JUDGMENT - C.S. DHARMADHIKARI, J.:---Petitioner was directly recruited as a Mukhya Sevika in the then Collectorate of Goa. By an order dated 17th December, 1986 along with others, she was confirmed in the said post. She is a trained graduate, being B.Sc (Hons.) and has also undergone training as Mukhya Sevika at Udaipur, Home Science College and job training for Child Development Project Officer at Delhi. It appears that her services, along with others, came to be transferred to the Directorate of Social Welfare, and some time in the year 1977, the staff of the Child Welfare Projects run by the State Social Welfare Board were also taken over by the Government. A tentative seniority list was thereafter prepared and circulated for inviting objections. In the year 1982, Rules under Article 309 of the Constitution of India came to be framed , known as Recruitment Rules. It is the case of the petitioner that for appointment as Mukhya Sevika, both by direct recruitment or promotion, a Degree of a recognised University with Social Science or any equivalent subjects as a course of study was necessary. The promotion to the post of Gram Sevika was from the rank of Bal Sevika or Griha Sevika for which the minimum qualifications prescribed were S.S.C. or equivalent. Thus, it is her case that only Bal Sevika possessing graduate qualifications could be appointed as Mukhya Sevikas. Further promotion from the rank of Mukhya Sevika was to the post of Social Welfare Officer/Child Development Project Officer. Thereafter, the Recruitment Rules in the year 1986 were framed, which were in suppression of the earlier rules. Under the said rules, recruitment to the post of Social Welfare Officer/Child Development Project Officer was 75% by promotion and 25% by direct recruitment. The promotion was from the rank of Mukhya Sevikas holding a Degree of a recognised University. It is the case of the petitioner that some of the respondents who are promoted as Social Welfare Officers or Child Development Project Officers are not Degree holders and not even S.S.C. On the basis of these allegations, therefore, the petitioner had challenged the Order of promotion issued by the Government of Goa vide Notification dated 27th August, 1987. 2. It appears from the record that the Goa Government was following a policy of making ad-hoc appointments to the promotional posts. 2. It appears from the record that the Goa Government was following a policy of making ad-hoc appointments to the promotional posts. The ad-hoc appointments made vide Order dated 10th of December, 1982, came to be challenged before this Court by the persons aggrieved. This petition came to be allowed partly. However, we are not concerned in this writ petition with the said controversy. 3. It is also the case of the petitioner that the Government of India had issued instructions to the State Governments that the posts of Child Development Project Officers should be manned by the persons who are possessing a Degree of a recognised University. The said directions were binding upon the State Government, since the whole project was being financed by the Central Government. Those instructions incorporated a general policy, and as a result of this ultimately, the Rules came to be amended in the year 1986. The petitioner is working as a Child Development Project Officer, though on ad-hoc basis, since 8th of December, 1982. It also appears that the respondent No. 13 Kum. Kishori Sadekar has been appointed to the post of Probation Officer. It further appears from the record that this was a direct appointment to the said post after issuing an advertisement in the newspapers. The advertisement itself stated that the post is ad-hoc and the appointment will also be on ad-hoc basis, till a regular appointment is made. Kum. Sadekar is appointed as an Probation Officer on ad-hoc basis on 24th of October, 1979, and we are informed that, till today, she continues in the said capacity as no regular appointment is made. We are also informed that, of late, the matter is referred to the Public Service Commission. It then appears from the record that on 10th of March, 1986, the Departmental Promotion Committee met to select Mukhya Sevikas for promotion on regular basis to the post of Child Development Project Officer/Social Welfare Officer. Group 'B' Gazetted. On the basis of the recommendation made by the said Departmental Promotion Committee, the Orders came to be issued on 27th of August, 1987. Though the petitioner was senior to respondents Nos. 8 to 13, her name was excluded from the said list, and consequently, she was not promoted to the said post. It is this Order of promotion of respondents Nos. Though the petitioner was senior to respondents Nos. 8 to 13, her name was excluded from the said list, and consequently, she was not promoted to the said post. It is this Order of promotion of respondents Nos. 2 to 13 which is challenged in this writ petition, on various grounds. 4. Shri Rebello, the learned Counsel for the petitioner, contended before us that the appointments in August, 1987 were obviously made after the Recruitment Rules of 1986 were brought into force. As per these Recruitment Rules, the minimum qualification for the said post is graduate of a recognised University. The respondents Nos. 2, 5, 7, 9 and 12 are not graduates. It is also contended by him that respondents Nos. 4, 5 and 12 are not even S.S.C. Therefore, according to the learned Counsel their promotion to the post of Social Welfare Officer/Child Development Project Officer was wholly illegal, being contrary to the Recruitment Rules, 1986. It is also his case that, assuming that since the Departmental Promotion Committee met earlier and the recommendations were also made prior to the coming into force of the Recruitment Rules of 1986, then also, the appointments made are bad in law, since the Departmental Promotion Committee has failed to take into consideration the vacancies for the period from 1979 to 1981. The vacancies from the year 1982 alone were considered. In her own right the petitioner was entitled to be considered for the vacancies existing in the year 1979 to 1981 itself. Therefore, the recommendations made by the Departmental Promotion Committee in that behalf must also get vitiated. It is then contended by the learned Counsel that even if there were vacancies existing prior to the coming in to force of 1986 Rules, the Government is not bound to fill in the said vacancies. Nobody has got a vested right in promotions. In fact, these vacancies came to be filled in after the 1986 Recruitment Rules came into force on 4th of September, 1986. Therefore, taking any view of the matter, it is the Recruitment Rules of 1986 which must govern these promotions and only graduates could be promoted and appointed to the said post. In support of this contention, Shri Rebello has placed strong reliance upon the decision of the Supreme Court in (Union of India v. Maiji Jangammayya)1, A.I.R 1977 S.C. 757 as well as in (M.K. Azad v. Govt. In support of this contention, Shri Rebello has placed strong reliance upon the decision of the Supreme Court in (Union of India v. Maiji Jangammayya)1, A.I.R 1977 S.C. 757 as well as in (M.K. Azad v. Govt. of A.P.)2, A.P. 1983 (3) S.L.R. 760. It is also the case of the petitioner that her service record is excellent and clean. At no time, any adverse remark was communicated to her. Therefore, if the promotions are to be made on the basis of the confidential reports only, then she was wrongly excluded. According to the petitioner, this is further clear from the fact that the right from the year 1982 upto date, she has continued working in the promotional post as Child Development Project Officer and even qua the said post, her service recorded excellent and clean. Therefore, in substance, it is contended by the learned Counsel for the petitioner that the appointments of the respondents Nos. 2 to 14 are wholly illegal, being contrary to the 1986 Recruitment Rules, and even otherwise, the petitioner was wrongfully excluded. 5. Shri Bhobe, the learned Standing Counsel for the Union of India, supported the contentions raised by the petitioner. According to him, even before framing of the Recruitment Rule, 1986, the Government of India had issued instructions from time to time as to how the persons to the said posts should be appointed. Since the Government of India was financing the whole scheme, the instructions issued by it were binding on the State Government. The said instructions contemplated that the said posts should be manned by the persons who are Degree Holders of a recognised University. Therefore, the Government of Goa was bound to appoint only the qualified persons to the said posts even before the framing of the Recruitment Rules. The Recruitment Rules of 1986 came to be framed on the basis of these Instructions only. In support of this contention, he has placed reliance upon the latest decision of the Supreme Court in Civil Appeal No. 3273 of 1988 (Union of India others v. Sh. Somasudaram Vishwanath others)3, decided on 22nd September, 1988, (1988) III SLR (L) 206. 6. On the other hand, it is contended by Shri Bharne, the learned Additional Government Advocate, as well as Shri Dias, that neither the 1982 Rules not the 1986 Rules are retrospective. Somasudaram Vishwanath others)3, decided on 22nd September, 1988, (1988) III SLR (L) 206. 6. On the other hand, it is contended by Shri Bharne, the learned Additional Government Advocate, as well as Shri Dias, that neither the 1982 Rules not the 1986 Rules are retrospective. The right to be considered for the promotion is a fundamental right vested in an employee as and when the vacancy occurs. Therefore, the rules or the conditions of service existing on the day when the vacancy arose, are only relevant for considering the rival claims of the employees. Before 1986, there were 12 vacancies and persons were appointed to the said posts on ad-hoc basis. The Departmental Promotion Committee which met in March 1986, considered the claims of employees on the basis of the Recruitment Rules, 1982. Under the said rules, an educational qualification, namely that the person should be a graduate, was not there. The promotions to the post of Social Welfare Officer or Child Development Project Officer, were to be made by selection .The instructions issued by the Government of India or even by the State Government must yield to the statutory rules framed under Article 309 of the Constitution of India, and therefore, the appointments made are perfectly legal and valid. In support of these contentions, they have placed strong reliance upon the decisions reported in (Varghese v. State of Kerala)4, (Kerala) 1981(2) S.L.R. 253 and in (State of U.P. and another v. Ram Gopal Shukla)5, 1981(2) S.L.R. 3. 7. Shri Pereira, the learned Counsel appearing for some of the respondents, supported the petitioner and contended that non-graduates could not have been appointed to the promotional posts. 8. From the record, it is clear that even prior to the framing of the Rules in 1982, the persons were appointed on ad-hoc basis to the said posts. So far as the impugned appointments are concerned, it is the case of the respondents that they were to be made on the basis of the rules then existing, namely 1982 Recruitment Rules, whereas it is the case of the petitioner that, since the appointments are made after the 1986 Recruitment Rules came into force, they are governed by the said rules. The stand taken by the respondent State Government in this behalf is a bit inconsistent. The stand taken by the respondent State Government in this behalf is a bit inconsistent. In the affidavit filed in reply, it is the case of the State Government that the Departmental Promotion Committee considered the promotion to the said post on regular basis in the vacancies from the year 1982 to 1985. In paragraphs 5 and 6 of the affidavit, it is submitted that the promotion is made on the basis of the seniority-cum-merit where as in paragraph 3, a statement is made that the Departmental Promotion Committee considered the vacancies year wise, and after verifying the confidential reports, graded the employees and recommended them in the order of merit-cum-seniority. It is not disputed that certain vacancies were existing even prior to the coming into force of 1982 Recruitment Rules i.e. right from the year 1979. If the stand taken by the State Government is that these vacancies are to be filled in as per the rules then existing, namely, as and when the vacancies are to be filled in as per the Rules then existing namely, as and when the vacancies arose, then, one fails to understand as to how the vacancies for the year 1979 to 1981 were filled in on the basis of the Recruitment Rules framed in the year 1982. It appears that the Departmental Promotion Committee clubbed the posts upto 1982 for the purposes of consideration. To say the least, this runs counter to the stand now taken by the State Government. If it is the case of the State Government that this was done in view of the instructions in the field which were supplementary, then, the similar instructions were issued by the Government of India, which was to finance the scheme. It is by now well settled that the norms regarding recruitment and promotions can be laid down either by the law made by the appropriate Legislature, or by rules made under the proviso to Article 309 of the Constitution of India, or by means of executive instructions issued under Article 73 or Article 162 of the Constitution of India. If there is a conflict between the executive instructions and the Rules made by under the proviso to Article 309, then, the said rules must prevail. But, if there is no conflict and the executive instructions are complementary or supplementary, then, both could be taken into consideration. If there is a conflict between the executive instructions and the Rules made by under the proviso to Article 309, then, the said rules must prevail. But, if there is no conflict and the executive instructions are complementary or supplementary, then, both could be taken into consideration. We do not propose to enter into the said controversy or even to decide the question as to whether the 1986 Rules govern all the appointments made after the said Rules were promulgated, or the question as to whether the 1982 or the 1986 Rules were retrospective in operation, since, in our view, taking any view of the matter, the petitioner is entitled to succeed so far as her claim is concerned. 9. It is no doubt true that the Counsel for the respondents had placed strong reliance upon the decisions of the Supreme Court in (Y. V. Rangaiah v. J. Sreenivasa Rao and others)6, A.I.R. 1983 S.C. 852 and in (P. Ganeshwar Rao others v. State of Andhra Pradesh others)7, (1988) III SVLR (L) 136. Shri Rebello, the learned Counsel appearing for the petitioner, contended that the law laid down by the Supreme Court in these decisions is not applicable to the facts and circumstances of the present case. In Rangaiah's case, the statutory rules provided that the Departmental Promotion Committee should meet every year. The law laid down by the Supreme Court in P. Ganeshwar Rao's case is based upon the words and expressions used in the rules and particularly, the word ''arising'' which is absent in the present Rule. As already observed, since we do not propose to decide the said controversy finally we will prefer to keep it open. We do not propose to deal with this aspect of the matter in any further details. 10. It appears to be an admitted position that the petitioner is duly qualified to hold the post of Mukhya Sevika as well as the promotional post of Child Development Project Officer. Shri Bharne, the learned Additional Government Advocate was fair enough to produce before us the relevant confidential reports. It further appears to be an admitted position that, at no time, any adverse remark was communicated to the petitioner. From her confidential reports, it is clear that the service career throughout was good. Shri Bharne, the learned Additional Government Advocate was fair enough to produce before us the relevant confidential reports. It further appears to be an admitted position that, at no time, any adverse remark was communicated to the petitioner. From her confidential reports, it is clear that the service career throughout was good. She is already holding the promotional post right from the year 1982 upto date, and during these years also, her service record is good. Therefore, we do not find any reason as to why she should have been excluded by the Departmental Promotion Committee, while making the recommendations. No guidelines were brought to our notice on the basis of which this gradation was made by the Departmental Promotion Committee. Under the instructions issued by the Central Government, a preference was to be given to a graduate while making appointment to the post of Child Development Project Officer. Admittedly, the petitioner is a trained graduate. On the other hand, some of the respondents are not even graduates. Therefore, taking any view of the matter, she was better qualified and was suitable for the post. It appears that all these factors which are germane for taking decision in the matter, were either not brought to the notice of the Departmental Promotion Committee or were not properly considered by it. On this short ground alone, therefore, the petitioner must succeed in this petition. 11. We are informed that a vacancy still exists in the post of Child Development Project Officer, since the respondent No. 13 Kum. Sadekar is acting as a Probation Officer though on ad-hoc basis. The petitioner is working in the said post right from the year 1982, though on ad-hoc basis, and her confidential are good. Therefore, if the petitioner is promoted to the said post, none of the appointments need to be disturbed. Even if it is otherwise necessary, the State Government can create a sup-ernumerary post to do justice to the parties concerned, because otherwise, the appointments of respondents Nos. 9 to 14 will be adversely affected and will have to be set aside which will not be fair at this stage. Therefore, the enquiry demands that, if necessary, the State of Goa should create a supernumerary post. 9 to 14 will be adversely affected and will have to be set aside which will not be fair at this stage. Therefore, the enquiry demands that, if necessary, the State of Goa should create a supernumerary post. As a necessary consequence of our finding, the petitioner will be treated as promoted to the post of Child Development Project Officer-cum-Social Welfare Officer, right from the 27th of August, 1987, i.e. the date of Order of promotion issued by the State Government. It appears from the Order dated 27th August, 1987, that the seniority of the promoted employees is fixed on the basis of their seniority in the lower post of Mukhya Sevikas. On the basis, the petitioner will be entitled to get seniority immediately after Smt. A.P. Dalvi and before Smt. S.P. Borkar. The Counsel for the respondents namely, Shri Dias and Shri Pereira, had fairly stated before us that they have no objection to the promotion of the petitioner or for fixing the proper seniority of the petitioner on the basis of her seniority in the cadre of Mukhya Sevikas. Therefore, we direct that the seniority of the petitioner should be fixed on the basis of her seniority as Mukhya Sevika in the cadre of Mukhya Sevikas, i.e. immediately below Smt. A.P. Dalvi and above Smt. S.P. Borkar. 12. Before parting with this judgment, we must take note of certain disturbing features. It is not known as to why the Departmental Promotion Committee prescribed as 7th of December, 1983 as the date of promotion for first three candidates, namely, Kum. Maria C. Mesquita, Smt. Sushila D. Amonkar and Kum. Maria de Ceu Abreu. If this was on the basis that they were already holding the said post on ad-hoc basis from 7-1-9183, then also, there is inconsistency. All of them were not holding the said post on 7-12-1983. We find no basis for this date. However, we do not propose to dwell on the said question any further, as nothing turns on the assigning of the said date, so far as the petitioner and other respondents are concerned. But we have taken note of this fact only to indicate that the conduct of the Government is neither consistent nor fair. 13. We must also take a note of another factor, namely, the appointment of respondent No. 13 Kum. But we have taken note of this fact only to indicate that the conduct of the Government is neither consistent nor fair. 13. We must also take a note of another factor, namely, the appointment of respondent No. 13 Kum. Kishori Sadekar, as Probation Officer, and that too, on ad-hoc basis right from the year 1979. It is true that the very advertisement issued in the newspaper was for an ad-hoc post and was subject to regular appointment. But, for the last nine years, she is continued on ad-hoc basis. The post, obviously is a permanent post and till today, no regular appointment is made. In our view, this whole question requires consideration. To say the least, the disturbing factor is not the appointment of A and B, but the very process of ad-hocism in the creation of the posts and the appointments. We hope that this ad-hocism will end someday, because while making ad-hoc appointments, the very guarantee contemplated in Article 16 of the Constitution of India is normally given a go by. The Supreme Court in (Rattanlal v. State of Haryana) 8, A.I.R. 1987 S.C. 478 has observed that policy of ''ad-hocism'', is not a sound personnel policy. Following such a policy for a long time will violate Article 14 and 16 of the Constitution. Supreme Court further observed that the State Government is expected to function as a model employer. 14. In the result, therefore, the writ petitions partly allowed. The petitioner stands promoted to the post of Child Development Project Officer/Social Welfare Officer under regular basis right from 27th August, 1987, and to that extent, the Order issued by the Government on 27th August, 1987-Exhibit ''G'' stands modified. The petitioner will be placed in the said list immediately after No. 7 Smt. A.P. Dalvi and above No. 8 Smt. S.P. Borkar. Her serial Number will be 8 and the numbers below it, will stand suitably modified. However, in the circumstances of the case, there will be no order as to costs. Petition partly allowed. -----