JUDGMENT P.S. MISHRA, J. By this application under article 226 of the Constitution or India the petitioner has moved this Court for a writ in the nature of mandamus directing the respondent no. 4 to appoint her as a clerk in Darbhanga Collectorate. 2. Petitioner worked during the census from 1.9.81 to 28.2.82 as a Tabulator in the Regional Tabulation office, and was retrenched from the said post with effect from 1.3.82 under the orders of the Directorate of Census operations, Bihar Regional Tabulation Office, Darbhanga. On 7.4.82 a Circular was issued to all concerned by the Chief Secretary, Government of Bihar, on the subject of appointment of the retrenched employees of the Census operation stating that steps should be taken to appoint such retrenched employees in preference to others in accordance with their qualifications against the available vacancies. A copy of the said Circular is Annexure 2 to this application. Contents of this Circular were reiterated in a letter by the Commissioner, Darbhanga Division to all the departments within his division dated 18.8.82. This letter also mentions that despite a clear circular of the Government and the Government decision in this behalf retrenched employees of the Census operation were not given the preference in the appointments and persons otherwise qualified were still being appointed which was not proper. This letter, which is Annexure 3 to the writ application, emphssisec1 that while preparing the penal of the waiting list for the appointments against the existing vacancies, retrenched employees of the Census operation should be given preference. Petitioner was thereafter called for interview but in the interview letter (Annexure 4 to the writ application) it was also stated that the petitioner would be required to appear at typewriting test for the post of clerk which would be held on 10.1.83. Petitioner appeared in the test held on 10.1.83 but failed to qualify being not able to type out up to the desired speed. 3. Petitioner has asserted that when she found the list of the 26 selected candidates for appointments as clerk in the Darbhanga Collectorate published in a daily newspaper on 1.3.83, she made enquiries and came to know that in the previous years quite a few persons were appointed as clerks who had no knowledge of type-writing and even in the list of candidates selected for appointment, Sudhakar Mishra and Bimal Kumar Das at Sls. 6 and 10 (retrenched employees of the Census operation like the petitioner) were 8elected who had not attained the minimum type-writing speed and the notice giving appointment to them recited that they would be required to obtain the requisite minimum type-writing speed in Hindi within three months of their appointments failing which their services would be terminated but her candidature had been rejected. Knowledge of type-writing to petitioner, is not an essential qualification. Although its knowledge may be valuable and counted as additional but not indispensible qualification, on account of an administrative instruction issued on 2.5.1977, respondents have been insisting that without the knowledge of typewriting no person would be deemed to be qualified for appointment as a clerk. 4. Return to the rule issued by this Court has been filed only on behalf of respondent no. 4. He has maintained that under rule 148 (K) of the Bihar Board Miscellaneous Rules, 1947 and correction slip no. 29 dated 19.11.78, knowledge of Hindi type-writing up to the required standard is an indispensible qualification for a clerk in a Mofassil office and the petitioner did oat qualify in the typewriting test. It has been stated that it is not correct to say that the petitioner qualified on ground that she was a retrenched staff of the Census operation and was entitled to a preferencial appointment since her name had not been included in the list of 107 retrenched staff of 1981 Census operation, as she had worked for less than six months in the said operation. A circular dated 5.9.1979 has been relied upon by her which says that only such retrenched employees would be given preference in the appointments who before their retrenchment had worked for six months or more. 5. Petitioner, a lady with M.A. qualification opted for a clerical Job and worked in the Census operation for more or less six months. She applied for appointment in the Collectorate as a clerk because a Circular (Annexure 2) specially issued for absorption of retrenched employees of the Census operation, stated that retrenched employees of Census would be given preference. She was called for interview and the test was held accordingly but she was not selected because she did not qualify in the Hindi Typewriting fest. She was called for interview and the test was held accordingly but she was not selected because she did not qualify in the Hindi Typewriting fest. Unfortunate for her, the petitioner has not impleaded either Sudhakar Mishra or Bimal Kumar Das party respondents and they have not been noticed to show cause. It is not possible in their absence to adjudicate as to whether they qualified in the Hindi Typewriting Test or not and the petitioner accordingly was discriminated or not. Learned counsel for the petitioner, has drawn our attention to the fact that, the provisions as contained in the Board Miscellaneous Rules, prior to 15.4.1950, are rules adopted as rules framed in exercise of the powers conferred by the proviso to rule 309 of the Constitution of India, but orders purporting to amend rule 148 and/or introducing any other rule or clause in a rule are not statutory. Any amendment to the rule existing on 15.4.1950, by an executive instruction which has got the effect of disentitling a candidate otherwise eligible under the statutory rules is ultra vires the rule and article 309 read with Art. 162 of the Constitution of India. He has submitted that the respondents were obliged to consider the petitioner's candidature and if she was otherwise qualified and there was a vacancy available for her appointment in accordance with the preference indicated in Annexure 2, she could not be denied the appointment, Learned Advocate General on the other hand disputed this proposition and submitted that by introducing the qualification of proficiency in type writing as an essential qualification no violation has been done to the rule. He has however, accepted that the amendment in question has been introduced not in accordance with the proviso to article 309 of the Constitution, but has been done in exercise of the power under article 162. 6. By a Notification published in the Bihar Gazette dated 15.4.50, all enactments, rules and orders, whether made under any enactment or otherwise which regulated the recruitment and condition of service of persons appointed to public service and posts in connection with the affairs of the State of Bihar and which were enforced immediately before the 26th January, 1950, were notified to be rules regulating such recruitment and conditions of service in exercise or the powers conferred by the proviso to article 309 of the Constitution of India by the governor of Bihar. The Notification recited that the Governor of Bihar was pleased to make the rule until provision is made by or under an Act, of the State legislature. There is no dispute that the Bihar Board’s Miscellaneous Rules, 1949 as amended form time to time and republished in august, 1958 as Boards Miscellaneous Rule, 1958 is a compendium of the Circulars, orders and instructions. Quite a few of the provision of the said rules are not statutory, Only such provisions are statutory which existed prior to 26.1.1950 and were adopted as statutory rules under the Notification dated 26.4.1950, Rule 148 as it existed on 26.1.1950, provided as under : - “148. A candidate for a vacant post must fulfil the following conditions :- (a) He must have passed Matriculation Examination must hold the School Leaving Certificate for High school. He must also have a good knowledge of Hindi written in Deonagri script, which is the language of the State. Note 1- II-As Knowledge of the type-writing is valuable for almost all clerks, it should count as an additional but not indispensible qualification.” It is evident from the said rule that passing the Matriculation Examination, and a good knowledge of Hindi written in Deonagri script are the only essential qualifications. Knowledge of type-writing is an additional but not indispensible qualification. There are quite a few amendment made by the Government orders or executive instructions including one introduced as 148 (K) which says :- fu;e 148 ,oa fu;e ¼d½ eqQfly dk;kZy;ksa esa fuEuoxhZ; fyfid ds in ij fu;qfDr gsrq fgUnh vaxszth esa Vad.k tk¡p vfuok;Z gSA eqQfly dk;kZy;ks esa oSls dksbZ Hkh mEehnokj fuEuoxhZ; fyfid ds in ij fu;qfDr ds ;ksX; ugha gksaxsA ftudh Vad.k xfr fgUnh rFkk vaxzsth esa izfr feuV dze’k% 35 rFkk 30 ‘kCn ls de gksA^^ By this amendment knowledge of both Hindi and English type-writing has been made essential for a candidate for the post of clerk. The executive power of the State as prescribed under articles 162 of the Constitution ordinarily denotes the residue of Governmental functions that remain after legislative and judicial functions are taken away, but quasi legislative and quasi judicial functions are also exercised by the State. In the absence of legislations State's executive powers extend to making rules regulating the actions of the executives. In the absence of legislations State's executive powers extend to making rules regulating the actions of the executives. But such rules cannot offend the provisions of the Constitution, If they are repugnant to any enactment of the appropriate legislature or rule making authority exercising deligated power they cannot be sustained. In other words if the executive instructions can co-exist with the statutory rules in the sense that nothing stated in the statutory rules are impaired or violated they may exist to achieve the desired purpose. But once it is found that the executive instruction or order -tends to encroach upon the statutory rule the executive instruction must be treated to be non-existant. Authorities have gone so far to say that in exercise of its executive power the Government can full up a gap and supplement the rule by issuing adminstrative instructions. But in order to be valid they must be subservient to the statutory provisions. There cannot be any doubt that in the event of a conflict between provisions or rules made under proviso to article 309 and government order made in exercise of the executive power under article 162, former shall prevail over the latter. 7. By the notification dated 15.4.1950, the rules for recruitment as contained in Board’s Miscellaneous Rules became the rules under article 309. The said rule neither prescribed any examination or departmental test in the type-writing for earning eligibility nor required any such qualification for appointment. It only contained that knowledge of type-writing is valuable and should count as an additional qualification. By the Circular dated 2.5.1977 reiterated again on 19.11.1978, for eligibility, a certain proficiency in type-writing has been introduced as an essential qualification. This cannot be said to be an order fil1ing up a gap and supplementing the statutory rule. This is evidently in conflict with the original statutory provision and tends to repeal the same, It is evident, therefore, that the petitioner could not be disqualified on this ground. 8. I have also not been able to appreciate as to how the circular tilted 5.9.1979, in any way, denied to the petitioner what has been specifically contemplated by the circular contained in Annexure 2. Annexure 2 is a circular dated 7.4.82 on the subject of absorption of the retrenched employees of the Census operation. 8. I have also not been able to appreciate as to how the circular tilted 5.9.1979, in any way, denied to the petitioner what has been specifically contemplated by the circular contained in Annexure 2. Annexure 2 is a circular dated 7.4.82 on the subject of absorption of the retrenched employees of the Census operation. It mentions no period of qualifying service for a retrenched employee of the Census to claim preference contemplated therein. 1979 Circular is generally about qualifying period of six months of a retrenched employee for his claiming the preferencial appointment and is one of the considerations for such appointments. In my view Annexure 2 fully covers the case of the petitioner and there is no disqualification on the ground that she had not served for more than six months in the Census operation. 9. At the time of admission of this application it was ordered that a post shall be kept vacant for the petitioner. Still it is not possible to conclude that the petitioner must be appointed. All that I have found is that the petitioner is fully eligible and if there is vacancy she can be considered for appointment and her candidature cannot be rejected on the ground that she does not possess the requisite preficiency in the type-writing. The petitioner as such is fully qualified for the appointment but still, in view of type-writing being an additional qualification a candidate with the said additional qualification can be referred to her. 10. In the result this application is allowed. The respondents are directed to consider the case of the petitioner as she possess all the essential qualifications in accordance with law. On the facts and in the circumstances of the case there shall, however, be no order as to costs. S. Sarwar Ali, J. I agree. Application allowed.