The retrospective operation of a rule framed under Article 309 of the Constitution is valid only if it does not violate Article 16 of the Constitution, which guarantees equality of opportunity in matters of employment.

Untwalia, J.

The petitioner, Shri Girija Shankar Mairh, in this case has prayed for a writ in the nature of a writ of mandamus to direct the State of Bihar (respondent no. 1) and the Secretary to the Government of Bihar, Department of Excise, Patna (respondent no. 2) to forbear from giving effect to the War Service Recruits (Pay, Pension and Seniority) Rules, 1969, a copy of which is Annexure 1 to the writ application, in so far as they affect the petitioner. It may be mentioned here that during the pendency of this writ application the said rules were susperseded and replaced by another set of rules called the War Service Recruits (Pay, Pension and Seniority) Rules, 1971. Except the changing of the word ‘or' at the end of Clause (a) of Rule 4 to 'and', word by word, the rules of 1971 are identical with those of 1969. We have, therefore, permitted the petitioner to add a prayer in this writ application for a writ of mandamus to restrain respondents 1 and 2 to forbear from giving effect to the rules of 1971.

2. The relevant facts which may be stated for the disposal of this writ application are these. The petitioner was appointed by direct recruitment as Inspector of Excise in the year 1944 and was confirmed in the post in the year 1946. In the year 1958 he was substantively promoted and confirmed in the rank of Superintendent of Excise. This is the substantive rank which he held on the date of the filing of the writ application and still holds, although subsequently he was promoted to the rank of Assistant Commissioner of Excise and then as Deputy Commissioner of Excise; but he is not confirmed in either of those posts. Shri H. E. Christensen, respondent no. 3, was in active war service from the 4th December, 1938 to the 16th, June 1946 as Nursing ORDER :ly Grade 1. Subsequently, he was appointed as Inspector of Excise on the 15th November, 1946. In the year 1954 a list was prepared in accordance with Rule 3(iii) of the rules framed by the Governor of Bihar for regulation of the recruitment of the Superintendent and Deputy Commissioner of Excise, in which list the names of 16 Inspectors of Excise, in ORDER :of preference, were mentioned. They were found fit for appointment as Superintendent of Excise in temporary leave vacancies. The petitioner's name was in serial 9 of the said list and that of respondent no. 3 in serial 13. The list was approved by the Bihar Public Service Commission. A copy of the list is Annexure 2 to the writ application. Respondent no. 3 was substantively promoted to the post of Superintendent of Excise in the year 1959 with effect from the 7th March, 1959. It is not disputed that the petitioner was confirmed to the post of Superintendent of Excise earlier than respondent no. 3.

3. On the 9th September, 1960, respondent no. 3 preferred a representation to the C0mmissioner of Excise, Bihar, wherein he claimed certain benefits of War Service under a governmental instruction known as C. P. S. 7, a copy of the relevant extracts from which is Annexure 3 to the writ application. The case of respondent no. 3 was twice placed before the Bihar Public Service Commission in the years 1966 and 1957, and the Commission held th3.t respondent no. 3 was not entitled to the War Service benefits on the basis of C. P. S 7. Notwithstanding the opinion of the Commission, the State Government decided on the 10th February, 1968 to give War Service benefits to respondent no. 3 in terms of the said C. P. S. 7. The decision was communicated to the petitioner also on the 18th November, 1968; a true copy of this decision is Annexure 4 to the writ application. By this decision respondent no. 3 was placed not only above the petitioner but also above other officers of the Excise Department. A view was expressed in Paragraph 2 of this decision that on giving War Service benefits to Shri Christensen in the rank of Inspector of Excise, his position in the gradation list would be next to Shri P K. Mitra. On that basis Shri Christen