow: “APPENDIX TO ANNEXURE-“D” Model Roster for promotion for cadre strength up to 13 posts REPLACEMENT NO. Cadre Strength Initial Recruitment 1 st 2 nd 3 rd 4 th 5 th 6 th 7 th 8 th 9 th 10 th 11 th 12 th 13 th 1. UR UR UR UR UR UR SC UR UR UR UR UR UR S 2. UR UR UR UR UR SC UR UR UR UR UR UR ST 3. UR UR UR UR SC UR UR UR UR UR UR ST 4. UR UR UR SC UR UR UR UR UR UR ST 5. UR UR SC UR UR UR UR UR UR ST 6. UR SC UR UR UR UR UR UR ST 7. SC UR UR UR UR UR UR ST 8. UR UR UR UR UR UR ST 9. UR UR UR UR UR ST 10. UR UR UR UR ST 11. UR UR UR ST 12. UR UR ST 13. UR ST” 13. Now this Court will apply the said model roster provided in Appendix to Annexure “D” in order to ascertain as to whether the promotion conferred by respondent No. 1 to respondent No. 2 was in accordance with said roster so prepared under instructions dated 20th August, 1998 or not. It has come on record that the cadre strength of Section Officer in respondent No. 1 up to March 2000 was 7. The incumbents who were working as on the date when these instructions were implemented by respondent No. 1 were: 1. Sh. T.K. Vashishat General Category. 2. Sh. R.L. Jamwal General Category. 3. Sh. Goverdhan Singh General Category. 4. Sh. V.C. Thapliyal General Category. 5. Sh. Kesar Dass Scheduled Caste Category. 6. Sh. Chunni Lal Scheduled Tribe Category. 7. Sh. Hashmat Rai Scheduled Caste Category. These details are available in para 9 of the petition, which have not been disputed by the respondents. 14. A perusal of roster of promotion for cadre strength up to 13 point, which is Appendix to Annexure “D” demonstrates that in a cadre of 7 posts, the post for a Scheduled Tribe candidate is available at 7th replacement point. These details are available in para 9 of the petition, which have not been disputed by the respondents. 14. A perusal of roster of promotion for cadre strength up to 13 point, which is Appendix to Annexure “D” demonstrates that in a cadre of 7 posts, the post for a Scheduled Tribe candidate is available at 7th replacement point. Similarly, in a cadre strength of 8, the said post by way of promotion becomes available to Scheduled Tribe category at replacement point No. 6. 15. Now, it is evident and apparent from the reply which has been filed by respondent No. 1 that when the said 13 point roster was applied by respondent-Himachal Pradesh Vidhan Sabha, Shri Chunni LaL, who belonged to Scheduled Tribe category was adjusted by them at 6th vertical point of the said roster, which point otherwise belongs to Unreserved category. It is further the stand of said respondent that as per Clause 7 of 1998 instructions, since excess appointment/promotion, if any, was to be adjusted through future appointments and existing appointments were not to be disturbed, therefore, the said respondent rightly adjusted Shri Chunni Lal at 6th vertical point and when a replacement point in its turn became available for Scheduled Tribe category candidate, the same was rightly offered to the private respondent. 16. In my considered view, respondent No. 1 has gravely erred in doing so. What has been done by respondent No. 1 is neither the letter nor spirit of 1998 instructions. In fact, a perusal of these instructions demonstrate that because it was the 7th replacement point which was available for a Scheduled Tribe category as per the model roster for cadre strength up to 7 posts, Shri Chunni Lal ought to have been adjusted by them against the 7th replacement point, that is the 7th horizontal point in the cadre strength of 7 and not against Sr. No. 6 against the vertical cadre strength, as reflected in the roster. Clause 7 of the instructions has also been totally misunderstood by respondent No. 1, because Clause-7 does not permit adjustment/plotting to be done in the roster as has been done by respondent No. 1, but intent of Clause 7 is that in case there is excess representation to a particular category under 13 point roster, then without disturbing the said incumbent, adjustments have to be made in future appointments. 17. 17. In my considered view, gist of Clause 7 is that in case in a cadre of 7 posts, there happened to be two Scheduled Caste candidates and two Scheduled Tribe candidates available in its initial application, then simply because one post is available to Scheduled Caste category as well as Scheduled Tribe category in the 13 point roster, this does not means that the second initial appointee has to be disturbed. He has to be maintained in addition to the first candidate of the said category, however, when while applying ‘L’ shape roster the turn of this category comes, no further promotions are to be offered to the same and the vacancy which has now become available has to be so adjusted. 18. In this view of the matter, it is but obvious that respondent No. 1 has erred in offering respondent No. 2 replacement point meant for Scheduled Tribe category in the 13 point roster without appreciating that as the said replacement point stood consumed by Shri Chunni Lal, respondent No. 2 could not have had been offered the said roster point till this roster point was vacated by Shri Chunni Lal and the same again became available by applying 13 point roster in the mode and manner as is prescribed in the 1998 instructions in favour of Scheduled Tribe category. Therefore, the promotion of respondent No. 2 is in violation of the instructions dated 20th August, 1998. Not only this, even the point which has been erroneously reflected by respondent No. 1 as having been consumed by Shri Chunni Lal, has to be in fact taken to be consumed by a candidate belonging to Un-reserved category candidate. In addition, the roster point against which respondent No. 1 has promoted respondent No. 2, ought to have been offered to General Category candidate as per the Recruitment and Promotion Rules in force for filling up the vacancy in issue. In addition, the roster point against which respondent No. 1 has promoted respondent No. 2, ought to have been offered to General Category candidate as per the Recruitment and Promotion Rules in force for filling up the vacancy in issue. It has not been disputed during the course of arguments that had this roster point been issued to a General Category candidate, then it was the turn of the petitioner for having been considered against the post in issue and as the post in issue was a non-selection post and as there was nothing against the petitioner from which it could be gathered that he was unfit for selection, he had all the chances of being promoted to the post in issue. 19. Besides this, as is evident from the discussion held hereinabove, here is a case where the right to be considered for promotion has been arbitrarily denied by respondent No. 1 to the petitioner. It is settled law that though right to promotion is not a fundamental right, but right to be considered for promotion is a fundamental right. As the petitioner was eligible to be considered for promotion to the post of Section Officer at the time when the Departmental Promotion Committee wrongly considered and promoted respondent No. 2 against the said post, in such circumstances, there is in fact a breach of fundamental right of the petitioner to be considered for promotion. 20. Accordingly, this writ petition is allowed. Though the notifications dated 01.10.2010, Annexure P-4 and Annexure P-4/A are not sustainable in the eyes of law, however, the same are not being quashed, as this Court is not setting aside the promotion which was conferred upon the private respondent. However, as this Court has come to the conclusion that the promotion conferred upon the private respondent was not as per law, therefore, the respondents are directed to consider and promote the petitioner to the post of Section Officer w.e.f. the date the private respondent was promoted to the said post, subject to the petitioner being found fit for the said promotion keeping in view the fact that the post in issue is a non-selection post and not a selection post. It is further directed that if the petitioner is not found otherwise unfit for the said promotion, he shall be given all consequential benefits which were conferred upon respondent No. 2 pursuant to his promotion as Section Officer, however, said consequential benefits will be deemed only and actual benefits shall be conferred upon the petitioner only from the date of his superannuation. No order as to costs.