Judgement

ALAGIRISWAMI, J.:- This appeal filed in pursuance of special leave granted by this Court by certain officers of the Co-operative Department of the Government of Gujarat is against the judgment of the High Court of Gujart in a writ petition filed by the respondents.

2. The appellants as well as the respondents (hereinafter called petitioners) were originally servants of the State of Bombay and were allotted to the State of Gujarat on its formation on 1st May, 1960. The Petitioners alleged that they had passed all the prescribed departmental examinations as required by the rules of the State of Bombay and challenged the validity of certain orders of the Government of Gujarat. One of them was an order of May 10. 1962 which provided that persons already promoted would have to pass the examination of G. D. C. & A. within a period of three years and if they did not their increment would be stopped and if they have reached the maximum of the scale their pay would be reduced to the next lower stage until, they passed the examination. It also laid down G. D. C. & A. as a necessary qualification for promotion. Another impugned order was dated June 18. 1965 which contained rules made under the proviso to Article 309 of the Constitution. of India and laid down the qualification of G. D. C. & A. examination for promotion. They also complained against an order dated January 23, 1968 that they should draw no further increments and what had been paid to them earlier without giving effect to that order should be recovered.

3. It is unnecessary to set out the impugned orders in extenso. For the purposes of this case it is enough to say that the main grievance of the petitioners before the High Court of Gujarat was the laying down of the qualification of G. D. C. & A. for purposes of earning increments as well as for promotion. They complained that under the rules in force in the State of Bombay they were not required to pass this examination either for earning increments or for promotion and the rules and resolutions of the Government of Gujarat laying down the passing of the G.D. C & A. examination as a necessary qualification for promotion as well as earning increments contravened Section 81(6) of the Bombay Reorganisation Act. 1960 which is in pari materia with Section 115 (7) of the States Re-organisation Act. 1956. The appellants who were the respondents in the writ petition had passed the G. D. C. & A examination and therefore been promoted earlier than the respondents who were the petitioners and had therefore been impleaded as parties to the writ petition.

4. As regards the complaint about the petitioners not being allowed to get future increments till they passed the examination and reduction by one stage of persons who had reached the maximum in their grade and the recovery of the amounts which they had already drawn. they are no longer the subject matter of any grievance because the State of Gujarat have removed those grievances by Note 1 to Regulation 13(4) (iii) found in the order of the Government of Gujarat dated September 14.1967 at pages 17 to 22, of the paper book. There is a, certain amount of confusion in the records regarding this. As against the rule above referred to there is an order dated 23-1-1968 ordering recovery. But it was made clear during the course of the arguments that no recovery will be made. We are, therefore, concerned only with the question of the validity of the orders of the Government in so far as they laid down the qualification of G. D. C. & A. as one of the requisites for promotion to higher posts.

5. Before the High Court it was contended on behalf of the State of Gujarat that immediately before the "appointed day" the petitioners were governed by the 1939 Bombay Rules of which Note to Rule 6-A provided the passing of the G.D.C.& A as a qualification for promotion. On the ground that what was produced was a typed compilation consisting of some circular letters and rules of the Co-operative De