Banerjee, J. - (1.) This appeal is directed against a judgment of the single judge discharging the Rule. The appellant petitioners appointed as Mohurrer in the Collectorate of 24-Parganas under the respondent No. 1, respective dates of appointment being 13th August, 1975 and 1st October, 1975. It is stated that post of Mohurrier in the said Collectorate is in Class III service and wherein there '.are other higher grade posts one of such post being the post of Lower Division Clerk. Scale of pay of Mohurrier is from Rs. 180-5-245-7-350 and the post of Lower Division Clerk carries a pay scale of Rs. 230-5-275-7 1/2-365-425 and the posts of Lower Division Clerk, according to the petitioner, are promotive posts from the said posts of Mohurries of Class III service. It is alleged that the post of Lower Division Clerk is a cadre post different from the post of the Typist and Clerk-typist in Class III service. The educational qualifications required for recruitment to the posts of Mohurrier and the Lower Division Clerk in Class III Service are School Final or Higher Secondary Certificate and it is alleged that there was never have been any Rule requiring any candidate for the said post, the knowledge of typing at a speed of 30 words per minute. It is not necessary for us to go into other facts stated in the petition In order to decide the question raised before us in this appeal. It must be stated that some statutory Rules have been annexed with the petition. We will refer only to the Statutory Rules made under Article 309 of the Constitution of India providing for the qualifications for the promotion of Mohurries and Tehsildars to the post of Lower Division Clerk . In the rules as framed was further amended by notification dated 24th September, 1974, namely, the West Bengal Service (provision of promotion prospects of Class IV employees) Rules, 1974 wherein Rule 2 as amended lays down as follows : "2. Notwithstanding anything contained in any Rules regulating recruitment to the clerical services in the Secretariat and certain other offices of the Government of West Bengal 10 per cent of L. D C. posts In every office shall be kept reserved for being filled up by promotion from Class IV as also from eligible Class III employees of that office whose minimum educational qualification is as 'Pass in S. F. or H. Secondary or equivalent examination and who have rendered not less than a period of five years continuous service, whether as a Permt. status, quasi permanent or temporary Government servant in that office". It appears under the said Rules the minimum qualification for promotion to Class III post from Class IV to the extent of 10 per cent in every office is that (1) as 'pass in School Final or Higher Secondary or equivalent examination ; (2) that the applicant mast have rendered not less than continuous 5 years service, whether as a permanent, quasi permanent or temporary Government servant in that office, or in other words 10 per cent of those persons may be eligible for promotion in Class III, that is Lower Division Clerk Post from the post of Tehsildar or Muhurriers in Class IV It appears that by an Executive order issued by the Additional District Magistrate (General), 24-Parganas dated 15th June, 1978 apart from the educational qualification required it was stated that the Muhurriers of the office will be promoted to the temporary posts of Lower Division Clerks who possess a speed in typing in English at the rate of 30 words per minute.
(2.) Mr. Biman Kanti Bose, learned Advocate on behalf of the appellant contended that this Circular in so far as it lays down the speed in typing in English is contrary to the Rules framed under Article 309 of the Constitution of India. Mr. Sircar on behalf of the respondents, however, contended in view of the circular in Annexure 'A' it was stated that the selection and promotion to higher grade of Class III and Class IV services should be on the basis of seniority in the case of the Government servant. But it was further provided that if there are something against the Government servant, as enumerated in Annexure 'A', that will be considered at the time of appointment. It was made clear that where the Rules regulating the recruitment to any of Class III or Class IV services or post require the passing of any academical, departmental or other examinations that condition will have to be followed. In the present case, as we have seen under the Statutory Rules framed under Article 309 of the Constitution for promotion to Class III post from the Post of Muhurrirs' post what is necessary minimum educational qualification is passing School Final or Higher Secondary, or equivalent examinations and five(5) years continuous service in that department either as a permanent, quasi permanent or temporary Government servant. No other qualification has been laid down in the statutory rules. Therefore, in our opinion the Additional qualification for the promotive post in Class. III as contained in the memo letter dated 15th June, 1978 issued by the Additional District Magistrate (General), 24-Parganas must be said to be contrary to the statutory Rules framed under Article 309 of the Constitution of India In our opinion, in view of the statutory Rules framed on 20th September, 1974 the respondents cannot take advantage of the rule 65 of the Board's Miscellaneous Rules. The said Rules are administrative orders passed by the Board of Revenue. In view of the Statutory Rules any Administrative order contrary to the said Statutory Rule cannot be given effect to. Therefore, in our opinion, this memo letter dated the 15th June, 1978 by which it has been seated that the Lower Division Clerk posts to be filled in by the Muburrers must, apart from the educational qualification as stated in the Statutory Rules, possess a speed in typing in English at the rate of 30 words per minute cannot be sustained and must therefore, be quashed which we hereby do.
(3.) The appeal, therefore, succeeds and the order dated 15th June, 1978 asking the Muhurries to sit for the examination for typing test must be set aside and cannot be given effect to. We make it quite clear that only Statutory Rules as contained in the Notification dated 24th September, 1974 must prevail for the purpose of promotion to the promotive post of Class IV employees to the post of Lower Division Clerk in every office to the extent of 10 per cent to be kept reserved for being filled up by promotion without asking the said employees to appear for the typing test. We, therefore, set aside the Hon'ble Single Judge's order and make the Rule absolute. This order however, is without prejudice to the lights of the respondents to amend the Rule if they so like.;