IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.985 of 2005 LAKHANDEO PRASAD & ORS Versus THE STATE OF BIHAR & ORS ----------- For the appellants : Mr. Ganesh Prasad Singh Senior Advocate with Mr. Sanjay Kumar For the State : Mr. Piyush Lal JC to AAG III For the BPSC : Mr. Sanjay Pandey --- O R D E R 3. 22.9.2008. Writ-petitioners-appellants, aggrieved by the order dated 19.7.2005 passed by a learned Judge in C.W.J.C.No.10475 of 2004 dismissing the writ application, have preferred this appeal under Clause 10 of the Letters Patent. Short facts, giving rise to the present appeal, are that the writ-petitioners-appellants filed writ application, inter alia, praying for issuance of a writ in the nature of mandamus commanding the respondents to promote them to the post of District Audit Officer in the Cooperative Department. The post of District Cooperative officer, we have been told, is a post within Bihar Cooperative Service Class II (Junior Branch). Rule 26 of the Bihar Cooperative Services Rules, for short „Rules‟, before its substitution by notification dated 18th of September, 1997 read as follows : „‟26.-Promotion of officers of Bihar Cooperative Service Class II (Junior Branch).- 2 Not more than 66% of Class II (Junior) posts shall be filled up by promotion of non-gazetted officers subordinate to the Registrar, Cooperative Societies including Ministerial officers of offices subordinate to the Registrar, both at the headquarters and in the mufassil who have held at least for three years a post in the pay scale, initial of which is at least Rs.160/ (pre-revised). Provides that in the case of Ministerial officers, the upper age limit for promotion shall be 40 years. Provided further that promotions in the Audit Wing shall be made only from Audit Staff. The Audit Staff will not be considered for promotion to posts in the Department, except in the Audit Wing including the posts of Lecturers in Audit Accounts in the Cooperative Training Centres.” By notification dated 18th of September, 1997, the aforesaid Rule has been substituted as follows: “ 1½¼fcgkj lgdkfjrk lsok oxZ&2 esa 25 izfr”r inksa ij fu;qfDr vjktif=r deZpkfj;ksa dh izksUufr ls fcgkj yksd lsok vk;ksx }kjk vk;ksftr lhfer izfr;ksfxrk ijh{kk ds ek/;e ls dh tk;xh rFkk ’ksÔ 75 izfr’kr inksa ij fu;qfDr fcgkj yksd lsok vk;ksx ds ek/;e ls lh/kh HkRrhZ }kjk dh tk;xh A 2½ lhfer izfr;ksfxrk ijh{kk gsrq vf/kdre vk;q 45 oÔZ gksxh A 3½ lhfer izfr;ksfxrk ijh{kk gsrq ljdkj }kjk fu/kkZfjr ikB~;dze ykxw gksxkA“ ’’’’’’”” Bihar Cooperative Services Rules has been framed by the Governor of the State in exercise of the power under Article 309 of the Constitution of India and it has been substituted by notification 3 dated 18th of September, 1997 in exercise of the said power. Mr. Ganesh Prasad Singh, Senior Advocate, appearing on behalf of the appellants, submits that the provision of Rule 26 as substituted by notification dated 18th September, 1997, shall not apply for appointment in the audit wing of the Bihar Cooperative Service Class II. In this connection, he has referred to the proviso to Rule 26 of the unamended Rule and contends that the promotion in the audit wing has to be made only from the audit staff. Reliance of Mr. Singh on a Rule, which stood prior to its substitution, is absolutely misconceived. As stated earlier, the Governor of the State, in exercise of the power under Article 309 of the Constitution of India, had substituted Rule 26 and the Rule so substituted, does not contemplate that promotion in the audit wing shall be made only from the Audit staff. This appeal is frivolous and is dismissed accordingly with cost of Rs.5000/ to be paid by the appellants to the State. ahk (C. K. Prasad) (Dr. Ravi Ranjan )