JUDGMENT : Ram Naresh Thakur, J. The petitioners by this writ application challenge, the ORDER :s of promotion of the respondents Nos. 3 to 100 contained in Annexures 1, 2, 7, 7/1, 7/2, 7/3 and 7/4 from Lower Division Clerks on the ground that their promotion amount to the supper-session of the petitioners 2. The petitioner no. 1 joined as a temporary Lower Division Clerk under respondent no. 2 with effect from 1.9.55 having serial no. 77 in the gradation list and was confirmed in a permanent post of Lower Division Clerk with effect from 1.2.1957. He was promoted as Upper Division Clerk with effect from 17.12.1977 in the office of the Assistant Registrar, Co-operative Societies. Buxar Circle, Buxar, District Bhojpur. 3. Petitioner no. 2 joined as a temporary Lower Division Clerk under respondent No. 2 with effect from 2.7.1976 and was confirmed in a permanent post of Lower Division Clerk with effect from 1.4.1964 and is working as such in the office of the respondent no. 2 having his serial no. 108 in the gradate on list. 4. Petitioner No.3 joined as temporary Lower Division Clerk under respondent no. 2 with effect from 2.11.1957 having serial no. 159 in the gradation list and was confirmed in a permanent post of Lower Division Clerk with effect from 1.4.1964 and is working as such under the Manager, Land Development Bank, Birpur, P.S. Birpur, District Saharsa. 5. It is said that the petitioners came to know 10th, last week of April, 1975 that there was a move not to consider the cases of these petitioners for promotion to the Upper Division Clerk or Selection Grade Clerks post by the ORDER :dated 24.1.1969 (Annexure ‘3’) on the ground that these petitioners had not passed the final examination in accounts as prescribed by the Bihar Board's Miscellaneous Rules. Thereafter it is said that these petitioners along with a few others submitted representation to the Government on several occasions. But their representations appears to have been rejected with the result that the respondent no. 3 to 64 have been promoted as Upper Division or Selection Grade Clerks from different dates. Therefore, this application has been filed to set aside the aforesaid ORDER :. 6. Learned counsel for the petitioners has argued that the Bihar Board's Miscellaneous Rule came in existence in the year 1947 before India achieved Independence. 3 to 64 have been promoted as Upper Division or Selection Grade Clerks from different dates. Therefore, this application has been filed to set aside the aforesaid ORDER :. 6. Learned counsel for the petitioners has argued that the Bihar Board's Miscellaneous Rule came in existence in the year 1947 before India achieved Independence. After independence under the constitution the said Bihar Board's Miscellaneous Rules were adopted by the statute. Thus rule made therein became statutory rules. Subsequently in the year 1958 revised edition of Boards Miscellaneous Rules was published with some amendments. But this Board's Miscellaneous Rules of 1958 came into existence by executive ORDER :and not by any statute. Therefore, according to him, the Board's Miscellaneous Rules 1958 can not override any provision of Board's Miscellaneous Rule of 1947. Secondly it has been argued that in the year 1980 the pasts of Lover Division Clerk and Upper Division Clerk were amalgamated and a new cadre of assistants bas been created. Therefore in the changed circumstances question of passing the departmental examination for the promotion of Upper Division Clerk and/or Section Grade Clerk does not arise at all. In course of argument the learned counsel for the petitioners did not challenge the ORDER :s by which promotions were given to Respondent Nos. 3 to 64. He simply challenged some of the amendments made in Board's Miscellaneous Rules of 1958 by which passing of final examination in accounts has been made "must" for promotion not only to posts in Upper Division requiring knowledge of accounts, but to all posts in the Upper Division. In this connection he referred to Rule 157(3)(j) of the 1958 Rules, which according to him, is not statutory rule framed under Article 309 of the Indian Constitution, hence deserves to be struck down. In view of this clear submissions made by Shri Surojendu Mukherji appearing for the petitioners, we need not address ourselves to see the validity or otherwise of ORDER :s contained in Annexures 1, 2, 7, 7/1, 7/2 and 7/3. 7. Learned counsel appearing on behalf of the State has admitted that the posts of Lower Division Clerk and Upper Division Clerk were amalgamated in the year 1980 and a new cadre of "Assistants" was created and since then all such employees are called as Assistants. 7. Learned counsel appearing on behalf of the State has admitted that the posts of Lower Division Clerk and Upper Division Clerk were amalgamated in the year 1980 and a new cadre of "Assistants" was created and since then all such employees are called as Assistants. Learned counsel appearing on behalf of the State has fairly conceded that in view of this amalgamation and creation of new cadre question of departmental examination for the promotion to the post of Upper Division Clerk does not arise and has no meaning now. 8. In this changed circumstances, it is also not necessary for us in this case to decide about invalidity of Board's Miscellaneous Rules, 1958. 9. When posts of Upper Division Clerk or Lower Division Clerk do not exist, passing of departmental examination for the promotion to the post of Upper Division should not arise at all. Petitioners now can not be called as Lower Division Clerk. 10. It has been argued on behalf of the petitioners that a large number of Selection Grade posts of clerk (for the offices Subordinate to the Co-operative Department) with effect from 1.4.64 were created by the Government ORDER :dated 24.1.1969 and it was specifically provided in the said ORDER :that all posts of clerks will be filled up by the Ministerial officers in ORDER :of seniority. A true copy of the said ORDER :dated 24.1.1969 is Annexure ‘3’. Unfortunately, this petitioner are not being promoted to the selection grade on the ground that they have not passed final examination in accounts. Even the representation filed by them have been rejected without considering their cases. In this connection, it has been contended that the posts of selection Grade did not exist when the Boards Miscellaneous Rules 1947 came in existence. Therefore any direction by the Government to the effect that until and unless these petitioners passed examination in accounts they cannot be promoted to the Selection Grade post is quite illegal. I find some force in this argument of the learned counsel for the petitioners. The posts of Selection Grade have been created much after the Board's Miscellaneous Rules 1947 came in existence. I find some force in this argument of the learned counsel for the petitioners. The posts of Selection Grade have been created much after the Board's Miscellaneous Rules 1947 came in existence. When the Board's Miscellaneous Rules 1947, which is statutory rule does not provide or lays down that fur promotion to a Selection Grade post passing of examination in accounts is a must, I think the petitioners can not be called upon the Selection Grade posts it otherwise they are found fit. It is admitted that the Legislature has not framed any rule to regulate the recruitment and condition of service of persons appointed to the public service and post in connection with affairs of this State. Therefore, the provisions of Boards Miscellaneous Rules 1947 which was adopted after independence are statutory and no executive ORDER :can be passed in contravention of those provisions. Therefore, the cases of these petitioners for their promotion to the Selection Grade posts have to be considered on merits from the due date without requiring them to pass examination in Accounts. 11. Therefore, under this changed situation, the respondent nos. 1 and 2 and concerned authorities are directed to consider the cases of petitioners purely on merits without any further delay preferably within three months from the date of receipt of this ORDER :. I am sure, the authorities will take into account, while considering their cases, the long period of services which they have put in so far. 12. With this aforesaid direction, the application is disposed of. Parties will bear their own costs.