Judgment N. P. Singh, A. C. J. 1. The petitioner has tiled this writ application for quashing a communication dated 21-11-1986 issued by the special Secretary, department of Animal Husbandry and Fisheries, saying that the Bihar Animal husbandry Service Class I (special Category) shall be a basic cadre of the said Department. A copy of the said communication is Annexure-7. The petitioner has also questioned the validity of a notification dated 3-12-1987 issued by the same Department notifying a gradation list of officers directly appointed or promoted to the newly created cadre of the Bihar Animal husbandry Service Class I (Special Category) A copy of that notification is Annexure-13. 2. The petitioner was appointed in the Bihar Animal Husbandry Service class I by a notification dated 6-7-1966 issued by the Department of Animal husbandry. Respondent No.5 was appointed as Class III Officers in Bihar animal Husbandry Service. He joined in the year 1972. On 7-6-1973 the department notified a final gradation list of the officers in Bihar Animal husbandry service class I. In that gradation list the name of the petitioner was mentioned against serial no.37. As on that date respondent no.5 was in Bihar Animal Husbandry service Class III, his name did not figure in the said list. On the recommendation of the Bihar Public Service Commission (hereinafter referred to as the Commission) respondent no.5 was appoiated in class II Service in the year 1976, against a reserved post. 3. An advertisement was published on 1-6-1977 by the Commission inviting applications from eligible candidates for appointment against a temporary post of Special Officer, Intensive Cattle Development Block in the pay scale of Rs.1060-1580/- in Animal Husbandry Service Class I (Special category) reserved for the members of the Scheduled Caste. Pursuant to that advertisement respondent no.5 and others filed applications. On the basis of the recommendation made by the Commission the said respondent was appointed on 9-1-1978 against the aforesaid post by process of direct recruitment. 4. The petitioner, who was continuing in Bihar Animal Husbandry service Class I since tne year 1966 was promoted on 21-11-1985 to senior selection grade in the pay scale of Rs.1375-2300/- with the concurrence of the commission with effect from 1-1-1977. Later by another notification issued on 3-12-1987 the date of the promotion of the petitioner to senior selection grade was changed from 1-1-1977 to 1-2-1983. Later by another notification issued on 3-12-1987 the date of the promotion of the petitioner to senior selection grade was changed from 1-1-1977 to 1-2-1983. It has been asserted that the aforesaid decision was taken by the State Government without consulting the Commission and without approval of the Council of Ministers. Yet another notification was issued on 8-1-1988 changing the date of the promotion of the petitioner to senior selection grade from 1-2-1983 to 1-4-1981. It has been alleged on behalf of the petitioner that contradictory notifications were being issued in respect of the promotion of the petitioner to Senior selection grade only to make respondent no 5 senior to the petitioner. 5. On behalf of the petitioner it was alleged that even by changing the date of the promotion to the senior selection grade, of the petitioner from 1-1-1977 to 1-4-1981 when the object of making respondent no.5 senior to the petitioner was not achieved, then the impugned notification dated 21-11-1986 was issued by the Department saying that the Bihar Animal Husbandry service Class I (Special Categoiy) shall be deemed to be a basic cadre. After that the other notification dated 3-12-1987 was issued by the same Department purporting to prepare a gradation list of six officers in the Bihar Animal husbandry Service Class I (Special Category ). Amongst the six officers mentioned in that notification the name of respondent no.5 was mentioned against Serial no.1 and that of the petitioner against Serial no.2. 6. On behalf of the petitioner it his been stated that two impugned notifications aforesaid dated 21-11-1986 and 3-12-1987 have been issued illegally, without the concurrence from the Dapartanent of Personnel and administrative Reforms and the approval of Council of Ministers. It was also pointed out that for creation of the basic cadre approval of the Finance department and the Cabinet was a must. 7. It was pointed out on behalf of the petitionsr that as respondent no.5 had been appointed on 9-1-1978 against a past, which had been advertised in the Bihar Animal Husbandry Service Class I (Special Category) when, in fact, no such service or cadre existed in the year 1978 or any time thereafter, an attempt has been made to create a basic cadre, the Bihar Animal Husbandry service Class I (Special Category) and to prepare a gradation list of officers said to have been recruited to that cadre. 8. 8. In view cf the controversy raised in this writ application the first question, which has to be examined and answered is as to whether on 9-1-1978 when respondent no.5 was appointed against the post advertised in bihar Animal Husbandry Service Class 1 (Special Category) there was a cadre like the Bihar Animal Husbandry Service Class 1 Special Category), it there was no such cadre then \vhether the said respondent was appointed in bihar Animal Husbandry Service Class 1, in which service, admittedly this petitioner had been appointed as early as on 6-7-1966. If respondent no 5 was appointed as member of that service, then having entered in that service several years later respondent no.5 will rank junior to the petitioner. But according to respondent no.5, on 9-1-19/8, he had been appointed in Bihar animal Husbandry Service Class 1 (Special Category;, which was a higner grade of service than Bihar Animal Husbandry service Class 1. 9. Normally, I would have examined the question in detail as to whether there ever existed a cadre of Bihar Animal Husbandry Service Class 1 (Special Category) in which respondent no 5 was appointed by process of direct recruitment on 9-1-1978 and the petitioner was promoted to that service on the basis of the notification dated 8-1-1988 with effect from 1-4-1981. But it will be interesting to note that in the supplementary counter affidavit filed on behalf of the State of Bihar, Secretary cam-Commissioner, and the under Secretary, Department of Animal Husbandry and Fisheries, it has been stated as follows :- "5 That it is stated that the Bihar and Orissa Veterinary Services class I Recruitment Rules, 1935 are still applicable in the Animal husbandry Department. There is no provision in this Rule to declare the Bihar Animal Husbandry Service, Class I (Special)as a basic Cadre. Constitution or Bihar Animal Husbandry service Class 1 (Special) as a basic cadre vide Animal Husbandry depatts letter No.10794 dated 21-11-1986 (Aunexure-7 to the writ petition) was not in accordance with the Rules. It also appears that before issue of the said letter concurrence of the personnel and Administrative Reforms Department and Finance department as also the approval of the Council of Ministers had not been obtained.6. It also appears that before issue of the said letter concurrence of the personnel and Administrative Reforms Department and Finance department as also the approval of the Council of Ministers had not been obtained.6. That the Department of Personnel and Administrative Reforms has further expressed the view that Annexure-A of the Counter affidavit (Resolution No.3746 dated 31-3-1986) has not keen correctly interpreted by the Animal Husbandry Department As per their advice only classification of servic based on revised pay scales In accordance with the recommendation of the fourth pay Revision Committee has been made under that Resolution. It cannot be interpreted to mean that officers in the lower/higher level (Star) will automatically be included in the service of the lower /higher level of service (uchcha star ki seva ). There is difference between a "grade" (shreni) and a "class" (verga) in service. Posts even though having special pay scale of grade I (shreni) do not become posts in Class I (vargas whereas the recruitments are governed by statutory Rules, as in the present case, it is necessary to amend the Rules before including any post in the cadre of the Biahr Animal Husbandry Service Class I.7. That in paragraphs 10 and 11 of the writ petition reference has been made to orders issued on 3-12-1987 and 8-1-1988 changing the dates of the petitioners promotion to senior Selection Grade to 1-2-1983 and 1-4-1981. These orders were issued on the presumption that no post was available on 1-1-1977 for the petitioner and that post was available to him only on the modified dates. Detailed examination of the matter reveals that a post existed for him on l-l-1977. . . in view of the vacancy and incumbancy position, it is clear that a vacancy was available on 1-1-1977 for the petitioner and that there is no justification to change the date of his promotion.8. Detailed examination of the matter reveals that a post existed for him on l-l-1977. . . in view of the vacancy and incumbancy position, it is clear that a vacancy was available on 1-1-1977 for the petitioner and that there is no justification to change the date of his promotion.8. That it may also be stated that letter No.9643 dated 31-3-1978 stated that officers who had never been appointed in Class 1 but straightway appointed in Special Class 1 could be treated to have been in Class I. This was modified by ietter No.10794 dated 21-11-1986 (paragraph 12 of the writ petition) constituting a basic cadre of special Class I. Since the letter order has been found to be illegal and since Personnel Department has advised its cancellation, letter No.9643 dated 31-8-1978 would become operative according to which the seniority of the petitioner wouid be from 28-7-1966 and that of respondent No. D from 11-1-19/6". 10. It may be mentioned that a separate counter-affidavit has also been filed on behalf of the Commissioner-cum-Secretary, Department of personnel and Administrative Reforms, Government of bihar. In that counter affidavit it has been stated that Animal Husbandry Department has neither taken prior approval of the Personnel and Administrative Reforms department nor of Finance Department nor of the Council of Ministers before creating a cadre of Animal Husbandry Service Class I (Special category) by the aforesaid letter dated 21-11-1986, which is being challenged on behalf of the petitioner. The relevant part of the said counter affidavit is as follows :- "4. That the Animal Husbandly Department has taken the prior approval of the Personnel and Administrative Department, nor finance Department, nor the concurrence of the Cabinet, before creating the cadie of Animal Husbandry Service Class 1 (Special)vide letter No.10794 dated 21-11-1986 (Annexure-7 ). The said creation is definitely beyond jurisdiction, irregular and illegal.5. That when the said creation of cadre was brought to the notice of the Personnel Department, respondent No.2, the Department of Personnel had categorically asked the Animal Husbandry department, Vide letter No.7005 dated 1-6-1988 (Annexure-8), to provide information as to how the same was created The said information has not yet been sent to respondent No.2 by the animal Husbandry Department.6. That the 1935 regulations which determine the categorisation of the service cadre within the Animal Husbandry Service, have not been amended or modified. That the 1935 regulations which determine the categorisation of the service cadre within the Animal Husbandry Service, have not been amended or modified. It will be manifest that in the absence of any amendment and/or modification of the said service rule, the creation of "basic cadre" by the Animal husbandry Department is prima facie, illegal and beyond jurisdiction. It will not be out of place to state herein that respondent no 2 by letter No.2033/ka-go-dated 19-9-1989, has directed the Animal Husbandry Department to cancel the Department order No.10794 dated 21-l 1-1986 (Annexure-7) by which the said Class I (Special) basic cadre was created. Respondent No.2 is of the clear opinion that Department order No.10795 dated 21-11-1986 creating and converting Class I (Special) as a "basic cadre" should be cancelled forthwith. The order is not in conformity with the Regulations and Procedure prescribed m rule 55 of the Rules of Executive Business". 11. In that counter affidavit a communication dated 19-9-1989 addressed by the Secretary Department of Personnel and Administrative Reforms to the Commissioner cum-Secretary, Animal Husbandry Department has been annexed. From that communication it appears that the Secretary, Department of Personnel and Administrative Reforms, asserted that the impugned communication dated 21-11-1986 (Annexure-7) creating a basic cadre of animal Husbandry Service Class 1 (Special Category) was illegal because the requisite formalities for creation of the cadre has not been lollowed. In that communication it has also been pointed out that the Bihar Animal husbandry Service Rules, 1935 was in force and in that Rule there was no scope for use of the Bihar Animal Husbandry Service Class I (Special category) as basic grade cadre. The Commissioner-cum-Secretary, Department of Animal Husbandry has been requested to cancel the impugned communication dated 21-11-1986. In view of the stand taken by the Department of Animal Husbandary as the personal and Administrative Reforms department in the present writ application regarding the validity of the communication dated 21-11-1986 (Annexure-7) which is being challenged by the petitioner,in my opinion, there is hardly anything left for this Court to adjudicate. 12. However, the learned counsel appearing for the respondent No.5, asserted that a cadre of Animal Husbandry Service Class I (Special Category)could have been cieated within the Bihar Animal Husbandry Service Class 1 itself because, according to the learned counsel, one service may contain several cadres. 12. However, the learned counsel appearing for the respondent No.5, asserted that a cadre of Animal Husbandry Service Class I (Special Category)could have been cieated within the Bihar Animal Husbandry Service Class 1 itself because, according to the learned counsel, one service may contain several cadres. There may not be any dispute so far this proposition is concerned, but the fact remains whether, m fact, any such cadre has been created in accordance with law by the State Government. In the counter affidavit tiled on behalf of the Animal Husbandry Department as well as on behalf of the Department of Personnel and Administrative Reforms, a categorical stand has been taken that the said notification dated 21-11-1986 (Annexure-7) had been illegally issued without approval of the Personnel and administrative Reforms Departmeat, finance Department and the Council of Ministers. A direction has been issued to recall that communication purporting to create a basic cadre of Animal Husbandry Service Class J (Spacial Category ). If no separate cadre known as "animal Husbandry service Class I (Special Category)" had been created which is said to besuperior to the "bihar Animal Husbandry Sarvice Class I", then the appointment of respondent No.5 on 9-1-1978 in Class I Service shall be deemed to be in the Bihar Animal Husbandry Service Class I, in which the petitioner had be en appointed as early as on 6-7-1966. In that background, there is no question of respondent No.5 being shown senior to the petitioner in class I Service, in the notification dated 3-12-1987 (Annexure-13), purporting to notify the gradation list of officers in the newly created cadre of Bihar animal Husbandry Service Class 1 (Special Category ). 13. As already stated above, according to the petitioner, he had been appointed in the Bihar Animal Husbandry Service Class I on 6-7-1966. He was promoted on 21-1 l-1985 to senior selection grade with the concurrence; of the Commission with effect from 1-1-1977. Later his date of promotion to the senior selection grade was changed from 1-1-1977 to 1-2-1983 and again by another order to 1-4-1981. In the counter affidavit filed on behalf of the respondents, now it has b?en admitted that the petitioner could have been promoted to senior selection grade post with effect from 1-1-1977 aad there was no justification to change the date of his promotion. 14. In the counter affidavit filed on behalf of the respondents, now it has b?en admitted that the petitioner could have been promoted to senior selection grade post with effect from 1-1-1977 aad there was no justification to change the date of his promotion. 14. For the reasons mentioned above, this writ application is allowed and the impugned communication dated 21-11-1986 (Annexure-7) and the notification dated 3-12-1987 (Annexure-13) are quashed. I further direct the respondents to fix the date from which the petitioner sbould have been promoted in the senior selection grade and to give him other consequential benefits. We were informed that the question of appointment of a regular director of Animal Husbandry is pending tor some time before the State government in view of the different claims made by the officers of the Department. It is expected that a decision in respect of the appointment of regular director, Animal Husbandry, shall be taken by the State Government at au early date ignoring the impugned communication dated 21-11-1986 and notification dated 3-12-1987 aforesaid. In the circumstances of the case, there will be no order as to costs. Writ application allowed.