GULSHAN NANDA Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner who belongs to a backward class category stakes his claim for his being considered for promotion to the rank of Head Draftsman Grade I on a reserved point in the roster when promotions were ordered on 6.5.1995. This right having been denied to the petitioner, he filed the present writ petition. The case of the respondent is that though the turn of the petitioner for consideration for promotion as Head Draftsman Grade I on a reserved point had reached but the petitioner could not be considered as he was ineligible for the promotion according to the draft rules which prescribe 5 years experience as Head Draftsman Grade II. Admittedly, the petitioner did not have that much experience as Head Draftsman Grade II on the date when promotions were ordered. He had, by that time, only experience of 3-1/2 years.

(2.) Learned counsel for the petitioner submitted that the draft rules have no force of law unless the same are published and duly enforced. Further it is the case of the petitioner that even no conscious decision was taken by the respondents to treat the draft rules as executive instructions till these were duly published. It is further the case of the petitioner that the respondents themselves are not following the draft rules and he has given example of one Shri Ram Kishan who belongs to scheduled castes category and was promoted as Sub Divisional Engineer vide order dated 9.2.1996, Copy Annexure P-10 with the replication while he did not have 10 years experience as Head Draftsman Grade I which is the required experience as per the draft rules. According to the petitioner, the said Ram Kishan was promoted as Head Draftsman Grade. In the year 1992 whereas according to the respondents, he was promoted as such in the year 1988. Learned counsel for the petitioner submits that even if it is taken that said Ram Kishan was promoted as Head Draftsman Grade I in the year 1988 even then he had not completed 10 years when he was promoted as Sub Divisional Engineer in the year 1996.

(3.) On the other hand learned counsel for the respondents submits that draft rules as framed by Haryana Urban Development Authority (in short HUDA) were approved by the State Government on 7.8.1989. However it is admitted that till date, these have not been published in the official gazette or any other manner. It is not understood as to why the rules which were approved in August 1989 by the State Government have yet to be published and enforced. It is further submitted by the respondents that the respondent-HUDA has been applying draft rules for the purpose of promotion etc. to the employees of HUDA. After hearing the learned counsel for the parties, we are of the view that the writ petition is liable to succeed. It was held by a Division Bench of this Court in LPA No. 509 of 1968 decided on 16.4.1970 that draft rules have no force of law though these can be considered to be executive instructions if a conscious decision is taken by the concerned authorities that till the draft rules are published and enforced, the draft rules would be considered as executive instructions. Following the draft rules in some cases would not amount to that there is a conscious decision to treat the draft rules as executive instructions. No such decision has been brought on record or to our notice that a conscious decision was taken to treat the draft rules as executive instructions. Apart from that, as observed above, even the respondents are not following draft rules themselves. The illustration of one Shri Ram Kishan, already quoted above, is a pointer to that effect.