JUDGMENT & ORDER : 1. This is an application under Article 226 of the Constitution of the India praying for setting aside and quashing the impugned letter dated 18.05.2015, wherein P&AR department directed the New & Renewable Energy Department to immediately revoke the officiating promotion of the petitioner from Junior Engineer to Project Officer, issued by the department vide Notification No. NRE/ESTT-2/69/2012, dated 07-11-2014, and also praying for setting aside and quashing the order/Notification No. NRE/ESTT-2/69/2012, dated 30-06-2015, of the New & Renewable Energy Department, Nagaland, issued in pursuance to the said letter, wherein and whereby, the officiating promotion of the petitioner was revoked. 2. Heard Mr. C.T. Jamir, learned Sr. counsel who appeared on behalf of the petitioner and also heard Ms. V. Suokhrie, learned Addl. Senior Government Advocate who appeared on behalf of the State respondents. The facts of the case in brief is that the petitioner was appointed as Junior Engineer (Civil), Class-II Gazetted in the department of New & Renewable Energy vide Notification No. NRE/ESTT-2/67/2012(II), dated 30.08.2012, on the recommendation of the NPSC. And after having served in that post, for a little more than 2(two) years he was promoted on officiating basis to the post of Project Officer in the department, a post vacated by a person on being repatriated to his parent department. While continuing in that post, the department in pursuance of the direction the P&AR department conveyed through a letter dated 18.05.2015, issued the order/Notification No. NRE/ESTT-2/69/2012, dated 30-06-2015, thereby revoking the officiating promotion of the petitioner on the ground of non fulfillment of the guidelines or conditions contained in the P&AR Office Memorandums No. AR-3/Gen-174/2007 (Pt), dated 20-07-2009, and dated 17-12-2014. Aggrieved by the said impugned letter of P&AR department and the notification revoking his officiating promotion, the petitioner has come to this Court. 3. The learned Sr. Aggrieved by the said impugned letter of P&AR department and the notification revoking his officiating promotion, the petitioner has come to this Court. 3. The learned Sr. counsel for the petitioner submitted that the Government Office Memorandums referred to in the notification revoking the officiating promotion of the petitioner are guidelines or instructions relating to relaxation of age for promotion to higher posts vacated by persons who have either attained the age of 60 years or completed 35 years of age as per the Nagaland Retirement from Public Employment Act (2nd Amendment, 2009) which provides for retirement of employees of Government of Nagaland from service on completion of 35 years of in service or on attaining the age of 60 years, whichever is earlier. The learned Sr. counsel further submitted that on commencement of the Act many officers at higher ranks retired from service and as result, there was a lot of vacancies at the higher ranks creating a big vacuum, therefore, in order to meet the exigencies the Government issued the above stated Office Memorandums to facilitate filling up of such posts through promotion by relaxing the minimum qualifying years of service of officers who were on the feeder posts or in the line of promotion. In the case of the petitioner, the vacancy arose out of repatriation of an officer who was on deputation, therefore, the said Government Office Memorandum has no application or relevance. In addition, he also submitted that the Government Office Memorandums were meant for regular promotions and not for officiating promotions as in the case of the petitioner, therefore, the same is not applicable in the petitioner’s case. 4. Ms. V. Suokhrie, learned Addl. Sr. Government Advocate for the State respondents submitted that there is no service rule governing the employees of the department of New & Renewable Energy, therefore, the department has been following a draft service rule which has not been notified as yet. According to the learned counsel the draft service rules provides for reservation of 60% of the vacancies arising in the post of Project Officer for direct recruitment and 40% for promotion of the eligible officers in the feeder post. And for promotion to the post of Project Officer one must have served in the feeder post at least for 7(seven) years. And for promotion to the post of Project Officer one must have served in the feeder post at least for 7(seven) years. But since, the petitioner had completed only 2(two) years and 3(three) months, at the time when he was promoted on officiating basis, that too without consulting the P&AR department, the order promoting him was revoked. The learned counsel further submitted that when there is no existing rule governing the service of employees of Government departments, the draft rule can be followed in such cases. In support of her submission, the learned counsel cited the case of Chandigarh Administration vs. Usha Kheterpal Waie and Others, (2011) 9 SCC 645 , particularly para-16 and 17. The relevant portions of the judgment are given below:- “16. The Administrator of the Chandigarh Administration made the Chandigarh Educational Service (Group A) Gazetted Government Arts & Science College Rules, 2000 vide notification dated 29.3.2000 and published it in the Gazette dated 01.04.2000. The said Rules were made in consultation with the UPSC, taking note of the UGC guidelines prescribing Ph.D. degree as an eligibility criteria for the post of Principals to be filled by direct recruitment. The Rules were sent to the Central Government for being notified in the name of the President of India and were pending consideration. It is in these circumstances the appellant advertised the post in terms of the said Rules, by prescribing the educational qualification of Ph.D. for direct recruitment to the post of Principal. 17. In Abraham Jacob vs. Union of India, 1998 (4) SCC 65 , this Court held that where draft rules have been made, an administrative decision taken to make promotions in accordance with the draft rules which were to be finalized later on, was valid. In Vimal Kumari vs. State of Haryana, 1998 (4) SCC 114 , this Court held that it is open to the Government to regulate the service conditions of the employees for whom the rules were made, even if they were in their draft stage, provided there is a clear intention on the part of the Government to enforce those rules in the near future.” The learned Sr. counsel for the petitioner Mr. counsel for the petitioner Mr. C.T. Jamir submitted in reply that the draft recruitment rules may be followed only if the Government or department had taken a decision to follow the same and show their intention that such draft rule will be notified in the near future. However, in this case, there is nothing to show or indicate that the State Government or department had taken such a decision to follow the draft rule and to notify the same in the near future. Therefore, such draft rule even if it exist should not have been followed. The learned counsel in support of his submission cited the case of Vimal Kumari vs. State of Haryana and Another, reported in (1998) 4 SCC 114 , particularly para 5, 6, 7, & 8. The relevant parts of the judgment are reproduce here below:- “5. Learned counsel for the appellant has contended that the High Court was not justified in relying upon the Draft Rules which had not been enforced and consequently the promotion to the post of Superintendent could have been regulated only on the basis of executive instructions by adopting any reasonable criteria, including "seniority" as the basis of such promotion. 6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees for whom the Rules are made, by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them. 7. In the instant case, as pointed out above, the Draft Rules were prepared in 1983. 7. In the instant case, as pointed out above, the Draft Rules were prepared in 1983. They have been lying in the nascent state since t hen. In the meantime, many promotions, including that of the appellant were made on the basis of `seniority' which, in the absence of any Rule made under Article 309, could be legally adopted as the criteria for making promotion on the post of Superintendent could not have been displaced by the Draft Rules and the High Court could not have invoked any provision of those Draft Rules which had been lying frozen at their embryonic stage for more than ten years. 8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the "Draft Rules" prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation why the Rules, thought prepared in 1983, have not been notified for the long period of more than a decade. The delay, or, rather inaction, is startling.” 5. The learned counsel further submitted that the submission of the learned counsel for the respondents that in matters relating to promotion in the department the same has to be routed through P&AR department is not correct as per the answer given by the department of P&AR department on a query made through RTI. In support of his submission, the learned counsel drew my attention to the letter of the Senior Research Officer of P&AR dated 20-07-2015 addressed to one Shri. Lhouvisier Angami which contends answers/replies to the query of the addressee. The question asked by Shri. Lhouvisier Angami in para-1 of his application under section 6 of the RTI Act, dated 04-07-2015, and the answer given by Sr. Research Officer, department of P&AR in para-1 of his letter 20-07-2015 are given here below:- “1. Whether the Government has a standing rule that all promotion cases be routed through P&AR if so kindly enclosed with supporting document.” 1. Research Officer, department of P&AR in para-1 of his letter 20-07-2015 are given here below:- “1. Whether the Government has a standing rule that all promotion cases be routed through P&AR if so kindly enclosed with supporting document.” 1. No, there is no such rule that all promotion cases will be routed through P&AR department except O.M. No. AR-3/Gen-174/2007 (Pt), dated 17th December, 2014.” From the above, it is confirmed that all matters pertaining to promotion are not required by rules to be routed through P&AR department. 6. It appears both from the affidavit-in-opposition filed by the respondent No. 1, 2, 3 & 4, and the submission of the learned Addl. Sr. Government Advocate that the reasons for having issued the revocation order dated 30-06-2015, as given in the order itself, seem to have been totally abundant and a new course of defence has been adopted. Because, in the revocation order dated 30-06-2015 the reason given for revoking the officiating promotion order was non fulfillment of the conditions laid in the Office Memorandums but as per the affidavit-in-opposition and submission of the learned Government Advocate it was because of non completion of 7(seven) years period of service as required in the draft service rule of the department. This change of course of defence has rendered the reason given in the order/notification No. NRE/ESTT-2/69/2012, dated 30-06-2015, revoking the officiating promotion of the petitioner void and redundant. 7. The two judgments of the Hon’ble Supreme Court submitted by both the learned counsels has made it abundantly clear that in the absence of service rule governing service conditions of Government employees, a draft rule can be followed provided the following conditions are fulfilled:- (a) that there is an intention of the Government or department to publish the draft rule in the near future. (b) that there is a decision of the Government or department to follow the draft rule in the interregnum. Therefore, it is not only the existence of draft rule perse which gives the Government or department license to follow such rule but certain conditions as stated above has also to be fulfilled first. (b) that there is a decision of the Government or department to follow the draft rule in the interregnum. Therefore, it is not only the existence of draft rule perse which gives the Government or department license to follow such rule but certain conditions as stated above has also to be fulfilled first. In this case, the draft rule if there is any had not been filed by the respondents and there is nothing to show that there is a decision of the Government to follow the draft rule in the interregnum and the Government or department has the intention to publish the same in the near future. Under such circumstances, I am constrained to conclude that both, the impugned letter and the order/notification were issued, either on the misconception of the Government Office Memorandums stated above or on the mere presumption that a draft rule exist with such conditions fulfilled, as stated above. To make it more clear, even if, one is to assumed that such draft rules exist the same cannot be followed in the case of the petitioner for the reasons stated above. 8. Further, the submission of the learned counsel for the respondents that permission is required to be taken from the P&AR department for promotion or all promotion matters are required to be routed through P&AR department also appears to have been set at nought by the reply given on behalf of the department, by Sr. Research Officer to the queries under RTI. 9. It may not be out of place to mention here that Director of New & Renewable Energy vide his letter dated 16.08.2014, 04.12.2014 and 27.05.2015 had requested the Government for regularisation of the officiating promotion of the petitioner considering the need of the department and his expertise in the field. The Director is head of the department, therefore, he is the man who is in the know of the needs of the department and the level of efficiencies of the officers and men of the department. Therefore, before writing such letters, one can safely assumed that he must have taken into account all that has been stated above and the existing rules and norms governing the service conditions of the employees of the department. But, taking no note of what he has stated in those letters, he was instead, directed to revoke the officiating promotion of the petitioner. But, taking no note of what he has stated in those letters, he was instead, directed to revoke the officiating promotion of the petitioner. Further, what the petitioner stated in his petition that two officers who came on deputation to two of the post of Project Officer were regularised while in his case his officiating promotion was revoked cannot be ignored. All these shows, either, lack of concern and interest in the affairs of the department, on the part of the concern authority, or existence of such attitude in the system which has no room for fairness, reasonableness and equality which are essential ingredients of our constitutional life. It also shows certain amount of discrimination in the way how the employees of the department are treated, particularly the petitioner, which should have been avoided. 10. Lastly, though the respondents have taken a different course of defence, it may be stated here that the reason given in the impugned order for revoking the petitioner’s promotion is not applicable in the case of the petitioner as the Office Memorandums were issued to achieve a particular objective and not in the cases like that of the petitioner in this case. In view of the above discussions, the writ petition is allowed and the impugned letter dated 18.05.2015 and the Notification dated 30-06-2015 are set aside and quashed. The petitioner, if he has been removed from the post of Project Officer should be reinstated on officiating basis and should be deemed to have continued as such.