STATE OF HARYANA Vs. BALWAN SINGH

JUDGEMENT

(1.) The present Letters Patent Appeal has been filed by the State of Haryana impugning the judgment of the learned single Judge dated July, 17, 1990, holding that the quota in the ratio of 67 : 33 amongst the promotees and the direct recruits to the posts of Assistant Food and Supplies Officers as fixed by the Haryana Food and Supplies Department Sub-Officer (Group-C) Rules, 1982 (hereinafter called the '1982 Rules') would be applicable to the vacancies which had arisen after 26th Sept., 1982 when the aforesaid Rules were promulgated. The facts of the case are given as under:- Petitioner Nos. 1 to 3 in the writ petition were promoted as Head Analysts in the Department of Food and Supplies, whereas petitioner Nos. 4 to 8 (collectively called the respondents) were appointed to the post of Junior Analysts in the same Department. According to Rule 2 of the Haryana Food and Supplies Departments (State Services) Class-III Rules, 1968 (hereinafter called the 1968 Rules), the post of Assistant Food And Supplies Officer was to be filled by promotion only, 80 per cent of the total vacancies to be filled in by promotion from amongst the Inspectors and the remaining 20 per cent by promotion from the posts of Assistant and Head Analyst. In 1977 another set of draft rules were framed which provided a quota for recruitment to the post in question in the ratio of 67 : 33 for promotion and direct recruitment respectively. Appendix 'E' to these draft rules indicated the manner of filling up these posts and a Roster was provided stating points at Sr. Nos. 7th and 18th in a cycle of 22 posts was to be filled in from the category of Head Analysts. The draft Rules of 1977 were therefore promulgated verbatim as the Haryana Food and Supplies Department Sub Office (Group C) Rules, 1982 on 26th Sept., 1982. It was the case of the respondents that direct recruitment to the extent of 33 percent of the vacancies under the 1982 Rules was permissible only against the vacancies for the posts of Assistant Food and Supplies Officers which arose after the promulgation of the 1982 Rules and the quota fixed under those rules could not be retrospectively applied. The learned single Judge found that the quota provided under the Rules of 1977 could not be enforced as the 1968 Rules having been framed and enforced under Art. 309 of the Constitution on India, could not be ignored by the Rules of 1977. Having held as above, the learned single Judge found that 1968 Rules ceased to have effect only on the promulgation of the 1982 Rules on 26th Sept., 1982 and, as such the quota fixed in the ratio of 67:33 per cent would be applicable prospectively only from that data.

(2.) Mr. Jaivir Yadav, learned Deputy Advocate General Haryana, appearing on behalf of the appellant-State, has urged that the basic fallacy in the judgment of the learned single Judge is that he has held that the 1968 Rules having been framed under Art. 309 of the Constitution had statutory force and, as such, the quota fixed under the Rules of 1977 could not be enforced. In this connection, he has urged that this finding is erroneous inasmuch as that the 1968 Rules were also mere draft rules which had been adopted by the Government in the form of executive instructions. He has brought to our pointed notice para 2 of the written statement filed on behalf of respondents 1 and 3 in support of his argument wherein it has been clearly stated that though the 1968 Rules had been framed and approved by the Government yet they had never been notified in the Government Gazette. In continuation of this very argument, Mr. Jaivir Yadav has urged that the Rules of 1977 which were also in the nature of draft rules were adopted in letter and spirit and after their adoption by a conscious Government decision on 22.5.1977 they superseded the 1968 Rules. In reply to this argument, Mr. Surya Kant, learned counsel for the respondents, has urged that even accepting the interpretation sought to be put by the learned State counsel, it was still apparent that even from the year 1977 the Head Analyst (to which category his clients belong) had not been given their representation in the quota fixed by the rules of 1977 as also in the 1982 Rules. He has urged that in view of the matter a direction should be issued to the appellant to strictly comply with the quota fixed at least from the year 1977.

(3.) After given our thoughtful consideration to the entire matter we are of the considered view that the appeal is liable to succeed, though partially. The 1968 Rules which were draft rules and erroneously held to have statutory force by the learned single Judge were superceded on 27.5.1977 by the Rules of 1977 which provided a quota for promotion and direct recruitment in the ratio 67:33. It is also clear that the Rules of 1977 were in their entire form notified as the 1982 Rules on 28th Sept., 1982, as Rules under Art. 309 of the Constitution. In the light of the above discussion, we are of the opinion that the quota would be applicable to those vacancies which arose on or after 27.5.1977. For the reasons recorded above, the present appeal is partly allowed and a direction is issued to the appellant-State of Haryana that the quota would be applicable to the vacancies that have arisen from 27.5.1977 and the judgment of the learned single Judge is modified to that extent. In order to ensure due justice to the litigating parties, we direct that the case of the respondent-Head Analyst would be considered for promotion to the post of Assistant Food and Supplies Officer in the terms of this judgement. This exercise will be completed, if possible, within a period of six months from today and the respondents who are found entitled to promotion will be given all consequential benefits within a period of six months thereafter. The present appeal is disposed of in the above terms.