JUDGMENT 1. This special appeal is directed against the order dated 5.8.1993 passed by the learned Single Judge whereby the appellant's Writ Petition No. 3916/1993 under Article 226 of the Constitution of India was dismissed. 2. The appellant was initially appointed as an LDC in the 10th Battalion, RA.C. (IR) vide order dated 12.9.1993 passed by the respondent No. 3 i.e. Commandant, 10th Battalion, RA.C. (IR), Bikaner. The petitioner-appellant moved an application on 17.1.1990 that according to the Government circular dated 16.11.1989, persons who were appointed as LDCs between the period 1.4.1980 to 31.12.84 on temporary basis could be given regular appointment after passing the performance test. The appellant requested for his performance test and the respondent No. 3 i.e. the Commandant who is the appellant's appointing authority, sent a letter on 19.1.1990 to the respondent No. 2 for supplying a copy of the circular dated 16.11.1989. On 6.2.91, the respondent No. 3 called upon the appellant to appear in the performance test. The appellant appeared in this performance test on 6.2.1991 and the result was declared on 7.2.1991 whereat the appellant was declared to be successful. An order dated 15.2.1991 was then issued confirming the appellant on the post of LDC from 1.3.1990. This order is on record as Annexure-4. While the appellant was so continuing as LDC, he moved an application on 25.9.1991 to the respondent No. 2 i.e. Dy. Inspector General of Police, RAC Range, Jaipur, through proper channel, for his promotion to the post of UDC. This application was forwarded by respondent No. 2 vide his letter dated 27.9.1991. The respondent No. 2 sought the factual report with regard to the appellant from respondent No. 3 and the respondent No. 3 vide his letter dated 7.12.1991 sent the factual report along with the service book of the appellant. On 31.5.1993, the respondent No. 2 issued an order calling upon the respondent No. 3 to withdraw his order dated 15.2.1991 by which the appellant was given regular appointment on the post of LDC and was confirmed w.e.f. 1.3.1990. Reliance was placed on sub-rule (3) of Rule 25 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to as 'the Rules of 1957') according to which the performance test is to be held by the Head of the Department. Reliance was placed on sub-rule (3) of Rule 25 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to as 'the Rules of 1957') according to which the performance test is to be held by the Head of the Department. The date 7.7.1993 was fixed for holding such performance test at which the appellant was required to appear. At this juncture, the present appellant instead of appearing in the aforesaid examination on 7.7.1993 filed the writ petition on 2.7.1993 and the same was dismissed by the learned Single Judge vide his order dated 5th August, 1993 summarily. 3. Aggrieved from this order dated 5.8.1993 the present appeal has been filed under section 18 of the Rajasthan High Court Ordinance, 1949. Whereas the writ petition has been dismissed without notice to the respondents in the writ petition, the respondents have filed a reply to the writ petition in the special appeal Itself. There appears to be no dispute and it is also made out from Annexure-6 that the present appellant was appointed as a Lower Division Clerk on 12.9.1983 by the Commandant. It is also not in dispute that the appellant had passed the performance test held by the Commandant i.e. respondent No. 3 on 6.2.1991 and on that basis, the order with regard to his confirmation was issued on 15.2.1991 w.e.f. 1.3.1990, and the impugned order dated 31.5.1993 (Anx. 7) requiring the respondent No. 3 (Commandant) to cancel the order of appellant's confirmation on the post of L.D.C. had been passed without giving any action inspired notice to the appellant before passing the order dated 31.5.1993 (Annexure-7) 4. Shri Tholia, learned counsel for the appellant has invited our attention to the notification (Anx. 3) dated 18th August, 1989, and dated 16.11.1989 (Anx. 2) which is a memorandum issued by the Department of Personnel. As per the notification dated 18.8.1989, the test is to be held by the Head of the Department and the memorandum which has been issued by the Department of Personnel refers to the Head of Department/Appointing Authority. The word 'appointing authority' was not mentioned in the notification dated 18.8.1989. 5. As per the notification dated 18.8.1989, the test is to be held by the Head of the Department and the memorandum which has been issued by the Department of Personnel refers to the Head of Department/Appointing Authority. The word 'appointing authority' was not mentioned in the notification dated 18.8.1989. 5. The learned Single Judge has dismissed the writ petition on the basis of sub-rule (3) of Rule 25 of the Rules of 1957 on the ground that the test which had been conducted and which had been passed by the appellant, was a test which was held by the Commandant and not by the Head of Department as required under Rule 25(3) of the Rules of 1957, and therefore, the order with regard to the appellant's confirmation as had been passed by the respondent No. 3 was not a valid order. Shri Tholia has further referred to Schedule-III of the G.FA.R. wherein a list of Head of the Departments other than Class-I has been given and in this list, at Item No. 142 all RAC Commandants of the Battalions including 10th Battalion has been mentioned as the Head of the Department, other than Class-I. So far as the word 'Head of Department' is concerned, it has been defined in rule 4 of the Rules of 1957 and rule 4(e) reads as under : "(e) 'Head of Department' means the highest administrative authority other than Government as respects a subordinate office;" 'Subordinate office' has been defined in rule 4(h) as under : "Subordinate Office" means any office under the control of Government other than the Secretariat or office of the State Legislature or High Court and the Courts sub-ordinate thereto or Public Service Commission;" 6. From the definitions of 'head of department' and 'subordinate office' as has been mentioned in Rule 4 of the Rules of 1957, it is not discernible that the Commandant could be the Head of the Deptt. because the Commandant is not the highest administrative authority other than the Government with regard to the subordinate office in which the appellant had been appointed. So far as the circular Annexure-2 dated 16.11.1989 which had bee issued by the Department of Personnel is concerned, it has been argued by Shri Khursheed Ahmed Dy. Govt. Advocate that this circular cannot have an overriding effect over the provisions of the Rules of 1957 as per the notification (Anx. So far as the circular Annexure-2 dated 16.11.1989 which had bee issued by the Department of Personnel is concerned, it has been argued by Shri Khursheed Ahmed Dy. Govt. Advocate that this circular cannot have an overriding effect over the provisions of the Rules of 1957 as per the notification (Anx. 3) and if in Annexure-3 the word used was only 'Head of Deptt.' by way of the circular the Deptt. of Personnel could not mention the Head of the Deptt./Appointing Authority in Annexure-2. 7. We have gone through the provisions of sub-rule (3) of Rule 25 of the Rules of 1957 as also sub-rule (8) of Rule 25 of the Rules of 1957 as was amended on 18.8.1989. Rule 25(3) and 25(8) of the Rules of 1957 are reproduced below : 25(3) : Notwithstanding anything contained in rule 7, all persons working as Lower Division Clerks during the period from 8.11.1975 to 313.1978 on ad hoc basis and who, could not appear in or pass the competitive/qualifying examination held by the Commission as yet, shall on availability of permanent vacancies, be made permanent subject to the condition that they pass a Performance Test conducted by the Head of the Department concerned in accordance with the syllabus prescribed in Part-IV of Schedule-I. Such persons shall be allowed three chances to pass the said Test. Provided that if a person cannot pass the said test in three chances he shall be liable to be removed from the service : (i) by giving him one month's notice if he has served temporarily in connection with the affairs of the State for less than three years; and (ii) by following procedure as laid down in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, if he has served for more than three years." 25(8) Notwithstanding anything contained in rule 7, all persons working as LDCs during the period from 1.4.80 to 31.12.84 on urgent temporary basis and those appointed under the specific direction of the Government in the year 1985 on urgent temporary basis to the post of LDC and who have not passed or appeared in the qualifying examination conducted by the Commission under sub-rule (7) of Rule 25, shall on the availability of permanent vacancy be made permanent subject to the condition that they pass a performance test conducted by the Head of the Department concerned within a period of three years in accordance with the Syllabus prescribed in Part-IV of Schedule-I. Such persons shall be allowed three chances to pass the said test to be availed within a period of three years." 8. There is no dispute that the appellant had been appointed between the period 1.4.80 to 31.12.84 and subject to the availability of the permanent vacancies he could be made permanent subject to his passing the performance test conducted by the Head of the Department, within a period of three years. There is no dispute that the appellant had passed the performance test held on 6.2.1991 which was within a period of three years from the date of the amendment i.e. 18.8.89. The submission of Shri Khursheed Ahmed, counsel for the respondents, that no administrative circular can have an over-riding effect over the rules, is not without substance but what we find from the scheme of the Rules of 1957 is that a clear cut provision empowering the D.O.P. to relax the rules in appropriate cases has been made through rule 35 of the Rules in the aforesaid scheme of the Rules of 1957. 9. Thus, the authority of the Department of Personnel to issue circulars like Anx. 2 dated 16.11.89 is clearly discernible under Rule 35. 9. Thus, the authority of the Department of Personnel to issue circulars like Anx. 2 dated 16.11.89 is clearly discernible under Rule 35. Rule 35 makes it very clear that in appropriate cases, the Government may, with the concurrence of the Department of Personnel and Administrative Reforms and in consultation with the Commission by order dispense with or relax the relevant provisions of these rules to such extent and subject to such 'conditions as deemed/considered necessary for dealing with the cases in a just and equitable manner provided that such relaxation shall not be less favourable than the provision already contained in these rules. Thus, it cannot be said that the circular issued by the Deptt. of Personnel on 16.11.1989 had no legal sanction; looking to the fact that the Department of Personnel has used the word 'Head of Department/Appointing Authority' in this circular dated 16.11.1989 and therefore, when the appellant had already passed the performance test conducted by the Appointing Authority, way back in the year 1991 and on that basis orders with regard to his confirmation had also been passed w.e.f. 13.1990, there was no justification for cancellation of such confirmation more particularly when the appellant is continuing in the service since the year 1983 and the confirmation order had been passed by none else but the Appointing Authority itself. Besides this, in the letter (Anx. 6 which was sent to the Dy. I.G.P. RAC, Range Jaipur it has been mentioned that the present appellant had not only passed the performance test but had also passed the examination conducted by the Rajasthan Public Service Commission. Para 2 of the letter (Anx. 6) is reproduced as under : " ;g fd Jh feBw flag dfu"B fyfid ,oa Jh jken;ky dfu"B fyfid nksuksa dze'k% 6-2-91 ,oa 28-8-85 dks dze'k% foHkkxh; n{krk ijh{kk ,oa vkj0ih0,l0lh0 ijh{kk mRrh.kZ dj pqds gSa ftldk bUnzkt budh lsok iqfLrdkvksa esa miyC/k gSA " 10. Moreover, it is not disputed before us that before issuing the order (Anx. 7) and taking a decision to cancel the petitioner's order of confirmation, no opportunity, whatsoever, was afforded to the appellant and no action- inspired notice was given to the appellant. Moreover, it is not disputed before us that before issuing the order (Anx. 7) and taking a decision to cancel the petitioner's order of confirmation, no opportunity, whatsoever, was afforded to the appellant and no action- inspired notice was given to the appellant. It goes without saying and has to be agreed on all hands that an order of regular appointment and an order of confirmation confers a very valuable right upon the civil servant and such a valuable right cannot be taken without giving a prior action inspired notice before taking the decision to his prejudice. In this view of the matter, we are of the opinion that the impugned order (Anx. 7) cannot be sustained in the eye of law and, looking to the scheme of the rules and the relevant circulars the appellants writ petition could not be thrown with reference to sub-rule 3 of Rule 25 of the Rules of 1957. 11. The upshot of the aforesaid discussion is that this special appeal succeeds. The order passed by the learned Single Judge on 5.8.93. is hereby set aside and the impugned order (Anx. 7) dated 31.5.1993 passed by the Dy. I.G.P. RAC Range Jaipur is also quashed and set aside. The appellant consequently stands restored to the position which was conferred upon him by the order passed by the Commandant vide his order dated 15.2.91 and he will be entitled to all consequential benefits. The appeal is allowed. No order as to costs.Appeal Allowed. *******