Important Point
Recourse to Draft Service 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.

Judgment

S. Saghir Ahmad, J.-This appeal is directed against the judgment and order dated 25.4.1994 of the High Court of Punjab and 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.

2. 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 promoted in place of the appel­lant and respondents 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.”

3. The High Court by the impugned judgment accepted the claims 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.

4. Respondents 1 and 2 thereafter considered the claim of respondents 3 and 4 and 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.

5. 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.

6. The Draft Rules were prepared in 1983 and since then 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 the 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.

7. In the instant case, as pointed out above, 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 adopted as the reasonable basis for promotion. Seniority having thus been 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.

8. 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 respon