JUDGMENT

RANGANATH MISRA, J.:—The appeals are by special leave and are directed against the decision of the Orissa High Court in an application under Article 226 of the Constitution. The Special Leave Petition seeks to challenge the same decision of the High Court. Appellants before us are teachers in the employment of the State of Orissa, while the petitioners of the special leave petition though belonging to the cadre of teachers have been serving as Sub-Inspectors of Schools also under the same State Government.

2. For the first time a set of rules under the proviso to Article 309 of the Constitution were framed by the Governor of Orissa known as the Orissa Education Service Class II (Recruitment to the School Branch) Rules, 1971 and were brought into force with effect from August 16, 1971. The service as defined in rule 3(e) covers the posts of District Inspectors of Schools, Gazetted Head Masters and Head Mistresses of Schools and Secondary Training Schools and Assistant Director of Public Instruction (Schools) and such other posts as the Government may by general or special order specify from time to time. Recruitment to the service under rule 4 was by two methods - direct, by a competitive examination and by promotion, from amongst the members of the Orissa Senior Subordinate Education Service, School Branch. Rule 5 provides the procedure for recruitment by competitive examination while rule 6 prescribes the conditions of eligibility. Rule 14 makes provision for appointment by promotion while Rule 15 provides the conditions of eligibility for it. The recruitment examination as also preparation of the list of officers to be considered for promotion are ultimately to be handled and screened respectively by the State Public Service Commission. Rule 20 makes provision for seniority between direct recruits and promotees as also inter se between respective categories. Rule 21 authorises the State Government to make any relaxation of the provisions of the Rules in respect of a class or category of persons in consultation with the Public Service Commission. That Rule also authorises the State Government after previous consultation with the Commission to take a decision that the provisions of the Rules in the matter of competitive examination may be kept in abeyance for such period as required.

3. Rule 10(2) requires that 1/3 of the vacancies have to be filled up by direct recruitment. Obviously the remaining 2/3 go to promotees.

4. Though the Rules came into force from 1971, direct recruitment had been kept in abeyance. On August 3, 1974, on the basis of the recommendations of the Fourth Pay Committee of 1974, the State Government fixed the scale of pay of Head Masters and Head Mistresses in Government schools but it was only on July 18, 1978, that the Government directed that the earlier orders should be given effect to and vacancies should be filled up.

5. In February 1979 Government sanctioned the posts and in the early part of 1980 the Departmental Promotion Committee as contemplated under the Rules met to screen the cases of deserving teachers for promotion. On June 15, 1980, steps were taken to fill up the direct recruit quota. The number of existing vacancies was taken as 195 and keeping the requirements of R. 10(2) in view steps were taken to fill up 65 vacancies by direct recruitment. On. August 5, 1981, the High Court was moved by way of a writ petition out of which the present appeals arise. But within a few days thereafter the Government issued orders appointing 158 teachers as Gazetted Head Masters in Class II Service and it was specifically indicated in the order that the appointments were made subject to availability of direct recruits.

6. In the writ petition the vires of the Rules was challenged and it was claimed that the requirement of seven years teaching experience for promotees and no such experience for direct recruits was discriminatory and to support this plea reliance was placed on the Regulations of the Bo