The requirement of passing the final examination in accounts for promotion to Upper Division Clerk and Selection Grade Clerk was not valid as it was not provided for in the Board's Miscellaneous Rules, 1947, which were the statutory rules governing the recruitment and conditions of service of public servants in the state.

Ram Naresh Thakur, J.

The petitioners by this writ application challenge, the ORDER :s of promotion of the respondents Nos. 3 to 100 contained in Annexures 1, 2, 7, 7/1, 7/2, 7/3 and 7/4 from Lower Division Clerks on the ground that their promotion amount to the supper-session of the petitioners

2. The petitioner no. 1 joined as a temporary Lower Division Clerk under respondent no. 2 with effect from 1.9.55 having serial no. 77 in the gradation list and was confirmed in a permanent post of Lower Division Clerk with effect from 1.2.1957. He was promoted as Upper Division Clerk with effect from 17.12.1977 in the office of the Assistant Registrar, Co-operative Societies. Buxar Circle, Buxar, District Bhojpur.

3. Petitioner no. 2 joined as a temporary Lower Division Clerk under respondent No. 2 with effect from 2.7.1976 and was confirmed in a permanent post of Lower Division Clerk with effect from 1.4.1964 and is working as such in the office of the respondent no. 2 having his serial no. 108 in the gradate on list.

4. Petitioner No.3 joined as temporary Lower Division Clerk under respondent no. 2 with effect from 2.11.1957 having serial no. 159 in the gradation list and was confirmed in a permanent post of Lower Division Clerk with effect from 1.4.1964 and is working as such under the Manager, Land Development Bank, Birpur, P.S. Birpur, District Saharsa.

5. It is said that the petitioners came to know 10th, last week of April, 1975 that there was a move not to consider the cases of these petitioners for promotion to the Upper Division Clerk or Selection Grade Clerks post by the ORDER :dated 24.1.1969 (Annexure ‘3’) on the ground that these petitioners had not passed the final examination in accounts as prescribed by the Bihar Board's Miscellaneous Rules. Thereafter it is said that these petitioners along with a few others submitted representation to the Government on several occasions. But their representations appears to have been rejected with the result that the respondent no. 3 to 64 have been promoted as Upper Division or Selection Grade Clerks from different dates. Therefore, this application has been filed to set aside the aforesaid ORDER :.

6. Learned counsel for the petitioners has argued that the Bihar Board's Miscellaneous Rule came in existence in the year 1947 before India achieved Independence. After independence under the constitution the said Bihar Board's Miscellaneous Rules were adopted by the statute. Thus rule made therein became statutory rules. Subsequently in the year 1958 revised edition of Boards Miscellaneous Rules was published with some amendments. But this Board's Miscellaneous Rules of 1958 came into existence by executive ORDER :and not by any statute. Therefore, according to him, the Board's Miscellaneous Rules 1958 can not override any provision of Board's Miscellaneous Rule of 1947. Secondly it has been argued that in the year 1980 the pasts of Lover Division Clerk and Upper Division Clerk were amalgamated and a new cadre of assistants bas been created. Therefore in the changed circumstances question of passing the departmental examination for the promotion of Upper Division Clerk and/or Section Grade Clerk does not arise at all. In course of argument the learned counsel for the petitioners did not challenge the ORDER :s by which promotions were given to Respondent Nos. 3 to 64. He simply challenged some of the amendments made in Board's Miscellaneous Rules of 1958 by which passing of final examination in accounts has been made "must" for promotion not only to posts in Upper Division requiring knowledge of accounts, but to all posts in the Upper Division. In this connection he referred to Rule 157(3)(j) of the 1958 Rules, which according to him, is not statutory rule framed under Article 309 of the Indian Constitution, hence deserves to be struck down.

In view of this clear submissions made by Shri Surojendu Mukherji appearing for the petitioners, we need not address ourselves to see the validi