Statutory rules made under the proviso to Art. 309 of the Constitution prevail over executive orders or departmental instructions.

ORDER :

B.J. Divan, J.

In the special petition under Art. 226 of the Constitution of India, all the 16 petitioners who have been working as "Aval Karkuns" in the Revenue Department of the State of Gujarat, have approached this High Court for a writ of mandamus against the State of Gujarat and the Collector of Ahmedabad to treat the circular at annexure C to the petition as invalid and inoperative and they have asked for an order, direction or writ, directing the Collector of Ahmedabad to forbear from acting upon or implementing the circular at annexure C. They have further prayed for an order directing the respondent No. 2, the Collector, to forbear making orders of reversion against the petitioners merely on the grounds that they have not passed Revenue Qualifying Examination.

2. The facts leading to this petition may be shortly stated. All the petitioners joined the service of the State Government as clerks in the then State of Bombay and their periods of service vary from 16 to 24 years. All the petitioners have been working as Aval Karkuns under the Collectorate of Ahmedabad in the pay scale of Rs. 145-215. As shown in the annexure A to the petition, the petitioners have been working as Aval Karkuns for periods varying from 4 to 10 years. On March 1, 1969 the Collector of Ahmedabad published the seniority list permanent clerks and in the list different ranks were assigned to the petitioners as shown in column 4 of the list annexure A to the petition. Accordingly to the petitioners, there was no rule which required that clerks should pass Revenue Qualifying Examination to be eligible for promotion to the grade of Aval Karkun. According to the petitioners, prior to 1956 the position was that the recruitment for Aval Karkuns provided for appointments by promotion to the post of Aval Karkuns from amongst clerks but the rules did not lay down passing of the Revenue Qualifying Examination as a condition for promotion. According to the petitioners, this position which prevailed before 1956 continued thereafter and even at the time of filing of this petition in 1969, the Government had not made any recruitment rule which lays down that a clerk should pass Revenue Qualifying Examination in order to qualify for promotion to the post of Aval Karkun. The recruitment rules for Aval Karkuns were revised and new rules under the proviso of Art. 309 of the Constitution of India were made on July 22, 1966 as shown in annexure B to the petition and even these rules do not provide for passing a Revenue Qualifying Examination by the clerk as a condition for promotion to Aval Karkun's post. The grievance of the petitioners is that even though there is no rule having the force of law, which requires passing of the Revenue Qualifying Examination as a condition to the promotion to the post of Aval Karkun the Collector Ahmedabad, the second respondent herein, took the view that success at the Revenue Qualifying Examination was necessary for promotion to the post of Aval Karkun. He further held the view that those persons who are already promoted to Aval Karkun's posts should not continued in the said posts if they have not passed the Revenue Qualifying Examination. In July and August, 1969, the second respondent passed orders of reversion against petitioners Nos. 9, 13, 14 and 15 reverting them to the posts of clerks from the posts of Aval Karkuns, only on the grounds that those persons had not passed the Revenue Qualifying Examination. However, because some other vacancies arose in the posts of Aval Karkuns, even petitioners Nos. 9, 13, 14 and 15 were not reverted to the posts of clerks and were continued as Aval Karkuns. The grievance of the petitioners is that the Collector of Ahmedabad was contemplating reversion from the post of Aval Karkuns of all those persons who have not passed the Revenue Qualifying Examination. According to the petitioners by the end of the month of June, 1969, 15 posts of Aval Karkuns were to come to an end and the Collect