- (1.) The instant appeal filed under Clause X of the Letters Patent is directed against judgment dated 13.12.2010 rendered by the learned Single Judge of this Court. While allowing the prayer made by Respondent Nos. 1 to 15, learned Single Judge has held that they were entitled to be considered for promotion in pursuance of the qualifications laid down in the statutory rules known as 'the Haryana Health Department Nursing Personnel and Lady House Keepers (Group C) Service Rules, 1998' (for brevity, 'the 1998 Rules') which have been framed under proviso to Article 309 of the Constitution. The learned Single Judge has also set aside the order dated 25.9.2009 (P-5) passed by the Respondent State of Haryana and subsequent order dated 26.10.2009 (P-6) passed by the Director General, Health Services, Haryana.
(2.) According to the order passed by the State of Haryana it had been decided that promotion of eligible candidate to the vacant post of 'Principal Tutor' be made provisionally as per the new Draft Rules containing the proposed amendments. The consequential order dated 26.10.2009 has been passed promoting the Nurses working in the Public Health Department to the post of Principal Tutor in the pay scale of Rs. 9300-5400 on provisional basis.
(3.) The learned Single Judge has also observed that the Draft Rules framed in the year 2009 would not override the statutory 1998 Rules framed in exercise of power under proviso to Article 309 of the Constitution, especially when the vacancies of 'Principal Tutor' sought to be filled belonged to the year 1999. Accordingly, the Draft Rules of 2009 were to give way to the statutory 1998 Rules, which were prevalent at the time when vacancies have arisen in the year 1999. The learned Single Judge has also applied the principle of 'old vacancy old rule'. The view of the learned Single Judge is discernible from the following para: The clear legal position that can be noticed is that the earlier Rules will govern the field and not the Draft Rules. The legal position further would be that any vacancy, which would arise on a particular date, has to be filled up in accordance with law that was available at the time of the vacancy becoming available. If any amendment is made on account of requirement by the Indian Nursing Council and as such, amendment is incorporated in the Rules, they would govern to fill up the posts, which have arisen subsequent to the amendment and would not be applicable for filling up the vacancies, which were existing prior to such amendment. Counsel for the Petitioners is justified in making reliance on the case of Jagar singh v. State of Haryana,2002 4 SCT 104 in this regard. The legal position as enunciated in this case is that the vacancies, which occurred prior to the amendment, would continue to be governed by the old rules and not by the amended rules.;