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PETITIONER: VIMAL KUMARI

       Vs.

RESPONDENT: THE STATE OF HARYANA & ORS

DATE OF JUDGMENT:       04/02/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.SAGHIR AHMAD, J.      This appeal  is directed against the judgment and order dated 25.4.1994  of the  High Court  of Punjab  & Haryana by which the  writ  petition  filed  by  respondents  3  and  4 challenging the  promotion of  the present  appellant on the post of Superintendent was allowed.      The appellant  was appointed as Tailoring Instructor in 1983.  On  31.5.1991,  she  was  promoted  to  the  post  of Superintendent. Respondents  5 to  9 were  also promoted  to that post.  Their promotions were challenged by respondent 3 and 4  on the  ground that they being eligible for promotion to  the   post  of  Superintendent  should  also  have  been considered first  and should  have been promoted in place of the appellant  and respondent 5 to 9, as they were Graduated and were, therefore, eligible for such promotion in terms of the Draft Rules, known as "Haryana Social Welfare and Relief Organisation Service Group ‘C’ Rules, 1983."      The High  Court by  the impugned  judgment accepted the claim of respondents 3 and 4 and held that respondents 3 and 4 being  Graduates and  eligible in terms of the Draft Rules ought to  have been  promoted in  place of the appellant and other respondents who were promoted only on ad hoc basis.      Respondents 1  and 2 thereafter considered the claim of respondents 3  and 4  other similarly situated employees for promotion to  the post  of Superintendent  in terms  of  the Draft Rules, as directed by the High Court and promoted Smt. Asha Kiran,  respondent no. 3, to the post of Superintendent and posted  her at  Mahila Ashram,  Karnal, in  place of the appellant  who   was  reverted  to  the  post  of  Tailoring Technician. It  is in  these circumstances  that the present appeal has been filed.      Learned counsel  for the  appellant has  contended that the High  Court was  not justified in relying upon the Draft Rules which  had not  been  enforced  and  consequently  the promotion to  the post  of Superintendent  could  have  been regulated only  on the  basis of  executive instructions  by adopting any  reasonable criteria,  including "seniority" as the basis of such promotion.      The Draft  Rules were  prepared in  1983 and since then

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they have  not been  enforced. It  is, no doubt, open to the Government  to   regulate  the  service  conditions  of  the employees for  whom the  Rules are made, by those Rules even in their  "draft stage" provided there is clear intention on the part  of the  Government to  enforce those  Rules in the near future Recourse to such Draft Rules is permissible only for the  interregnum to  meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be  taken. Such  Draft Rules  cannot be treated to be Rules made  under Article 309 of the Constitution and cannot legally exclude  the operation  of any existing executive or administrative instruction  on the  subjects covered  by the Draft  Rules   nor  can   such  Draft   Rules  exclude   the jurisdiction of  the Government,  or for  that  matter,  any other authority,  including the  appointing authority,  from issuing  the   executive  instructions  for  regulating  the conditions of service of the employees working under them.      In the  instant case,  as pointed  out above, the Draft Rules were  prepared in  1983. They  have been  lying in the nascent state since t hen. In the meantime, many promotions, including that  of the  appellant were  made on the basis of ‘seniority’ which,  in the  absence of  any Rule  made under Article 309,  could be  legally adopted  as the criteria for making promotion  on the  post of  Superintendent could  not have been  displaced by  the Draft  Rules and the High Court could not  have invoked  any provision  of those Draft Rules which had  been lying  frozen at  their embryonic  stage for more than ten years.      In the  absence of any decision of the State Government that so  long as  the Draft  Rules were  not  notified,  the service conditions  of the  appellant or  the respondent and their other  colleagues would  be regulated  by  the  "Draft Rules" prepared  in 1983,  it was  not open  either  to  the Government or to any other authority, nor was it open to the High Court,  while disposing of the writ petition, to invoke any of  the provisions  of those  Rules particularly  as the Government has  not come  out with  any explanation  why the Rules, thought  prepared in 1983, have not been notified for the long period of more than a decade. The delay, or, rather inaction, is startling.      On facts  also, there is a strong case in favour of the appellant. She  was appointed  originally  on  the  post  of Tailoring Instructor  in 1983.  After having  put  in  eight years of  service, she  was promoted  on ad hoc basis to the post of  Superintendent on  the basis  of seniority,  as she was, by  all reckonings, senor to other eligible candidates, including respondents 3 and 4 who were appointed in 1986. If the question of promotion is considered in the background of the fact  that the Draft Rules, which were lying in a frozen state, could  not have   been  utilised for  regulating  the services of  the employees  working  in  the  department  in question, the  appellant’s promotion,  which was made on the basis of  seniority could  not have  been legally disturbed. Moreover,  she  was  appointed  on  the  post  of  Tailoring Technician which  is the feeder post for making promotion to the post  of Cutter  Master and  then to the post of Manager and ultimately  to the  post of  Superintendent. It  will be noticed that  the State  Govt. had  not disputed  before the High Court  that the  appellant was  senior to respondents 3 and 4.      Since the  appellant’s reversion has been brought about only because  of the  promotion of  respondent No.  3 on the post of  Superintendent in  terms of the order passed by the High Court  and since we have found that the order passed by

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the High  Court is not correct, we allow this appeal and set aside t  he impugned  judgment dated  25.41994 and quash the order dated  1.7.1994 by which the appellant was reverted to the post  of Tailoring  Instructor. The  appellant shall  be allowed to  continue on the post of Superintendent and shall be paid all consequential benefits, including the arrears of salary. There shall, however, be no order as to costs.      We  may,   however,  clarify   that  if   any  post  of Superintendent is  available for promotion of the appellant, the promotion of respondents 3 and 4 already made, shall not be disturbed.