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Promotion of respondents No.3 & 4 for the post of Sr. Scale Stenographer vide the impugned order dated 26th February, 1991 (Annexure P-4) is under challenge in the present petition. Petitioners and the private respondents were working as Junior Scale Stenographers in the office/department of Director, Public Relations, Haryana. It is admitted case of the parties that the petitioners were senior to the private respondents as per the Gradation list (Annexure P-3). Respondents No.3 & 4 were promoted to the post of Senior Scale Stenographers vide the impugned order dated 26th February, 1991 (Annexure P-4) on the basis of a test conducted by respondent No.2. The petitioners also participated in the said test but failed. The grievance of the petitioners is that the service conditions of the petitioners and private respondents are governed and regulated by statutory rules namely Punjab Public Relations Department (Class III Non Gazetted) Services Rules, 1958 and for promotion from the post of Junior Scale Stenographer to the post of Senior Scale Stenographer, no test is prescribed. According to the petitioners, holding of such tests on the basis of only draft rules is illegal and the petitioners cannot be deprived of the promotion on the basis of their seniority merely for non-clearance of some test, which is not provided for in the statutory rules. It is contended on behalf of the petitioners that since rules do not prescribe any test, holding of such test for promotion is impermissible in law.

It is admitted case of the parties that the private respondents No.3 & 4 were promoted on the basis of test conducted. It is, however, submitted that under the rules, there is a post of Stenographer and in the year 1976, the Directorate of Public Relations, Haryana was declared 'A' class office with effect from 01.04.1976. A copy of the order dated 12th February, 1976 has been placed on record as Annexure R-2. It is further stated that in view of the above order, the department stands bifurcated into 'A' Class and 'B' Class. On the advise of the Legal Remembrancer, Haryana service rules applicable to the Secretariat Establishment, which is 'A' Class office, also became applicable to the respondent-Department. Accordingly, an amendment was carried out in Rule 8 of Punjab Public Relations Department (Class-III Non Gazetted) Service Rules, 1958, vide notification No.GSR-42/Const./Art.309/Amd.(1)/78 dated 31.03.1978. In view of the amendment, the recruitment of Stenographers and Junior Scale Stenographers has been provided in the revised draft rules and in view of the above situation, a test was held on 30th July, 1990 to fill up the post of Senior Scale Stenographers. As per the provisions of draft rules, respondents No.3 & 4 having qualified the test were promoted whereas the petitioners failed to qualify the test.

APPENDIX 'A' Designation of Number Rising Pay-Scale Post of Post from _________ Superintendents 1 350-450 XX XX Stenographer to DPR 1 116-250 Stenographers 3 100-175 Steno-Typists 4 60-115 plus Rs.15/-

OR English shorthand at 100 words per minute and transcription thereof at 20 words per minute.

From the perusal of rules, it appears that there is only one cadre of Stenographer and the recruitment to the post of Stenographer is to be made either by selection from Steno-Typist or by transfer/deputation from other Government departments and by direct recruitment. Rule 8 relates to only direct recruitment. Even the amendment carried out in the year 1978 is in respect of the direct recruitment to the post of Stenographer. Under the Recruitment Rules of the department, there are no posts of Junior Scale Stenographers or Senior Scale Stenographers. It appears that when in the year 1976 when the Government intended to upgrade the office of the Director, Public Relations, Haryana to declare it as 'A' Class, the rules of the Secretariat Establishment were applied. Nothing has been placed on record to indicate that merely by declaring an office of the 'A' Class, the rules of Secretariat Establishment will apply. Even the note dated 12th/13th February, 1976, placed on record as Annexure R-2, indicates that a notification is required to be issued separating the Cadre at the Head Quarter from the cadre at the District level. It further provides that option is to be obtained from the entire staff serving at the District level and also the Head Quarter for their absorption in the District level or the Head Quarter Cadre as the case may be. Admittedly, the statutory notification dated 31st March, 1978 was issued bifurcating the department in two Cadres i.e. 'A' Class office Head Quarter and 'A' Class office other than Head Quarters. The post of Stenographer remained as it is. This post of Stenographer was never re-designated into Junior Scale Stenographer or Senior Scale Stenographer. How and on what basis, the post of Senior Scale Stenographers were created, is not apparent from the record nor any material has been placed on record to establish creation of separate the posts of Senior Scale Stenographers and Junior Scale Stenographers. It is admitted case of the respondents that the test was held under the draft rules. Draft rules cannot be applied and invoked in the presence of statutory rules in operation. Holding a test in absence of any statutory backing is impermissible in law. Hon'ble Supreme Court in the case of State of Haryana and Others Versus Shamsher Jang Bahadur and Others, 1972 S.L.R. (S.C.) 443 held as under:-