JUDGMENT V. Balakrishna Eradi, J. 1. The points arising in these writ petitions being identical they have been heard together at the request of the counsel appearing on both sides and are being disposed of under this common judgment. 2. The petitioners in these two writ petitions were appointed by direct recruitment as Warders in the Jails Department of the State Government on the 1st of January 1958. Both of them were provisionally promoted to the category of Assistant Jailors, Grade II by Order No. Ei-8880/ 68(i) passed by the Inspector-General of Prisons, Kerala on 27th April 1968 copies of which have been marked as Ext. P-1, in each of the writ petitions. Ever since then, they were continuously occupying the said higher posts, though on a provisional basis, till September 1969 when under two separate orders, dated 7th September 1969 and 10th September 1969 respectively (copies of which have been produced and marked as Ext. P-5 in each case) they were ordered to be reverted as Warders while retaining in the category of Assistant Jailors respondents 3 and 4 in each of the writ petitions who had been promoted to the said higher category only long after the promotion of the two petitioners. The petitioners challenge the validity of the orders of reversion evidenced by Ext. P-5 contending that they are violative of Articles 14 and 16 of the Constitution and also on the ground that the retention in the category of Assistant Jailors of respondents 3 and 4 who do not possess the jail officer's test qualification and are therefore stated to be ineligible for appointment to the said category of posts is contrary to rule 67 of the Kerala Prisons Rules, 1958. 3. 3. In the counter-affidavit filed on behalf of the State Government the impugned orders are sought to be supported by submitting that the petitioners happened to be promoted from the category of Warders to that of Assistant Jailors earlier than respondents 3 and 4 by reason of the fact that the petitioners possessed the jail officer's test qualification which was at that time considered necessary for entitling a person to promotion to the said higher category and that subsequently it was discovered that in view of the coming into force of the Special Rules for the Kerala Jail Subordinate Service (hereinafter referred to in short as the Special Rules) the insistence on the possession of the Jail Officer's test qualification prescribed under rule 67 of the Kerala Prisons Rules, 1958 as a condition for promotion was not correct or proper since the Special Rules must be taken to have superseded the said provision contained in the Kerala Prisons Rules. In the light of this view taken by the Government, it is stated that instructions were issued by the Government to the Inspector-General of Prisons to review all the provisional promotions and that it is as a result of the said review that the petitioners have been ordered to be reverted. 4. Counsel appearing for the petitioners contended that the plea put forward by respondents 1 and 2 in the counter-affidavit that by reason of the coming into force of the. Special Rules the provisions of rule 67 of the Kerala Prisons Rules became superseded and inoperative is not sustainable. In my opinion this argument of the petitioners counsel has to be accepted as correct. The Kerala Prisons Rules, 1958 have been framed by the State Government in the exercise of the powers conferred by section 59 of the Travancore-Cochin Prisons Act 1950 (Act XVIII of 1950) and also section 59 of Central Act IX of 1894. The Travancore-Cochin enactment referred to above is a post-constitution enactment and section 59 (10) of the said act expressly empowers the State Government to make rules for the government of prisons, and for the appointment, guidance, control, punishment, and dismissal of all officers appointed under this Act. The appointment of Assistant Jailors is provided for under section 20 of the said Act. The appointment of Assistant Jailors is provided for under section 20 of the said Act. Chapter VI of the Kerala Prisons Rules deals with the constitution of the subordinate establishment of the Jails Department and it is in that Chapter that rule 67 occurs. That rule lays down that no person whether an officer of the department or not, shall be eligible for. appointment to the grade of Jailor, Deputy Jailor or Assistant Jailor unless he has previously passed the Jail Officers' Test and possesses also the general educational qualifications prescribed by Government from time to time. Thus, in exercise of the power conferred by the Travancore-Cochin Prisons Act to make rules regarding the appointment, etc., of officers this mandatory provision relating to the qualification for eligibility for appointment to the grade of Assistant Jailor has been laid down by the State Government. The question is whether, this statutory rule has been abrogated by anything contained in the Special Rules which were promulgated by the State Government on 11th August 1959. 5. The provision in the Special Rules that is relied on by the State Government is contained in rule 6 read with columns 1 and 2 of the Annexure. Rule 6 says that no person shall be eligible for appointment to the posts and by the method specified in columns 1 and 2 of the annexure unless he possesses the qualification specified in the corresponding entry in column 3 thereof. When we turn to the relevant entry in the annexure relating to the post of Assistant Jailor Grade II we find that only the minimum general educational qualification of S.S.L.C. standard has been prescribed. On the basis of this it is contended by the respondents that so long as a person satisfies this requirement regarding minimum general educational qualification, he has to be regarded as eligible for appointment to the post of Assistant Jailor notwithstanding anything contained in the Kerala Prisons Rules. The respondents also rely strongly on the fact that in rule 9 of the Special Rules while prescribing the tests to be passed by members of the service, the Jail Officers' Test has been mentioned only as a test to be passed by Assistant Jailors within the period of probation. The respondents also rely strongly on the fact that in rule 9 of the Special Rules while prescribing the tests to be passed by members of the service, the Jail Officers' Test has been mentioned only as a test to be passed by Assistant Jailors within the period of probation. On the basis of this provision in rule 9 it is argued that it follows by necessary implication that the insistence on the passing of the said test as a condition precedent for promotion is not contemplated by the Special Rules. 6. The Special Rules have been admittedly made in exercise of the power conferred by the proviso to Article 309 of the Constitution. Under the said Article the power to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State is primarily vested in the Legislature of the State. The rule-making power conferred on the Governor under the proviso to Article 309 is intended to cover only the period between the coming into force of the Constitution and the exercise by the State Legislature of its legislative power under Article 309 by enacting suitable provision regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State. This is made clear by the wording used in the proviso to Article 309 wherein it is clearly stated that the competence of the Governor to make rules will subsist only "until provision in that behalf is made by or under an Act of the appropriate Legislature under this article". To eliminate all doubt it is also further stated in the said proviso that any rules made by the Governor in exercise of the power conferred by it shall have effect only subject to the provisions of any Act made by the appropriate Legislature under Article 309 of the Constitution. If, therefore, the Legislature of this State has made provision regulating the recruitment and conditions of service of persons appointed to any of its services, the law so enacted as also any statutory rules framed thereunder would override any provision relating to such service which has been previously made by the Governor in the exercise of his power under the proviso to Article 309 of the Constitution. It is equally clear that once the Legislature has made provision in regard to the said subject matter, it is no longer open to the Governor to exercise his powers under the proviso to Article 309 of the Constitution in respect of the same subject matter. 7. In the present case the Travancore-Cochin Prisons Act is a Post-Constitution enactment and in so far as it has made provisions regarding the appointment of officers for prisons and also empowered the State Government to make rules relating to the appointment and conditions of service of such officers, it constitutes the law made by the State Legislature on the said subject within the meaning of Article 309 of the Constitution. The Kerala Prisons Rules framed under section 59 of the said Act will equally constitute "provision in that behalf.. made under an Act of the appropriate Legislature under the said Article" within the meaning of the proviso to Article 309. After such a provision had been already made by the Legislature and by the rulemaking authority, it was no longer open to the Governor to frame any rules under the proviso to Article 309 touching the identical subject which are in conflict with the earlier legislative enactment or the rules made thereunder. Any rules made under the proviso to Article 309 of the Constitution can have effect only subject to the provisions of the statute enacted by the Legislature under Article 309 of the Constitution and the rules framed thereunder. The stand taken by the Government that the Special Rules which were issued on 11th of August, 1959 superseded the provision contained in rule 67 of the Kerala Prisons Rules which were promulgated on 26th July 1958 cannot therefore be accepted as correct. Even if the Kerala Prisons Rules came into force only subsequent to the issuance of the Special Rules it is the former that will prevail because as already pointed out, the Special Rules framed under the proviso to Article 309 can have effect only subject to the provision made by the Legislature under the substantive part of that article. 8. I may however observe that it is possible in this case to reconcile the provisions contained in rule 67 of the Prison Rules and rule 6 of the Special Rules read with the annexure. 8. I may however observe that it is possible in this case to reconcile the provisions contained in rule 67 of the Prison Rules and rule 6 of the Special Rules read with the annexure. Rule 67 is in these terms:” "67.Qualification for appointment to upper subordinate establishment:” No person whether an officer of the Department or not, shall be eligible for appointment to the grade of Jailor, Deputy Jailor or Assistant Jailor unless he has previously passed the Jail Officers' Test, and possesses the general educational qualifications prescribed by Government from time to time." While imposing an absolute prohibition on the appointment of any person as Assistant Jailor unless he has previously passed the Jail Officers' Test and possesses the requisite general educational qualifications, the rule-making authority has left the subject matter of the prescription or the general qualifications to be done in future by the State Government. That subject has been dealt with in the Special Rules. It is reasonably possible to construe rule 6 of the Special Rules and the annexure thereto as covering only the said subject of prescription of the general educational qualification. 9. Some difficulty is however created by the provision contained in rule 9 of the Special Rules wherein while prescribing the Jail Officers' Test as one of the tests to be passed by Assistant Jailors Grades I and II, it has been stated that the said test is to be passed within the period of probation unless they have already passed the tests. Rule 67 of the Prisons Rules lays down in absolute terms that no person who has not passed the test shall be eligible for appointment as Assistant Jailor. To the extent to which rule 9 purports to lay down that the said test may be passed during the period of probation there is a repugnancy between the two provisions and 'for the reasons, already stated by me the provisions of rule 67 of the Kerala Prisons Rules will prevail and rule 9 of the Special Rules will have to be treated as inoperative. 10. 10. In as much as it has been candidly stated in the counter-affidavit that the reversion of the petitioners who are admittedly possessed of the qualification of the Jail Officers' Test qualification has been ordered only with a view to accommodate persons who do not possess the said qualification, it is clear that the action taken by respondents 1 and 2 is illegal and contrary to rule 67. The impugned orders evidenced by Ext. P-5 in each of the cases will stand quashed. 11. The original petitions are allowed as above. The parties will bear their respective costs.