Sarwar Ali, J.

1. These two writ applications have been referred to the Full Bench to consider the correctness of a Bench decision of the Court in Shri Rajib Ranjan Pathak V/s. State of Bihar (C.W.J.C. 290 of 1969) decided on 28th April, 1970. In this case the Bench interpreted the State Government Circular No. 6509-A dated 12-12-1934 in relation to the determination of seniority of officers in State and Subordinate Services where more than one officer is appointed to the service at the same time. Since by virtue of the notification issued by the State Government (Notification No. 3555-3, 27/50-A dated 15-4-1950) the aforesaid notification of 1934 has the force of rules made under Article 309 of the Constitution of India, I shall refer to the said notification as the 1934 Rules.

2. Both in the State Services as well as in Subordinate services a number of posts are permanent. Temporary posts are also created from time to time which, according to exigency of the services, may be made permanent at a later stage. Appointments to permanent posts are sometimes on substantive basis, and in some cases on probation, officiating or temporary basis. The probationary and officiating appointments are of a temporary nature. Similarly so far as the temporary posts are concerned substantive appointments can be made and are, in fact sometimes made even on temporary posts. Appointments to services may be made either by direct recruitment or by promotion under the rules governing the services, or a valid governmental instruction. It is, therefore, natural that the State Government should lay down the rules or criteria for the determination of seniority to the services in these differing situations.

3. In relation to the determination of seniority the State Government framed rules of general application in 1934. These, therefore, apply where there are no special rules governing a particular, service. Where, however, there are such rules they apply and not the rules of 1934-Generalia specialibus non derogant. The 1934 Rules are as follows:

The Local Government have recently had under consideration the principles to be followed in determining the seniority of officers of the Provincial and Subordinate Services when more than one officer is appointed to a service at the same time. It has been decided that the following instructions should be observed in future: (a) Where officers are recruited by promotion and by direct appointment at the same time, the promoted officers shall take precedence over the officers directly recruited.

(b) Promoted officers shall keep the position inter se which they held in the service from which they were promoted.

(c) The decision regarding the seniority of direct recruits shall be made by the authority entitled to appoint at the time of their first appointment. In all cases such decisions shall be final.

(2) Government do hot consider it practicable to lay down definite criteria to determine the seniority of direct recruit. The following suggestions, however, are made for the guidance of departments concerned;- (a) Direct recruits at the time of their first appointment may be given an opportunity to supply any information which may be of value in determining their seniority.

(b) When direct recruits have been placed in order of merit by a Selection Board full consideration should be given to the opinion of such Board.

(c) Seniority may be determined by general condition of merit, by educational qualifications or by ago.

(d) It is not possible to give a scale showing the relative value of educational qualifications but if departments experience difficulty the advice of the Director of Public Instruction may be taken.

3. These instructions shall not apply to the Provincial Civil Service, (Judicial Branch).

4. Two other circulars both having the force of rules under Article 309 of the Constitution were issued in the year 1944. They are memo No. 2766/A dated 15-7-1944 and memo No. 322-A R. dated 9-9-1944. These ma