( 1 ) HEARD learned Counsels for the parties.

( 2 ) THE petitioners, in all 25 in number, filed this Special Civil Application and claim has been made that the action of the respondents not to consider the petitioners for promotion to the cadre carrying a pay scale of Rs. 425-700, be declared to be illegal, null and void.

( 3 ) THE petitioners were originally appointed in the cadre of Surveyor/clerk between the period 15th January 1951 to 1st August 1955, in the then State of saurashtra. The petitioners have passed the sub-service Departmental Examination and they were promoted to the post of Maintenance Surveyors. The petitioners have given out in the writ petition that the present pay scales of the post of Surveyor/ clerk and Maintenance Surveyor are Rs. 290-489 and Rs. 380-560 respectively. All the service conditions of the petitioners were to be governed by the Rules and regulations framed by the State of Saurashtra from time to time. The petitioners have come up with the case that at the time of their appointment, the Rules for appointment and promotion were not framed by the State of Saurashtra but the appointment and promotions were governed by the provisions of the Manual. Chapter 9 of the Manual deals with the Rules for appointment, promotion etc. of the District inspectors and members of the Land Records and staff subordinate to them. Under these Rules, the criteria for promotion to the higher grade was according to the seniority of the employee as shown in the gradation list of next lower post. These rules further provide for a condition on the employee who is selected for promotion to the higher post to pass the sub-service Departmental Examination within a period of three years from the date of enlistment and confirmation on the promotional post would be subject to passing of the aforesaid examination.

( 4 ) IN the year 1956, the then Raj Pramukh of the State of Saurashtra framed rules known as Saurashtra Civil Services (Classification and Recruitment) Rules, 1956 in exercise of the powers conferred by proviso to Art. 309 of the Constitution of India. The relevant provisions from those Rules have been reproduced by the petitioners in para 2. 3 of the petition and I shall make reference to the same at relevant stage in the judgment. The post of Head Clerk and/or equivalent posts having present pay scale of Rs. 425-700 were included in Appendix "d" to the aforesaid rules which provides that the post shall be filled in by promotion of clerks, surveyors, who have passed the sub-service Departmental Examination and have put in at least four years of service. The State of Saurashtra had also framed Rules for examination of subordinate services of Land Records Department under its notification dated 1-6-1954. Rule 2 of these Rules stipulates cadre of subordinate services of land Records Department which included Head Surveyors, Headquarters Assistant (Shirestedar and Head Clerks) carrying the pay scale of Rs. 425-700. Rule 3 of the rules aforesaid provides that all the employees falling under the categories mentioned in sub-rule (2) shall be required to pass the subordinate service Departmental examination within a period of three years from the date of promulgation of those rules. Rule 4 provides that all the Government employees in the subordinate services recruited after formation of the State of Saurashtra and candidates selected for appointment in subordinate services of Land Records shall be required to pass subordinate service Departmental Examination within three years from the date of issue of those Rules or the date of enlistment, whichever is later. The petitioners case is that they were governed by the aforesaid recruitment and examination Rules and as they have passed the sub-service Departmental Examination and have put more than four years of continuous service in the cadre of Clerk/surveyor, they were eligible for promotion to the post of Head Surveyor/headquarters Assistant/ head Clerk h