Holding

Unnotified draft rules cannot be treated as law under Article 309 and therefore cannot be used to disturb a promotion based on seniority; the reversion order is set aside.

Summary

The appellant, appointed as Tailoring Instructor in 1983, was promoted to Superintendent in 1991 on the basis of seniority. Respondents 3 and 4, who were graduates, challenged the promotion invoking the unnotified Haryana Social Welfare and Relief Organisation Service Group ‘C’ Rules, 1983, and the High Court ordered the appellant’s reversion to her earlier post. The Supreme Court held that draft rules that have not been notified and for which there is no clear governmental intent to enforce cannot be treated as law under Article 309 of the Constitution and cannot override existing executive instructions. In the absence of any statutory rule, seniority is a lawful criterion for promotion. Consequently, the order of reversion was quashed, the appellant was reinstated as Superintendent with all consequential benefits, including arrears of salary, and the promotion of respondents 3 and 4 was not disturbed.

Issues considered

Can unnotified draft service rules be invoked to regulate promotion of employees?
Does the absence of a notified rule permit the use of seniority as the basis for promotion?
Is a reversion order based on such draft rules valid under Article 309 of the Constitution?
Do draft rules have the power to exclude the jurisdiction of the competent authority?

Legislation cited

Constitution of Indias. Art. 309

Subjects

service lawdraft rulespromotionseniorityArticle 309back wagesreversionHaryana

Judgment

A VIMAL KUMAR!
v.
STATE OF HARYANA AND ORS.

FEBRUARY 4, 1998

B [S. SAGHIR AHMAD AND G.B. PATTANAIK, JJ.]

Service Law :

Haryana Social Welfare and Relief Organisation Service Group 'C'
C Rules, 1983:
Service Rules-Draft Rules-Not notified for about a decade-:--Nor the
Government gave any expjanation for not doing so-Employee reverted on
the basis of Draft rules-Validity of-Held: If there is clear intention on the
part of Government to enforce the draft rules in the near future, recourse to
D such draft rules is permissible to meet any emergent situation-However, if
there is no intention to enforce or notijj; the rules at all recourse to such rules
cannot be taken-This is because such draft rules cannot be treated as rules
made under Art. 309-Further, draft rules cannot legally exclude the
jurisdiction of the competent authority for regulating sen1ice conditions of
E employees by executive instructions-Jn the circumstances of the case, draft
rules cannot be invoked for regulating promotion-Hence, reversion order
of employee set aside-Constitution of India, 1950, Art. 309.

Promotion-Criteria-Seniority-Basis for promotion-Held: In the
absence of any other criterion seniority was rightly adopted as the basis for
F promotion.

Back wages-Employee wrongly reverted-Held: Order of reversion Y
quashed-Direction issued for payment of all consequential benefits including
arrears of salary.

G The appellant was appointed as Tailoring Instructor and subsequently
promoted as Superintendent. The promotion was made on the basis of seniority
as there were no departmental provisions to specifically regulate the
promotion. However, respondent nos. 3 and 4 challenged the promotion before
the High Court on the ground that they were graduates and, therefore should
have been promoted in place of the appellant in terms of the Draft Rules
H known as Haryana Social Welfare Organisation Service Group 'C' Rules,
658
VIMAL KUMAR! v. STATE 659
1983. The High Court accepted this contention and accordingly respondent A
no. 3 was promoted to the post of Superintendent in place of the appellant
who was reverted to the post of Tailoring Instructor. Hence this appeal.

On behalf of the appellant it was contended that the Draft Rules had
not been enforced and consequently promotion to the post of Superintendent
could have been regulated only on the basis of executive instructions by B
I-- adopting "seniority" as a criterion.

Allowing the appeal, this Court

HELD : 1. It is open to the Government to regulate the service conditions
of the employees for whom the Rules are made, by those Rules even in their c
"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 situ11tion. 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 made. Such Draft
D
-~ 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 conditjons of service of the E
employees working under them. [661-C-E]

2.1. In the instant case, the Draft Rules were prepared in 1983. They
have been lying in the nascent state since then. 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 F
'I" adopted as the reasonable basis for promotion. Seniority having t~us been
adopted as the criterion for making promotion on the post of Superintendent
could not have been displaced by the Draft Rules. [661-F-G]

2.2. In the absence of any decision of the State Government that so
G
long as the Draft Rules were not notified, the service conditions of the
appellant or the employees 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, though prepared in H
660 SUPREME COURT REPORTS [1998) I S.C.R.

A 1983, have not been notified for the long period of more than a decade. The
delay, or, rather inaction is, startling. [661-H; 662-A)

2.3. Since the appellant was wrongly reverted the revision order is
quashed. The appellant shall be allowed to ~ontinue on the post of
Superintendent and shall be paid all consequential benefits, including the
B arrears of salary. [662-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4721 of
1996.

From the Judgment and Order dated 25.4.94 of the Punjab & Haryana
C High Court in C.W.P. No. 757of1994.
S. Balakrishanan, S. Prasad and M.K. D. Namboodri for the Appellant.

Jasbir Malik, Prem Malhotra and Lalita Kaushik (N.P.) for the
Respondents.

D The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. This appeal is directed against the judgment
and order dated 25.4.1994 efthe 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.
E 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 respondents
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
F promoted in place of the appellant and respondent 5 to 9, as they were
Graduates 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
G 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 I and 2 thereafter considered the claim of respondents 3
H and 4 and other similarly situated employees for promotion to the post of
VIMAL KUMAR! v. STA TE [S. SAGHIRAHMAD, J.] 661

Superintendent in temis of the Draft Rules, as directed by tl1e High Court and A
. .- Y promoted Smt. Asha Kiran, respondent no. 3, to tlle post of Superintendent
and posted her at Mahi la Ashram, Kamal, in place of tl1e appellant who was
reverted to the post of Tailoring Technician. It is in tllese circumstances that
tlle present appeal has been filed.

Learned counsel for tlle appellant has contended tllat tlle High Court B
was not justified in relying upon the Draft Rules which had not been enforced
and consequently tl1e promotion to tlle post of Superintendent could have
been regulated only on tl1e 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 they have not C
been enforced. It is, no doubt, open to tlle Government to regulate tlle service
conditions of tlle employees for whom tlle Rules are made, by tllose Rules
even in tlleir "draft stage" provided tllere is clear intention on tl1e part of tlle
Government to enforce t11ose Rules in the near future. Recourse to such Draft
Rules is permissible only for tlle interregnum to meet any emergent situation. D
~-
But iftlle intention was not to enforce or notify tlle Rules at all, as is evident
in tlle instant case, recourse to "Draft Rules" cannot be taken. Such Draft
Rules cannot be treated to be Rules made under Article 309 oftlle Constitution
and cannot legally exclude the operation of. any existing executive or
administrative instruction on tlle subjects covered by tlle Draft Rules nor can
such Draft Rules exclude tlle jurisdiction of tlle Government, or for tllat matter, E
any otl1er autllority, including the appointing autllority, from issuing tlle
executive instructions for regulating tlle conditions of service oftlle employees
working under tllem.

In tlle instant case, as pointed out above, tlle Draft Rules were prepared
in 1983. They have been lying in tlle nascent state since tllen. In tlle meantime, F
many promotions, including tllat of tlle appellant were made on tlle basis of
'seniority' which, in tlle absence of any Rule made under Article 309, could
be legally adopted as tl1e reasonable basis for promotion. Seniority having
tlms been adopted as tlle criteria for making promotion on tlle post of
Superintendent could not have been displaced by tl1e Draft Rules and tlle G
High Court could not have invoked any provision of t11ose Draft Rules which
had been lying frozen at their embryonic stage for more tllan ten years.

In tlle absence of any decision of tlle State Government tllat so long
as tlle Draft Rules were not notified, tlle service conditions of the appellant
or tlle respondent and tlleir oilier colleagues would be regulated by tlle "Draft H
662 SUPREME COURT REPORTS [1998) l S.C.R.

A 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, though
prepared in 1983, have not been notified for tl1e long period of more tlian a
B decade. The delay, or, rather inaction, is startling.

On facts also, there is a strong case in favour of tl1e appellant. She was
appointed originally on tl1e 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 tl1e basis of seniority, as she was, by all reckonings,
C senior to other eligible candidates, including respondents 3 and 4 who were
appointed in 1986. If the question of promotion is considered in tl1e background
of the fact that the Draft Rules, which were lying in a frozen state, could not
have been utilised for regulating tl1e services of the employees working in the
department in question, the appellant's promotion, which was made on tlie
basis of seniority could not have been legally disturbed. Moreover, she was
D appointed on the post of Tailoring Instructor and not on ~e post of Tailoring
Teclmician which is tl1e feeder post for making promotion to the post of
Cutter Master and tl1en to the post of Manager and ultimately to the post of
Superintendent. It will be noticed that tl1e State Govt. had not disputed before
tl1e High Court tlial the appellant was senior to respondents 3 and 4.
E
Since tl1e appellant's reversion has been brought about only because
of the promotion of respondent No. 3 on the post of Superintendent in tem1s
of the order passed by the High Court and since we have found that the order
passed by the High Court is not correct, we allow tl1is appeal and set aside
the impugned judgment dated 25.4.1994 and quash the order dated l.7.1994 •
F by which tl1e 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. T11ere shall,
however, be no order as to costs.

G We may, however, clarify tl1at if any post of Superintendent is available
for promotion of the appellant, tl1e promotion of respondents 3 and 4 already
made, shall not be disturbed.

V.S.S. Appeal allowed.