C.S.P. Singh, J. - (1.) The seven petitioners in this writ petition are Assistant Development Officers (Panchayat) They challenge a circular instruction of the Secretary-Commissioner Community Development U. P. dated 27th September, 1972. By this letter, the Secretary laid down the Policy for appointment of Block Development Officers in 197 blocks in the State. By clause 1 of this circular, recruitment to these posts of Block Development Officers was to be made the in equal proportion from Assistant Development Officers (Agriculture) (Cooperative) ; (Panchayat) ; (Minor Irrigation) and (women Section,) Clause 2 of the circular directed that while making selection, ten per cent of the seats was to be reserved for scheduled castes. Clause 3 laid down the principle on the basis of which seniority was to be determined for making the selection. The letter indicated that the selection was to be made on the basis of seniority-cum-fitness.
(2.) Counsel for the petitioners has urged that the circular is in direct contravention of Rules 5, 10 and 20 of the State Development Service (Gazetted) Rules, 1972 issued by the Governor ; and secondly that the fixation of quotas for selection to the post and the principle laid down for determination of the seniority in the circular letter are discriminatory and hit by Articles 14 and 16 of the Constitution, In as much as, I am of the view that it is possible to give relief on the basis of the first contention I do not think it appropriate to decide the constitutional point.
(3.) The State Development Service (Gazetted) Rules, 1972 have been filed as Annexure "1" to the counter-affidavit. The preamble to these Rules recite that they were being framed in exercise of powers conferred by proviso to Article 309 of the Constitution and were being made in supersession of all existing rules and orders on the subject. These Rules are expressed to have been made in the name of the Governor of Uttar Pradesh and are labelled as "Provisional Rules". A covering letter was issued on 30th July, 1972 by the Secretary to as many as six departmental heads. The letter states that final shape has not yet been given to the service rules and till this is done, action should be taken in accordance with the provisional rules. Counsel for the respondents contends that these rules are only draft rules and do not have any statutory force and this being so, the petitioners can. not claim any justiciable right based on them. I am unable to agree with this contention. The rules are expressed in the name of the Governor, and state that they have been made by him in the exercise of power conferred upon him by Article 309 of the Constitution. Rule 1 makes these rules effective from the date of the notification. The date of the notification is given as "21-3-1972". All the requirements of a Rule under Article 309 of the Constitution are present in the document. There is nothing in Article 309 which makes it incumbent upon the Governor to adopt any particular procedure, for making statutory rules under Article 309 of the Constitution. This being so, the rules have to be held to be one under Article 309 of the Constitution. The use of the words "provisional rules" in the notification is indicative of the fact that further rules on the subject are to be followed. These words do not warrant the contention raised on behalf of the respondents that the rules are draft rules. It is contended that till such time that these rules are not published, they do not have legal efficacy. Publication does not necessary mean publication in the Official Gazette, unless there is some statutory provision which makes it incumbent that this be so. Article 309 of the Constitution does not insist on publication in the Official Gazette. Although, it may be desirable that rules framed under Article 309 of the Constitution may be published in the Official Gazette, but the mere fact that this is not done would not take away the binding force of a rule issued under Article 309 of the Constitution, in case all the other requirements of the Article are satisfied, which as has been seen has been done in the present case. The fact that there was publication otherwise does not also admit of doubt. By his letter of 31st March, 1972, the Secretary circulated these rules to six departmental heads. The departmental heads to whom the rules were sent, were the relevant authorities in respect of the particular service. This being so, there was publication of the rules. All the officers who were to be effected by the rules had knowledge of these rules, as relevant extracts of the rules have been filed along with the writ petition. It does not admit of doubt that the policy of appointment laid down in circular letter runs contrary to Rules 5, 10 and 20 of the Service Rules framed under Article 309 of the Constitution. The circular letter is at best an executive instruction and is ineffective in view of statutory rules on the subject. The result is that this petition succeeds and the respondents are directed not to give effect to the impugned circular.;