D.P. Gupta, J.
1. The petitioner seeks to challenge the order passed by the Border Commissions, Rajasthan Jodhpur keeping in abeyance the temporary promotion of the petitioner to the post of Office Assistant in the Office of the Collector Jaisalmer and the order passed by the Collector Jaisalmer finally setting aside the same The petitioner, who was working as a select ion grade Upper Division Clerk in the office of the Collector, Jaisalmer was promoted to the post of Office Assistant in a temporary capacity by the order of the Collector, Jaislamer dated August 29, 1968. But on a complaint made by some other employee, the Border Commissioner Rajasthan, Jodhpur by his order dated March 3, 1969 directed that the order of the Collector, Jaislamer regarding the temporary promotion of the petitioner be kept in abeyance till further orders. The matter was alternately referred to the Board of Revenue & the Secretary of the Board by his letter dated November 12, 1971 intimated to the Collector Jaislamer the illegal promotions may be set aside and action should be taken in accordance with the Rules. In pursuance of the aforesaid letter of the Board of Revenue, the Collector, Jaisalmer by his order dated March 9, 1972 set aside his earlier order dated August 29, 1968 by which the petitioner and another person were promoted temporarily at Office Assistants There is no dispute that the petitioner was again promoted to the post of Office Assistant in a temporary capacity by the order of the Collector, Jaisalmer dated April 12, 1973. Thus the grievance of the petitioner is only in relation to the period from March 3, 1969 when the order passed by the Collector dated August 29, 1%8 regarding the temporary promotion of the petitioner on the post of Office Assistant was kept in abeyance by the Border Commissioner till farther orders, upto April 12, 1973 when the petitioner again came to be promoted in the like manner to the post of Office Assistant. The contention of the petitioner's learned Counsel is that the petitioner was the senior most ministerial official available in the Jaisalmer District at the relevant time and as two new posts of Office Assistants were created, the petitioner was naturally entitled to be considered for and promoted not one of the two newly created posts. His case further is that there was no complaint against him at all as he was admittedly the senior most ministerial servant in Jaisalmer district at that time but the complaint made by one Madanlal Kothari related to another person, namely Babulal Bhatia, who was also promoted along with the petitioner by the order of the Collector, Jaisalmer dated August 26, 1969 and was based on the ground that Madanlal was senior to Babulal. Two submissions have been advanced by learned Counsel for the petitioner before me. In the first place, it has been argued by him that the order of the Border Commissioner was without jurisdiction in as much as the Collector was the Appointing Authority in relation to the petitioner and the next higher authority was the Board of Revenue as such, the Border Commissioner could not have kept the order of promotion of the petitioner in abeyance This submission appears to be well founded, The Rajasthan Subordinate Offices Ministerial Staff Rules 1957 (hereinafter called the Rule), which govern the recruitment and promotion of ministerial staff in the subordinate offices of the State, provide that the Appointing Authority is the head of the department or such officer to whom the authority to make appointment to the ministerial staff may be delegated by the Head of the Department, with the approval of the State Government. In pursuance of the provision of Sub-rule (3) of Rule 6 the State Government or the Appointing Authority may make temporary appointment by promotion. The Collector, Jaisalmer, being the Head of the Department, was competent to promote the petitioner temporarily to the post of Office Assistant which is admittedly a ministerial staff post. Although the Rules provide that the Head of the Department 'hall be the Appointing Authority, but it dots not provide as to who would be the Head of the Department for purposes of the said Rules. But Sub-rule (g) of Rule 2 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958, defines 'Head of the Department', in relation to a Government servant, as the authority specified in Schedule 'A' appended to the said Rules. In Schedule 'A' annexed to the said Rules Collectors of Districts are included in the category of Heads of Departments' but the Border Commissioner does not find any place therein.
2. Learned Deputy Government Advocate relied upon a notification issued by the State Government dated June 10, 1965 in respect of the powers and duties of the Border Commissioner and submitted on the basis of the aforesaid notification that the Border Commissioner was also empowered to appoint ministerial employees in the Border Districts of Rajasthan. The notification dated June 10, 1965, though passed by the order of the Governor of the State is yet in the nature of executive instructions issued in pursuance of the executive power of the State under Article 162 of the Constitution. There can be no doubt that the executive power of the State under Article 162 of the Constitution extends to all such matters which are under the Legislative competence of the State Legislature It is also true that public services are matters in respect of which the Legislature of the State has the power to make Saws as the same have been specified in entry 41 of list II of the VII Schedule of the Constitution of India. But in respect of such matters relating to which the Governor of the State has already made Rules under the proviso to Article 309 of the Constitution, the State Government is not empowered to issue executive instructions. Thus executive instructions cannot over ride the provisions of Rules made under the proviso to Article 309 of the Constitution. Of course it is not obligatory on the State Legislature to make laws in respect of all matters to which the Legislature competence of such Legislature extends and it is equally true that it is not obligatory on the Governor of a State to make Rules under the proviso to Article 309 of the Constitution in respect of all matters relating to recruitment to public set vices, even if the competent Legislature has not made laws on the subject. But as I have already pointed out above, if the Governor of a State has made Rules under the proviso to Article 309 of the Constitution in respect of recruitment to specified classes of public services, then a different provision cannot be made by the State Government in respect of the matters as are covered by such Rules merely by issuing executive instruction in pursuance of its power under Article 162 of the Constitution. I am fortified in this view by the decision of the Supreme Court, in B.N. Nagarajan and Ors. v. State of Mysore and Ors. 0043/1966 : (1967)ILLJ698SC wherein their Lordships observed,:.it is not necessary that there must be a law already in existence before the executive is entitled to function and that the powers of the executive are limited merely to the carrying; out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. It is hardly necessary to mention that of there is a statutory rule or an Act on the matter, the executive must abide by that act or rule, and it cannot in exercise of the executive power under Article 162 of the Constitution ignore to act contrary to that rule or act.
3. The notification issued by the State Government on June 10, 1965 cannot be questioned in respect of powers conferred on the Border Commissioner to supervise the actions of the Collectors of the Border Districts But so far as the power of appointment to public services is concerned, the executive instructions issued by the Governor on June 10, 1965 may not have the effect of overriding the Rules made by the Governor under the proviso to Article 309 of the Constitution. Thus, the Border Commissioner had no power to direct that the order of temporary promotion of the petitioner passed by the Collector be kept in abeyance. The next higher authority mentioned in Schedule B annexed to the Rajasthan Civil Services (Classification Control & Appeal) Rules, 1958, in respect of the ministerial staff is the Board of Revenue and until necessary amendment is introduced in the provisions of the aforesaid Rules and the Scheduler annexed there to, only the next higher authority could amend, alter or rescind the order pasted by the Collector, Jaisalmer on August 29, 1968. Therefore, the order of the Border Commissioner dated March 3, 1969 can have no effect so fir as the quest on of temporary promotion of the petitioner to the post of Office Assistant is concerned.
4. The other contention advanced by learned Counsel for the petitioner is that the Board of Revenue by its order dated November 12, 1971 did not set aside the temporary promotion of the petitioner on the post of Office Assistant. More over, the Board of Revenue also did not direct the Collector to set aside the temporary promotion of the petitioner, in as much as the petitioner was the senior most eligible official, who could be promoted to the post of Office Assistant. It was probably on account of some misunderstanding that the Collector thought that the Board of Revenue desired that the order of promotion of the petitioner should be set aside. Be that as it may, the Collector, without any doubt, by his earlier order dated March 9, 1972 set aside his earlier order dated August 29, 1968 by which the petitioner on account of the order of the Collector dated March 9, 1972? It is well settled that a temporary or officiating promotion to a higher post does not give the employee concerned any right to the post and the reversion of person officiating on a higher post to his substantive post without anything more is not actionable. As such the order passed by the Collector dated March 9, 1972 cannot be considered to be one under Clause (2) of Article 311 of the Constitution, because in the present case, the reversion of selection grade Upper Division Clerk was not brought about by way of penalty. It is not even the case of the petitioner that any body else was appointed as Office Assistant while the petitioner was reverted to his substantive post of Upper Division Clerk or even thereafter. As a matter of fact the petitioner himself was again promoted by the order of the Collector dated April 12, 1973. The order of revers on of the petitioner to his substantive post does not entail or provide for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion. It is upto the appointing auth authority to fill in vacant posts by making officiating or temporary appointments in respect there of The Appointing Authority may not like to make officiating appointments in certain circumstances & that would not afford any cause of action to the petitioner, as it was not obligatory for the Collector to make officiating promotion to the post of office Assistant nor any legal right of the petitioner was infringed when he was reverted to his substantive post of a selection grade upper Division Clerk in the present case . In Union of India and Anr. v. Gajinder Singh etc. : 3SCR660 it was observed by their Lordships of the S.C. that;
Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character & in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that h is terminable at any time The Government servant so appointed acquires no right to the post..
Learned Counsel was unable to that that any rule or law has been violated by the Collector while terminating the officiating appointment. In this view of the matter, I am unable to hold that the order of the Collector, Jaisalmer dated March 9, 1972 was without any authority or was in any manner invalid or illegal.
5. The last question that arises in this case is as to what relief is the petitioner entitled. The petitioner has no doubt again been promoted as Office Assistant on April 12 1973 but he was entitled to continue as such upto March 9, 1972 when such officiating appointment was lawfully terminated by the order of the Collector. In this view of the matter, the petitioner is entitled to get the difference of his emoluments for the period between March 3 J969 when the order of his temporary promotion was directed to be kept in abeyance by the Border Commissioner and March 9, 1972 when the officiating appointment came to an end by a lawful order passed by the Collector Jaislamer.
6. The writ petition is accordingly allowed. The order passed by the Border Commissioner dated March 3, 1969 is set aside. The petitioner should be deemed to have continued to hold the post of Office Assistant from August 29, 1968 to March 9, 1972 in an officiating capacity. The petitioner is also entitled to get the difference of his emoluments from March 3, 1969 to March 9, 1972 on the basis as if he continued to hold the post of Office Assistant in an officiating capacity upto March 9, 1972. The parties are, however, left to bear their own costs.