The main legal point established in the judgment is that statutory rules prevail over executive instructions, and an executive instruction cannot substantially alter the recruitment procedure established by the statutory rules.

JUDGMENT

Kausik Chanda, J. - The writ petitioner/appellant approached the learned Single Judge with a prayer for setting aside an order dated May 3, 2012, whereby the respondent no.4 had cancelled the promotion of the petitioner as Head assistant of Bardhaman Zilla Parishad. Challenge was also thrown to the validity of an administrative instruction being memo no. 5418/PN/O/III/2a-38/03 dated November 20, 2006 issued by the Deputy Secretary to the Government of West Bengal relying upon which the order dated May 3, 2012 was issued.

2. The learned Single Judge dismissed the writ petition on the ground that the appellant was an employee of the State Government and as such the appellant should have approached the competent forum instead of 'invoking its Constitutional writ jurisdiction' of this Court. The writ petition was disposed of granting liberty to the appellant to approach the competent forum for redressal of his grievance.

3. Before us the parties were ad idem that appellant was not an employee of the State Government since he was employed under a Zilla Parishad and he could not have approached the State administrative Tribunal for redressal of his grievance. accordingly, this Court has heard out the appeal on merit.

4. The writ petitioner/appellant was appointed as a Lower Division assistant/Junior Grade assistant under the Bardhaman Zilla Parishad. For the next promotional post of Head assistant, a selection process was initiated by the staff recruitment committee of the said Zilla Parishad. an interview was held amongst nine prospective candidates. The appellant scored the highest marks of 56 out of 75 total marks. The other two candidates who were immediately below the appellant in the merit list scored 50 and 49. On the basis of performance of the prospective candidates in the interview, the Zilla Parishad promoted the appellant to the post of Head assistant by an order dated July 17, 2009, with effect from april 1, 2009.

5. as noted above, the appellant's promotion to the post of Head assistant was cancelled by the respondent no.4 by an order dated May 3, 2012, on the ground that the said promotion was made in violation of memo no. 5418/PN/O/III/2a-38/03 dated November 20, 2006. It was observed in the said memo that 75 marks were allotted for the interview without prescribing any qualifying marks. The promotion of the appellant was done on merit-cum-seniority basis whereas memo no. 5418/PN/O/III/2a-38/03 dated November 20, 2006 stipulated that a test will be conducted only for the screening of the candidates and not for determination of seniority. It was further observed that in giving promotion to the appellant, the interview was arranged 'to eliminate and determine the seniority of the prospective candidate.' The Executive Officer, Burdwan Zilla Parishad was, further, requested to conduct a written examination of prospective candidates afresh with total marks of 50 (fifty) fixing qualifying marks at 15 (fifteen), only for the screening. Seniority of promoted candidate(s) was directed to be determined on the basis of seniority in gradation list.

6. In this appeal, on July 24, 2012, an interim order was passed whereby the order of the learned Single Judge as well as the order dated May 3, 2012, were stayed till the disposal of the appeal.

7. It is undisputed before us that the appellant worked in the said promotional post of Head assistant till his superannuation. It is also not in dispute that till the last day of his service the appellant was accorded the pay scale and allowances of Head assistant. However, due to the pendency of this appeal his retiral dues have not been released treating him as Head assistant.

8. It has been submitted by Mr. arnab Ray, learned advocate for the appellant, that the administrative order dated November 20, 2006, is dehors the West Bengal Panchayat (Recruitment and Conditions of appointment of Employees of Zilla Parishad) Rules, 1997.

9. Mr. Ray argued that from the said Rules of 1997 it will b