S.K. Mal Lodha, J. - (1.)The learned single Judge of this Court has referred this writ petition to the Division Bench as according to him two questions arise for decision :
(1) Whether the petitioner is entitled to challenge the impugned order of reversion in this petition under Article 226 of the Constitution on the ground that the said order was passed in violation of Art. 14 and Art. 16 of the Constitution, and

(2) Whether the decision in Avinash Swarup Vs. State, 1974 Raj LW 584 lays down the correct law in view of the subsequent decision of the Supreme Court in Rajkumar Vs. Union of India, AIR 1975 SC 1116 : 1975 Lab IC 669 .

(2.)The petitioner Guman Singh filed a writ petition under Art. 226 of the Constitution challenging the order Annexure 12 dated Oct. 9. 1975 passed by the State Government by which the petitioner who was working as Assistant District Supply Officer in the Food and Civil Supplies Department ("Supplies Department" herein) was sent back to the post of Stenographer in the Office of the Director. Technical Education, Jodhpur and respondents Nos. 3 to 17 were absorbed as Assistant District Supply Officers in the Rajasthan Food and Civil Supplies Subordinate Service.
(3.)The material facts are these: The petitioner was appointed as a lower division clerk in the Education Department in 1957. He was promoted as an upper division clerk in 1959. He was appointed as Stenographer in the office of the Director Technical Education, Rajasthan Jaipur. He was confirmed on the said post with effect from Aug. 19, 1960 by order Annexure 1 dated Oct. 24, 1963. On July 25, 1964 the Government invited applications for the appointment to fifty posts of Enforcement Officers and fifty posts of Enforcement Inspectors in the office of the Supplies Department. He submitted an application for appointment on the post of Enforcement Officer. By order Annexure 2 dated Nov. 26, 1964, he was appointed as Enforcement Officer on probation for six months. By order dated June 11, 1968 he was promoted as Area Supply Officer. It appears that by order Annexure 6 he was promoted on the post of Assistant District Supply Officer The Government required the petitioner to exercise his option as to whether he would like to remain in the Civil Supplies Office and the petitioner by his letter Annexure 7 dated Oct. 17, 1970 opted being absorbed on the post on permanent basis in the Civil Supplies Department. In Harinarain Sainik Vs. State of Rajasthan, Civil Misc. Writ Petn. No. 683 of 1967, decided on Sept. 14, 1970 , it was held that the appointment made on the post of Enforcement Officer in the Supplies Department in pursuance of the order dated July 25, 1964 had not been made in accordance with the provisions of the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960 and were thus invalid. After the decision in Harinarain Sainik's case (supra) the Government of Rajasthan framed the Rajasthan Food and Civil Supplies Subordinate Service (Initial Constitution and Emergency Recruitment) Rules 1973, which will hereinafter be referred to as "the 1973 Rules" to provide for the initial constitution and the emergency recruitment to the posts in the Rajasthan Food and Civil Supplies Subordinate Service. These Rules were published in the Rajasthan Gazette dated June 7, 1973. The posts of Enforcement Officer. Area Supply Officer and Assistant District Supply Officer were included in the Rajasthan Food and Civil Supplies Subordinate Service which was sought to be constituted under the 1973 Rules. Rule 5 is as under:-
"5. Notwithstanding anything contained in the Rajasthan Subordinate Services (Recruitment and other Conditions) Rules, 1960. the first recruitment to the Service shall be made in each category of posts out of all persons who have on the date of commencement of these Rules been continuously holding the Post of Enforcement Inspectors. Enforcement Officers, Quality Inspectors, Area Supply Officers, Assistant District Supply Officers in ad hoc officiating or temporary capacity for a period of 6 months before 1-1-1973 and who are adjudged suitable for such posts after screening by a Committee consisting of the following:-

1. Food Commissioner.

2. Special Secretary to Govt , Department of Personnel or his representative not below the rank of a Dy. Secretary to Govt.

3. Addl, Food Commissioner.
Provided that-
(i) such persons possess the qualifications prescribed on the basis of which the persons were selected for ad hoc/officiating/temporary appointment;

(ii) persons who have been holding such posts continuously before 1-1-1957 need not possess such qualifications.

(iii) that except for the post on which a person was initially appointed in the Food & Civil Supplies Department, he shall not be entitled for screening on such higher post on which he may have been appointed in ad hoc or officiating capacity if his screening on the higher post involves supersession of any senior person without any default on the part of latter. Seniority for this purpose will be reckoned according to date of continuous officiating appointment to the post."
The 1973 Rules remained in force up to Dec. 31, 1973. These Rules lapsed thereafter. Before Dec. 31, 1973 no order appointing any person to the service was made. By notification dated Dec. 21, 1974. publisher in the Rajasthan Gazette dated Feb. 20, 1975 the Government promulgated the Rajasthan Food and Civil Supply Subordinate Service Rules. 1974 (for short "the Rules of 1974"), in order to make provision for regulating the recruitment to the posts in and the conditions of service of persons appointed to Rajasthan Food and Civil Supplies Subordinate Service. The 1974 Rules did not contain any provision with regard to the initial constitution of the service and only provided for future recruitment to the Service by direct recruitment i. e. by appointment. Rule 37 of the Rules of 1974 is as follows:-
"37. Repeal and Saving- All rules and orders in relation to matters covered by these rules and in force immediately before the commencement of these rules are hereby repealed:

Provided that any action taken under the rules and orders so superseded shall be deemed to have been taken under the provisions of these rules:

Provided further that any action taken to complete the first recruitment under Rule 5 of the Rajasthan Food and Civil Supplies Subordinate Service (Initial Constitution and Emergency Recruitment) Rules, 1973 shall be deemed to have taken under these rules."
This rule provided that any action taken to complete the first recruitment under Rule 5 of the 1973 Rules, shall be deemed to have been taken under the provisions of the 1974 Rules. Thereafter the order Annexure 12 dated Oct. 9, 1975 was passed by which the petitioner and three other officers who were working as Assistant District Supply Officer in the Food and Civil Supplies Department were sent back to the parent department with immediate effect on the ground that they had not been adjudged suitable by the Screening Committee constituted under the 1973 Rules. On the same day i. e. on Oct. 9, 1975 another order Annexure 13 was passed by which 17 persons including respondents Nos. 3 to 17 were adjudged suitable for the post of Assistant District Supply Officer by the Screening Committee and were appointed as Assistant District Supply Officers under Rule 6 of 1973 Rules and Rule 5 (b) of the 1974 Rules. The petitioner filed the writ petition for quashing, inter alia, the orders Annexure 12 and Annexure 13 by which he was ordered to be reverted to his parent department and respondents Nos. 3 to 13 were appointed under Rule 6 of the Rules of 1973 to the posts of the Assistant District Supply Officer. In the original writ petition the orders Annexure 12 and Annexure 13 were challenged inter alia on the ground that the 1973 Rules had expired on Dec. 31, 1973 and so no action could be taken it pursuance of them after the expiry of the 1973 Rules and so the aforesaid orders were illegal and void.