[2026:RJ-JP:301] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 314/2011 Nand Ram Yadav Son Of Late Shri Umrao Singh Yadav, aged about 44 years, R/o 6-A-III, In Front Of Delhi Public School, Civil Lines, Bikaner ----Petitioner Versus 1. State Of Rajasthan Through Additional Chief Secretary, Home Department, Government Of Rajasthan, Secretariat, Jaipur 2. Secretary To Government, Disaster Management And Relief Department And Ex-Officio Director, Civil Defence, Civil Defence Headquarter, Subash Nagar Shopping Centre, Jaipur Rajasthan 3. Mr. Dharam Pal, Inspector (Wireless), Civil Defence And Home Guards, Headquarters, Jaleb Chowk, Jaipur, Rajasthan ----Respondents For Petitioner(s) : Mr. Sandeep Singh Shekhawat For Respondent(s) : Mr. Priyam Agarwal Ms. Monisha Agarwal on behalf of Mr. Vigyan Shah, AAG HON'BLE MR. JUSTICE ANAND SHARMA Order 07/01/2026 1. By way of filing this writ petition, the petitioner has challenged a notification dated 30.01.1981 issued by Deputy Secretary of the Government Home (Group) XII Department, Government of Rajasthan, Jaipur as well as the order dated 29.10.2010 whereby, the respondent No. 3 has been promoted to the post of Inspector Technician. 2. It is submitted by learned counsel for the petitioner that the petitioner was initially appointed to the post of Constable on 15.07.1989 in Police Telecommunication. Thereafter, he was selected on the post of Wireless Operator (Sub-Inspector) on [2026:RJ-JP:301] (2 of 10) [CW-314/2011] 07.05.1998 in Civil Defence and Home Guards. As per the petitioner, since then, he has been working on the post of Wireless Operator (Sub-Inspector) in Civil Defence and Home Guards Department. 3. It was further submitted by learned counsel for the petitioner that the petitioner was also selected for pursuing Police Wireless Operator Grade-Ist Training Course, which was conducted by the Directorate of Coordination (Police Wireless) itself. After undergoing the said training, certificate was issued to the petitioner on 04.09.2006. 4. Learned counsel for the petitioner submits that next promotion post from the post of Wireless Operator (Sub- Inspector) was Inspector Wireless. The petitioner being eligible was although considered along with respondent No.3 for the aforesaid post however, the respondent No.3 was promoted to the post of Inspector Wireless against the vacancies of the year 2005- 06 vide order dated 29.10.2010. 5. Learned counsel further submits that one notification dated 30.01.1981 was issued by the Home (Grade XII) Department in order to prescribe minimum qualification and experience for promotion to the post of Inspector (Radio/Wireless), which is a post to be filled in 100 per cent by promotion. Minimum qualification as prescribed in the notification dated 31.01.1981 is that the candidate is required to possess I Grade Operator/Technical Examination State Wireless (Police) Organization "OR" five years' experience as Sub-Inspector Operator/Technician in Home Guards/Civil Defence. [2026:RJ-JP:301] (3 of 10) [CW-314/2011] 6. Learned counsel for the petitioner emphasized that despite the fact that the respondent No.3 was not possessing the minimum qualification prescribed in notification dated 30.01.1981 as he was not having any training certificate of I Grade Operator/Technical Examination merely on account of possessing 5 years' experience as Sub-Inspector Operator/Technician, he has been promoted to the post of Inspector Wireless. Learned counsel further argued that although, there are no statutory rules in force in Rajasthan Home Guard and Civil Defence Department however, in the year 1996, draft rules were prepared which lays down the qualification of Inspector Technician as under: Section - IV Civil Defence Telecommunication Senior Posts: Inspector Technician 100% by promotion Sub- Inspector Technician i. Having passed Ist Grade Operator/Technician Examination of State Police Telecommunications Directorate. OR Having passed Grade-I Operator/Technician Examination either from CPRTC New Delhi or from School of Signals, know. AND ii. 5 years continuous service as Sub- Inspector Operator/Technician and 3 years continuous service as Sub-Inspector Operator/Technician, if Graduate. [2026:RJ-JP:301] (4 of 10) [CW-314/2011] 7. Learned counsel submits that as per aforesaid draft rules, merely experience of 5 years as Sub-Inspector Operator/Technician is not sufficient until and unless, the candidate possesses the minimum qualification of having passed of Ist Grade Operator/Technician Examination. 8. Learned counsel submits that thus, there is a clear cut difference in notification dated 30.01.1981 and draft rules of 1996. In notification the word "OR" has been used between the minimum qualification and 5 years' experience for the purpose of promotion to the post of Inspector Wireless, whereas in the draft Rules term "AND" has been used between the requirement of minimum qualification and 5 years' experience for the post of Sub- Inspector Operator/Technician. 9. Learned counsel further submits that thus, intention of the Government was quite clear in drafting the rules in the year 1996 where, it was made incumbent for the candidate seeking promotion to the post of Inspector Wireless to possess both minimum qualification as well as 5 years' experience, however, such draft rules were not complied with while making promotion of respondent No.3 to the post of Inspector Wireless vide order dated 29.10.2010 and merely, on the basis of faulty administrative instructions in the form of notification dated 30.01.1981, where the term "OR" has been used between minimum qualification and experience, the respondent No.3 has been promoted on the post of Inspector (Radio) Technician whereas, on account of not possessing minimum qualification, he was not otherwise eligible. 10. Learned counsel submits that thus, the notification dated 30.01.1981 is directly contrary to the draft Rules of 1996 [2026:RJ-JP:301] (5 of 10) [CW-314/2011] therefore, the administrative instructions dated 30.01.1981 cannot prevail over the draft Rules hence, such instructions vide notification dated 30.01.1981 are also be quashed and set-aside. 11. Learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Chandigarh Administration Vs. Usha Kheterpal Waie &Ors. (2011) 9 SCC 645 and Abraham Jacob and Ors. Vs. Union of India (1998) 4 SCC 65 in support of his contentions. 12. Per contra, learned counsel for the respondent opposed the writ petition and submitted that the impugned order dated 29.10.2010 has been issued strictly in accordance with the procedure for promotion as prescribed in notification dated 30.01.1981 hence, there is no illegality in the impugned order. Learned counsel submits that since, the respondent No.3 was possessing 5 years' continuous service experience on the post of Sub-Inspector Wireless/Technician therefore, in view of explicit terms mentioned in notification dated 30.01.1981, respondent No. 3 was eligible and entitled to be promoted to the post of Inspector Wireless. 13. Learned counsel submits that as there are no statutory Rules prevailing in Home Guard and Civil Defence Department therefore, instructions dated 30.01.1981 issued by Deputy Secretary to the Government Home Department are prevailing for filling up the post of Inspector (Radio/Wireless). 14. Learned counsel submits that it is settled proposition of law that when the statutory rules are not there, the necessary instructions issued by the competent authority can be followed for the purpose of making recruitments/promotions. [2026:RJ-JP:301] (6 of 10) [CW-314/2011] 15. Learned counsel further submits that the administrative instructions dated 30.1.1981 cannot be examined at the touchstone of draft rules, which have never been notified or enforced. He submits that draft rules, until and unless notified as per procedure after due approval of the competent authority, cannot take shape of law and no right can be claimed by the petitioner on the basis of such draft rules. 16. In view of above submissions, learned counsel for the respondent prayed for dismissing the writ petition filed by the petitioner. 17. Learned counsel for the respondent has also relied upon the judgment of Hon'ble Supreme Court in the case of Dr. Sharmad Vs. State of Kerala and Ors. in Civil Appeal No. 13422/2024 decided on 10.01.2025 in support of his contentions. 18. Heard learned counsel for the parties and perused the record. 19. It is not in dispute between the parties that the respondent No. 3 was possessing 5 years' experience as Sub- Inspector Operator/Technician in Home Guard and Civil Defence Department therefore, in view of the prevailing administrative instructions dated 30.01.1981, he was eligible for being considered for promotion on the post of Inspector Wireless. Petitioner has not come out with a case that respondent No.3 was junior to the petitioner. 20. Now question arises as to only on account of the fact that respondent No.3 was not possessing certificate of Ist Grade [2026:RJ-JP:301] (7 of 10) [CW-314/2011] Operator/Technical Examination, even then can he be considered for promotion to the post of Inspector Wireless? 21. It is also not in dispute that till date, statutory rules are not in force with regard to regulation of the terms and conditions of promotion/appointment to the post of Inspector Wireless in respondent-Department. 22. Learned counsel for the petitioner emphatically contended that the draft Rules prepared in the year 1996 would reveal the intention of the Government to make both minimum qualification and experience essential for consideration for promotion to the post of Inspector Wireless, however, he simultaneously admitted that such draft Rules have not been notified till this date, even after expiry of around 30 years from the date of its drafting. Hence, under these circumstances, the administrative instructions issued by the Home Department of Government of Rajasthan dated 30.01.1981 cannot be examined at the touchstone of draft rules, which are yet to be notified and enforced. 23. It is settled proposition of law that if there are no statutory rules or the Rules are silent on a particular point, the Government can fill up the gaps by issuing executive instructions, as held by Constitutional Bench of Hon'ble Supreme Court in the judgment of Sant Ram Sharma Vs. State of Rajasthan reported in AIR 1967 SC 1910, which has further been followed in the case of Dhananjay Malik Vs. State of Uttaranchal reported in 2008 (4) SCC 117. 24. Needless to mention here that the draft Rules, being preliminary proposals, have yet to undergo, the formal process of [2026:RJ-JP:301] (8 of 10) [CW-314/2011] notification and publication under the relevant statutory provisions such as proviso to Article 309 of the Constitution of India or enabling legislation, lack the sanctity of law and possess no binding force. They represent merely an intended framework subject to final approval, and thus cannot be invoked or enforced in a writ petition under Article 226 of the Constitution of India. Only duly notified Rules qualify as statutory instruments enforceable against State. Draft Rules do not confer enforceable rights or fasten obligation upon anyone. 25. Moreso, in the present matter where the draft Rules have not been notified for last almost three decades, such inaction for such a long time puts a reasonable doubt over intention of the Government to give it statutory shape. Hence, such draft rules have lost their relevance and have become meaningless. 26. It is also settled that in the absence of any duly framed statutory Rules under Article 309 of the Constitution of India or other enabling legislation, executive instructions validly govern the field and acquire binding force upon administrative authorities. Such instructions emanating from executive power of the State fill the legislative vacuum by providing procedural and substantive guidance. 27. In the case of Dr. Sharmad (supra), the Hon'ble Supreme Court was examining the enforcability of administrative instructions despite there being draft rules and it has been held as under: 12. The eligibility criteria for appointment on posts borne in Branch – I i.e. Administrative Cadre and in Branch – II i.e. Teaching Cadre, in the absence of recruitment rules framed under Article 309 of the Constitution, are provided by [2026:RJ-JP:301] (9 of 10) [CW-314/2011] G.O. dated 07th April, 2008 which is the executive order governing recruitment. That is a position, which is accepted even by Dr. Jyotish. According to him, Dr. Sharmad does not qualify in terms thereof. 13. Law is settled that in the absence of rules, recourse to recruitment based on executive orders could be taken. Even without examining whether G.O. dated 14th December, 2009 had any application to the promotional appointment in question, it would be just and proper to focus on the requirements of G.O. dated 07th April, 2008. 14. The contents under the column ‘experience’ in G.O. dated 07th April, 2008, extracted supra, have been read. A plain and literal reading does not lead to the conclusion that 5 years’ experience of physical teaching as an Assistant Professor after acquiring M. Ch. degree is one of the requisite qualifications. 28. So far as the judgment of Chandigarh Administration (supra) relied upon by the petitioner is concerned, it is clear by perusing para 20 of the said judgment that the recruitment rules made therein by the administrative authorities were duly notified, which is not therefore in the present case and the draft rules have not yet been notified. Similarly, in the case of Abraham Jacob (supra), the judgment has been delivered by the Hon'ble Supreme Court while considering the fact that the draft Rules were being executed and promotions were actually being made by enforcing such draft Rules. In the instant case, the petitioner has failed to establish that at any point of time since the date of drafting of such Rules, till this day, they have ever been implemented or executed by the respondent-Government. As such, both the judgments relied upon by the petitioner are not attracted in the present facts and circumstances of the case. [2026:RJ-JP:301] (10 of 10) [CW-314/2011] 29. For the reasons mentioned in the petition hereinabove and in view of guidelines given by Hon'ble Supreme Court, this Court does not find any infirmity in notification dated 30.01.1981 as well as in promotion order dated 29.10.2010. Hence, the writ petition filed by the petitioner is hereby dismissed. 30. Pending application(s), if any, shall stand disposed of. (ANAND SHARMA),J NEERU/12