JUDGMENT :

B.S. Chauhan, C.J. - This Writ Petition has been filed for quashing the Order Dated 4.10.2004 (Annex.-8) by which the Petitioner has been reverted from the post of Junior Clerk to the post of Daftari (Class IV).

2. The facts and circumstances giving rise to this case are that the Petitioner was appointed in a regular cadre as Daftari (Class-IV) in district judgeship of Kandhamal-Boudh in-December, 1981. The District Judge, Kandhamal-Boudh by letter dated 1.6.2002 asked the other Judicial Officers to submit list of Class IV employees who were eligible for promotion to Class III cadre in terms of resolution issued by P & S Department No. 7427/GEN. dated 6.4.1966 (hereinafter called 'the Resolution dated 6.4.1966') which provided 121/2 % reservation for Class IV employees to the vacancies in Class III. In response to the same, the Judicial Officers submitted a list of eligible candidates and in all candidature of 11 candidates was considered. Seven vacancies were filled up offering appointment to Class IV employees on the posts of Junior Clerk and they were asked to join vide letter dated*27.6.2002 (Annex.-5). Subsequently some complaints were received by this Court on administrative side and the Administrative Judge of the district conducted an inquiry suo motu and held that the selection had been made in accordance with law. At a later stage an inspection was made by another Administrative Judge and it was found that the appointments of various persons had been made without following any procedure prescribed by law including the present Petitioner. Several Class IV employees had been promoted to Class III posts illegally without holding interview and written examination and without adjudging their suitability. They had been promoted by adopting pick and choose method. The direct appointment of lady stenographers was made without following the procedure prescribed under law and without advertisement of the vacancies. As a consequence thereof, the District Judge issued show cause dated 21.8.2004 (Annex.-6) to the Petitioner as to why his promotion be not declared illegal and he should not be reverted to Class IV post. Petitioner filed a reply to the said show-cause on 30.8.2004 (Annex.-7). After considering the same he was reverted to Class IV post vide Order Dated 4.10.2004. Hence this petition.

3. Mr. G.A.R. Dora, Learned Senior Counsel for the Petitioner has submitted that the selection was held strictly in terms of the aforesaid Resolution dated 6.4.1966. Thus, no fault can be found with the selection process. The District Judge, who had made the appointment also faced the Departmental Proceeding on these charges. However, subsequently the proceedings initiated against him were dropped. Therefore, the Petitioner could not have been reverted. The Writ Petition deserves to be allowed.

4. On the other hand, Mr. P.K. Khuntia, Learned Additional Government Advocate has vehemently opposed the petition contending that large number of identical petitions have already been dismissed by this Bench. Seven posts could not be filled by promotion as it exceeded the quota, even if the Resolution dated 6.4.1966 is made applicable. Thus, the Resolution dated 6.4.1966 is not applicable at all. Appointments are to be made under the provisions of the Orissa District & Subordinate Courts Ministerial Services (Method of Recruitment and Conditions of Service) Rules, 1969 (hereinafter referred to as "1969 Rules") and the said Rules do not contain any provision to fill up the post of Junior Clerk by promotion of Class IV employees. Even if the Resolution dated 6.4.1966 had been adopted by the High Court it stood impliedly repealed by the 1969 Rules. Therefore, the petition is liable to be dismissed.

5. We have considered the rival submissions of the Learned Counsel for the parties and perused the record.

6. It is settled legal proposition that executive instruction cannot override the statutory Rules.

7. A Constitution Bench of the Hon'ble Suprem