VIMAL KUMARI versus STATE OF HARYANA AND ORS.

Citation: [1998] 1 S.C.R. 658 · Decided: 04-02-1998 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 
B 
could have been regulated only on the basis of executive instructions by 
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' F 
which, in the absence of any Rule made under Article 309, could be legally 
'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 pa

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