Judgment B. P. Jha, J. 1. The petitioner moved an application under Articles 226 and 227 of the Constitution of India for quashing anexures 1, 2 and 3. 2. The relevant facts are these :- The petitioner was appointed as a Junior Accounts Clerk with effect from 7th April, 1955 in the Forbesganj Division of Kosi Project department. In 1959, he passed the departmental examination and was promoted as a senior accounts clerk. After his promotion, the petitioner was posted in the office of the financial Adviser-cum-Chief Accounts Officer of the Kiver Valley Project department at Birpur. Ultimately, the petitioner was transferred at his own request to the office of the River Valley Project department in the Secretariat as Senior Accounts. Clerk on 10th july, 1963. 3 Respondent no.3, Mani Mohan Sinha, was appointed as a junior accounts clerk in the office of the Kosi Project Department with effect from 13th June, 1957. In 1960, he passed the departmental examination and was promoted as a senior accounts clerk with effect from 13th May, 1960. Respondent no.3 was posted in the Secretariat, While serving in the Secretariat, he was promoted to the post of cashier with effect from 1st July, 1962. The post of cashier is admittedly superior in rank to the post of the senior accounts clerk. 4. Respondent no.4 was appointed as a junior accounts clerk with effect from 18th October, 1960. He did not pass the departmental examination and was never promoted to the post of senior accounts clerk. He was directly promoted as a cashier with effect from 1st April, 1965. Though the petitioner was appointed as a junior accounts clerk on 7th April, 1955 and he was promoted to the post of senior accounts clerk after passing the departmental examination in 1959, his case was not at all considered for promotion to the post of cashier. 5. The grievance of the petitioner is that though he was senior to respondents 3 and 4, his case was not considered by the department for promoting him to the post of cashier. 6. According to the case cf petitioner, he was admittedly senior to respondents 3 and 4. The petitioner was appointed on 7th April, 1955, whereas respondents 3 and 4 were appointed on 13th June, 1957 and 18th October, 1960 respectively. 6. According to the case cf petitioner, he was admittedly senior to respondents 3 and 4. The petitioner was appointed on 7th April, 1955, whereas respondents 3 and 4 were appointed on 13th June, 1957 and 18th October, 1960 respectively. The petitioner passed the departmental examination in 1959 and was promoted to the post of senior accounts clerk with effect from 13th June, 1959, whereas respondent no.3 passed the departmental examination in 1960 and he was promoted to the post of senior accounts clerk with effect from 13th may, 1960. On a perusal of these data, it is clear that the petitioner was senior to respondents 3 and 4. In my opinion, it is a reasonable grievance of the petitioner that his case should have bssn considered while promoting respondents 3 and 4 to the post of cashier. The admitted position is that the post of cashier is senior to the post of senior accounts clerk. 7. Learned Counsel for the respondents contends that respondent no.3 was appointed in the Secretariat cadre which was treated as a separate cadre from the field cadre. In other words, the case of the respondents is that as the petitioner was working in the field, his cadre was separate from the persons working in the Secretariat. We, therefore, asked the learned Counsel of the state to produce the file relating to the creation of two separate cadres. Oa the date of hearing, learned counsel produced the file of the Secretariat which does not show that two separate cadres have been created-one for the Secretariat and the other for the field. In the absence of such creation of cadres, we hold that the State Government has not created two separate cadres, that is, one for the secretariat and the other for the field personnel. In this connection, provisos to Articles 309 and 162 of the Constitution are relevant. The proviso to Article 309 provides that the Governor will be entitled to make rules regulating the recruitment, and the conditions af service of persons appointed. If the State government create two cadres, the Governor shall have to make rules in that connection as envisaged by proviso to Article 309. The learned counsel for the state did not produce any such rule framed by the Governor. Under Article 162 also, the Governor can issue an executive order read with Article 166 of the constitution. If the State government create two cadres, the Governor shall have to make rules in that connection as envisaged by proviso to Article 309. The learned counsel for the state did not produce any such rule framed by the Governor. Under Article 162 also, the Governor can issue an executive order read with Article 166 of the constitution. The executive order in the name of the Governor has also not been produced before us by the learned counsel of the State. Hence, we hold that the governor has neither framed rules nor any executive order has been issued in his name declaring a separate cadre of the Secretariat and another cadre for the field officers. In this circumstances, I hold that there is one cadre for the Irrigation department whether he is working in the field or in the Secretariat. If it is so, the petitioner bsing the seniormost person should have been considered for promotion to the post of cashier while considering the case of respondent no.3 for the promotion to the post of cashier. According to me, the petitioner is senior to respondents 3 and 4. 8. In the result, I quash the orders contained in annexure 1, 2 and 3. The parties will bear their own costs. I direct respondents 1 and 2 to consider the case of seniority inter se between the petitioner and respondents 3 and 4 and in respect of the posts of cashier and accountant. S. K. Jha, J.-I agree that this application has to be allowed but without costs. I also respectfully agree that the matter of promotion to the post of cashier and then to that of an accountant ought to be considered while keeping in view the inter se seniority between the petitioner on the one hand and respondents 3 and 4 on the other. We are not concerned with regard to any other incumbent. 9. As has already been noticed by my learned brother, the grievance of the petitioner is against his declaration as junior to respondents 3 and 4 in the rank of cashier (vtde annexures 1 and 2) and his reversion from the post of the accountant to that of the cashier as contained in annexure 3. 9. As has already been noticed by my learned brother, the grievance of the petitioner is against his declaration as junior to respondents 3 and 4 in the rank of cashier (vtde annexures 1 and 2) and his reversion from the post of the accountant to that of the cashier as contained in annexure 3. The stand of the petitioner is that all the junior accounts clerks from which the promotional avenues are senior accounts clerks and then as cashiers, then to the posts of accountants for the entire River Valley Project Department, be that in the headquarters at Patna Secretariat or in the field establishments of different projects, from a single integrated cadre. The stand of the respondent State of Bihar as well as respondents 3 and 4, on the contrary, is that although the junior accounts clerks or for that matter the senior accounts clerks, cashiers and the accountants are appointed as against the vacancies in different River valley Projects, such as, Kosi, Gandak and the like, there are two separate cadres of such incumbents : one is the Secretariat cadre meant exclusively for the personnel meaning the headquarters section of the different projects and the other which forms a distinct cadre by itself is called the field establishments of these projects. According to the respondents case, therefore, if there are twp distinct cadres, if and on the admitted case of the parties, the petitioner on his own request had been transferred to the Secretariat cadre as a senior accounts clerk on 10th July, 1963, he had no option but to accept his position of juniority in the Secretariat cadre of junior accounts clerks or senior accounts clerks, since respondents 3 and 4 were already serving in the headquarters (Secretariat cadre) from before the petitioner. 10. It needs no argument, I think, to hold that inter se seniority between the different members of a service is a fact which has to be noticed except where such seniority has to be decided with reference to any relevant rules calling for any interpretation ; otherwise amongst persons appointed and joining in the same cadre of service, one who is appointed prior in time and is so confirmed before others is always reckoned as senior to such others. That is a fact, pure and. simple. That is a fact, pure and. simple. As has already been noticed by my learned brother, the admitted facts are that the petitioner was appointed as a junior accounts clerk on the 7thi April, 1955, that is, the date much prior to the dates when respondent 3 aid 4 were so appointed. Similarly, the petitioner was promoted as senior aceounts clerk with effect from the 13th June, 1959, again admittedly prior to the promotion of respondent no.3 as senior accounts clerk, to which post respondent no.4 was never promoted, he having never passed his departmental examination. If the entire cadre of these junior accounts clerks, senior accounts clerks, etc. of the department of River Valley Project, both in the Secretariat and in the field, is a single integrated cadre. it will need no persuation to hold that the petitioner is admittedly senior to respondents 3 and 4, both in the cadre of junior accounts clerks as well as in the cadre of senior accounts clerks the petitioner ever since he joined as a senior accounts clerk in the headquarters office at Patna Secretariat on the 10th July, 1963, has been crying hoarse from the house-top that by virtue of his seniority vis-a-vis respondents 3 and 4, his claim of promotion to the higher post must be considered before being passed by respondents 3 and 4 on the pretext of there being so called two distinct cadres one for the Secretariat establishment and the other for the field establishment. As a matter of fact, the real bone of contention between the parties is as to whether it can be said that the respondents stand with regard to there being two distinct cadres is borne out from the records or not. In this context, "paragraph no.7 of the counter-affidavit filed on behalf of the State is relevant to be noticed. Therein, it has been stated by the deponent who is an Upper division Assistant that the Secretariat cadre was treated as a separate cadre from the field cadre. In the verification portion of the affidavit, it has been stated that the statements made, inter alia, in paragraph no.7 of the counter-affidavit were based on information derived from the records of the case kept in the office of the department which the deponent believed to be true. In the verification portion of the affidavit, it has been stated that the statements made, inter alia, in paragraph no.7 of the counter-affidavit were based on information derived from the records of the case kept in the office of the department which the deponent believed to be true. This being a matter of considerable importance from the point of view of all the incumbents serving in any rung of the hierachy of the River Valley Project, we gave, as already observed by my learned brother, an opportunity to the learned counsel for the State produce before us the entire records of the case and to show to us whether as a matter of fact there had been any bifurcation of cadres with regard to the personnel serving in the Secretariat and those serving in the field establishment at different places in the same River Valley project Department. The entire file was produced before us. The learned counsel for the State was unable to show to us anything from the records even to suggest that there had been any formal or informal decision either of the council of Ministers or even of the Chief Minister alone, muchless any order or notification issued in the name of the Governor authenticated by an officer according to the rules of executive business. 11. It has been repeatedly held that cadres can be integrated or disintegrated or formed and established only under the rule-making authority of the state under Article 309 of the Constitution. In the absence of such rules, the executive power of the State to issue administrative instructions having the force of law must extend even to the matters of service conditions. At the same time, it has been also held that in the absence of any rule under Article 309 of the Constitution of India, if an action is purported to be taken as an executive action by the State by virtue of the powers conferred under Article 162 of the constitution of India, then as is enjoined in Article 166 of the Constitution, the executive action must be expressed to be taken in the name of the Governor, and, under clause (2) of Article 166 orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as the rules of executive business shall provide. In spite of the best efforts of the learned counsel for the State and in spite of delving into the Secretariat files ourselves, I am not in a position even to doubt that at any time there may have been any informal resolution or decision of either the Council of Ministers or the Chief Ministers needless as to say that there is no order or instruction expressed to be in the name of the Governor nor authenticated as such by any competent officer. Even the admitted position is that the entire River Valley project Department accounts psrsonnel which had initially formed one single integrated cadre must be deemed to have continued as such. in the absence of any disintegration of the two cadres one for the Secretarint and the other for the filed establishment. 12. Once that conclusion is reached, there is no escape from the position that on the admitted facts the petitioner is and has all along in his service career been senior to respondents 3 and 4. His case, therefore, must be considered before his promotion was bypassed by respondents 3 and 4 on the pretext of what the department chose loosely to call two distinct cadres one for Secretariat accountants and the other for field establishment accounts. The state Government should be well advised, whenever they form or abolish distinct cadres, to bear in mind what a Bench decision of this court said in M. G Sharan and others V/s. State of Bihar and others, ( AIR 1970 Pat 25 ). It is not for us to advise the State Government in matters of formation or deletion of cadres ; but it would certainly be in the interest of the general public and in the interest of the speedy administration of justice so that such cases do not pile up in the High Courts in exercise of their writ jurisdiction that these well-established principles should be borne in mind by the State Government before seeking to effect prejudicially persons who may complain in the absence of these formalities of an infraction of the provisions of Articles 14 and 16 of the Constitution. That is precisely the case here. The petitioner had no remedy but to invoke in his aid the provisions of Articles 14 and 16 inhibiting the State action from any discriminatory treatment between persons alike in any office. 13. That is precisely the case here. The petitioner had no remedy but to invoke in his aid the provisions of Articles 14 and 16 inhibiting the State action from any discriminatory treatment between persons alike in any office. 13. I am, therefore, in entire agreement with my learned brother that the case of promotion to the post of cashier and then to the post of ac;ountant has to be redetermined between the petitioner and respondents 3 and 4 keeping in view the seniority of the petitioner in the service. Petition allowed.